CHINