Case: Kamaruddin N. Shaikh Vs. State of Maharashtra &amp; Others

Writ Petition No. 3681 of 1983 filed by Kamruddin N. Shaikh and Writ Petition No. 4726 of 1986 filed by the Maharashtra Land Development Corporation were dismissed by this Court by judgment and order dated 13th/17th March, 1992. This Court arrived at the conclusion that Survey No.situated at Dahisar, Thane District which subsequently becameof Bandra, Bombay Suburban District, admeasuring 209 acres was a Forest Land. With regard to this land bearing Survey No.and other properties, it is an admitted fact that Bai Fatimabai widow of Haji Alimohammed Haji Cassum had filed Suit No. 3415 of 1947 before this Court for administration of the estate of her deceased husband and for other reliefs. The Court had appointed Receiver in respect of the suit properties. The Court Receiver had invited offers for sale of the properties and the highest offer of Rs. 13,50,000/made by one Khimal Lalchand was accepted on 27th March, 1962. The Receiver was directed to execute a conveyance in favour of the said Lalchand. The said Lalchand thereafter promoted a Company called Veekaylal Investment Company Pvt. Ltd., to take over possession of the land at Dahisar. The Court Receiver handed over possession of the said land to the said Company in November, 1962.2.It is the say of petitioner Kamruddin Shaikh that purchaser M/s. Veekaylal Investment Co. Pvt. Ltd., entered into an Agreement for Sale dated 10th August, 1970 with M/s. VijayAssociates, a partnership firm, for a portion of the land out of Survey No.and that the petitioner was put in possession of the said land on the basis of an Agreement dated 9th September, 1971 with M/s. VijayAssociates. Pursuant to the said Agreement, the petitioner has acquired a legal right to remove clay, mud, stone, murram and of quarrying the hillock on the said land. It is also stated that in 1972, some disputes arose between M/s. Veekaylal Investment Co. and M/s. VijayAssociates, and Short Cause No. 6726 of 1973 was filed in the Bombay City Civil Court at Bombay in which the petitioner was party defendant. That suit was settled outside the Court and a fresh Agreement was signed between the parties on 29th August, 1974 according to which the petitioner remained in possession of 50 acres out of Survey No.The petitioner is carrying on quarring operation in the said land.3.It is also pointed out that in the inquiry held under section 6, the petitioner, by letter dated 3rd October, 1975, informed the Competent Authority that he was in possession of the land admeasuring 50 acres and that his property interests should be protected. However, without giving any hearing, final order was passed by theOfficer, Bombay Suburban District, Bombay, holding that the land in question was private forest. He has also pointed out that against that order M/s. Veekaylal Investment Co. Pvt. Ltd., filed an appeal bearing No. Rev. Forest 1 of 1975 before the Maharashtra Revenue Tribunal. That appeal was dismissed by the Tribunal. The petitioner says that thereafter, he received letter dated 2nd January, 1976 from the Divisional Forest Officer, Borivali, directing to stop quarrying operations and to pay royalty to Forest Department. On the advice of his Advocate, the petitioner filed S.C. Suit No. 1918 of 1976 on 17th March, 1976 in the Bombay City Civil Court at Bombay for a declaration that the order issued by the Tahsildar was without jurisdiction and void. The petitioner also prayed for permanent injunction restraining the Tahsildar from taking possession of the land admeasuring 50 acres out of Survey No.Interim injunction was granted in favour of the petitioner in the said suit. It means that the petitioner Kamruddin claims interest in land admeasuring 50 acres only.4.Further, it is also pointed out that by a conveyance deed dated 29th March, 1975 the Court Receiver conveyed about 53 acres of land in favour of the Maharashtra Land Development Corporation (respondent No. 1 in Writ Petition No. 2023 of 1994) and Veekaylal Investment Company (respondent No. 4) was Confirming Party.5.Against the judgment and order dated 13th/17th March, 1992 of this Court, the Maharashtra Land Development Corporation, petitioner in Writ Petition No. 4726 of 1976 preferred Civil Appeal No. 3490 of 1992 before the Supreme Court. In its judgment and order dated 27th August, 1992, the Supreme Court observed that the High Court did not accept the reasons that commended themselves to the Tribunal in reaching that conclusion but came to the conclusion on wholly different grounds. The question essentially was one of fact and the grievance of the appellant before the Supreme Court was that since the High Court took into consideration the material placed before it for the first time by the State, the appellant did not have a reasonable opportunity of traversing the same. The respondent State also urged that they have fresh material to support the finding in its favour recorded by the High Court. In view of the stand taken by both the parties, the Supreme Court set aside the order passed by this Court dated 13th/17th March, 1992 in Writ Petition No. 4726 of 1986 as well as the order dated 29th September, 1986 passed by the Maharashtra Revenue Tribunal in Appeal No. 4 of 1985 and the Supreme Court remitted the matter to the Maharashtra Revenue Tribunal at Bombay for being heard and disposed of afresh after affording to both the parties opportunities of adducing such further documentary evidence as they may desire.6.The Maharashtra Revenue Tribunal after remand allowed the appeal and arrived at the conclusion that the land in question was not a forest land. Against that order dated 4th December, 1992 passed by the Maharashtra Revenue Tribunal, Writ Petition No. 2023 of 1994 is filed by the State Government.7.In the meantime, the petitioner of Writ Petition No. 3681 of 1983 filed Review Application against the order passed in Writ Petition No. 3681 of 1983. That order was set aside by this Court by order dated 16th October, 1995 and the Court directed that the said writ petition be heard afresh on merits along with Writ Petition No. 2023 of 1994 filed by the State of Maharashtra. The Court noted that in view of the decision rendered by the Maharashtra Revenue Tribunal on 4th December, 1992 holding that the entire Survey No.is not a forest or a private forest land and that it has not vested in the State Government, the Review Application was required to be allowed.8.At this stage, we would mention the chequered history of this matter. In August 1975, the Officer authorised by the State Government served notice under(3) of section 35 of the Indian Forest Act, 1927 on Veekaylal Investment Co. Pvt. Ltd. Section 35 of the Indian Forest Act confers power upon the State Government to regulate the use and enjoyment of forests. In the notice, it was stated that in record of right, Survey No. 345 of Village Dahisar was standing in the name of former `Khot Haji Ali Mohammed and a pencil entry was made in the name of the company as the offer made by the company to the Court Receiver was accepted and possession was handed over to the CompanyVeekaylal Investment Co. Pvt. Ltd., who had purchased 209 acres of land from the Court Receiver. After the Maharashtra Private Forests (Acquisition) Act, 1975 came into operation, the Officer authorised by the State Government served notice under section 5 of the Act on Veekaylal Investment Co. Pvt. Ltd., on 8th October, 1975 to hand over possession of the entire area of 209 acres comprising of Survey No.On receipt of that notice, the company filed a reply on 16th October, 1975 raising the dispute that the land was not a private forest.9.Thereafter, after following the procedure under section 6 of the Act, theOfficer, Bombay Suburban by an order dated 11th November, 1975 arrived at the conclusion that the aforesaid land was a private forest within the definition given in Clause (f) of section 2 of the Maharashtra Private Forests (Acquisition) Act, 1975 read with Clause 2 of the Maharashtra Private Forests (Acquisition) (Amendment) Ordinance, 1975 and that the land was jungle land as referred to in the mortgage deed executed in the year 1900.10.Against that order, Veekaylal Investment Co. Pvt. Ltd., preferred an Appeal before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal, after discussing elaborately the contentions raised by the parties, dismissed the appeal by order dated 20th March, 1976. Against that judgment and order, Maharashtra Land Development Corporation preferred Miscellaneous Petition No. 512 of 1976 before this Court. In that petition, a consent order was passed on 19th April, 1984 by this Court. It was agreed that with regard to its land, the petitioner was permitted to raise the dispute under section 6 of the Maharashtra Forests (Acquisition) Act, before the Competent Authority and also the question of vesting in the State Government, the land purchased by the Maharashtra Land Development Corporation under the conveyance deed dated 29th March, 1975. After the remand, the Maharashtra Land Development Corporation filed a short affidavit on 16th October, 1981 before the Competent Authority stating that the land was not a forest land and that the State Government has not notified the said land in the Government Gazette as a forest land. Against that, the Divisional Manager, Sanjay Gandhi National Park, has filed an affidavit on behalf of the State Government stating that the land in question was a forest land and that it was absolutely necessary in the public interest to preserve it as a forest land. On the record there is notice dated 27th August, 1975 issued under section 35(3) of the Indian Forest Act. Again, an enquiry was held and theOfficer arrived at the conclusion that the land was not a private forest. That order was set aside by the Maharashtra Revenue Tribunal by its order dated 29th September, 1986.11.Against the order of the Maharashtra Revenue Tribunal, the Maharashtra Land Development Corporation filed Writ Petition No. 4726 of 1986. That petition was heard along with Writ Petition No. 3681 of 1983 filed by Kamruddin N. Shaikh. This Court by its order and judgment dated 13th/17th March, 1993 dismissed both these petitions. Against the order passed in Writ Petition No. 4726 of 1986, as stated above, the petitioners preferred Special Leave Petition and the Supreme Court had remanded the matter to the Tribunal. Further, against the judgment and order passed by this Court in Writ Petition No. 3681 of 1983, the petitioner filed Review Application and that Review Application was allowed by order dated 16th October, 1995.12.It is to be clearly stated that against the order dated 11th November, 1975 passed by theOfficer, Veekaylal Investment Company preferred an Appeal, being Appeal No. Rev. Forest 1 of 1975, before the Maharashtra Revenue Tribunal. That Appeal was dismissed by the Tribunal by its order dated 20th March, 1976. The aforesaid order dated 20th March, 1976 of the Maharashtra Revenue Tribunal was challenged by the Maharashtra Land Development Corporation in Writ Petition No. 4726 of 1986. It is to be noted that Veekaylal Investment Company did not adopt any proceeding to challenge the concurrent findings recorded by theOfficer and the Maharashtra Revenue Tribunal to the effect that the land in question was a private forest. It is also to be noted that though the Maharashtra Land Development Corporation was claiming interest in the land through Veekaylal Investment Company, it was claimed by the Corporation that the Corporation was not given notice and was not aware of the proceedings adopted by Veekaylal Investment Company. Hence, the real dispute before the Tribunal was only with regard to 53 acres of land purchased by the Maharashtra Land Development Corporation.13.By the impugned order, the Tribunal arrived at a conclusion that land bearing Survey No.admeasuring 209 acres was not a forest land on the appointed date i.e. 30th August, 1975 under the provisions of the Maharashtra Private Forest (Acquisition) Act, 1975. The Tribunal further held that the land was neither a forest within the meaning of the entire sectionof the Act nor private forest under section 2(f) of the Act.

Reasoning:
20.Apart from the above description, other revenue records also establish that Survey No. 345 which is divided into three parts i.e. Survey No.was a forest land. Mutation Entry effected onand certified on(Annexure `01 before the Tribunal), clearly mentions that on the basis of the Government Notifications dated 11th January, 1947 and 20th April, 1948, land bearing Survey No. 345 was divided into three parts viz., Survey No.admeasuring 209 acres 25 gunthas (forest),admeasuring 365 acres (National Park) and Survey No.admeasuring 75 acres 17 gunthasadjoining to this land part of Survey No. 345 is the Sanjay Gandhi National Park which is a forest land. Apart from this aspect, Survey No. 345 was divided into three parts only after acquisition of land for the Sanjay Gandhi National Park. This also clearly establishes that the land in question is lying within or being a forest and is, therefore, forestis contended that quarrying of stones from the area itself would indicate that the land is not a forestland. This submission cannot be accepted because section 35(i) of the Indian Forest Act empowers the State Government by notification in the Official Gazette, inter alia, to regulate or prohibit the quarrying of stone or the burning of lime or charcoal or the collection or removal of anyor its subjection to any manufacturing process. Therefore, if quarrying operation is carried out in a forest, it would mean that the land is not a forestour view, the entire approach of the Tribunal in arriving at the conclusion that Survey No.was not a forest land is patently erroneous. The conclusions are arrived at by ignoring the material evidence on record. The Tribunal has overlooked the fact (i) that all throughout, Survey No. 345 admeasuring 650 acres of land was considered to be a forest land, (ii) that out of the said Survey No. 345, 365 acres of land was acquired for the National Park, (iii) that the remaining land would also be forest land. In record of right also, the land was described as forest gurcharan land (meaning cattle grazing forest). Merely because stone quarrying operation is carried out, it would not mean that the land ceased to be a forestseems that without proving the documents which were produced on record before the Tribunal, the Tribunal has considered them but it hardly would make any difference in arriving at the aforesaid conclusion that the land was a privateis to be noted that Exhibit `A to the petition itself indicates that the petitioner had filed an Application on 30th October, 1975 stating that he was in possession of an area of over 50 acres out of Survey No.since August, 1971 and was carrying out quarrying operations under various agreements with M/s. Veekaylal Investment Co. Pvt. Ltd., as owners of the area. It is also stated that the said land cannot be called a private forest. Exhibit `B to the petition is a letter dated 1st February, 1975 wherein the petitioner has stated that he was a party having interest of a permanent nature and, therefore, correspondence on the subject matter should be sent to him invariably. It was also stated that the petitioner had incurred huge expenditure of several lacs of Rupees to develop the land in his possession and acquisition of this land would bring to an end the activities giving employment to hundreds of labourers and would also ruin him completely. That representation was rejected by observing that it hardly requires any consideration because of the finding given in the previous paragraphs of the order. The petitioner was in know of the proceedings which were pending before theOfficer. He was also in know of the order passed by the authority and yet he has not preferred any appeal under the Act before the Tribunal.41.Considering the aforesaid fact, it cannot be said that the petitioner was not heard by theOfficer. As stated above, at no point of time, parties have asked for leading any oral evidence. The petitioners representations were considered by the authority.In any event, at the relevant time the property was standing in the name of the Court Receiver and also, as his assignee by pencil entry, in the name of Veekaylal Investment Company. The company and the otherinterested parties had made submissions in writing and those submissions were not accepted.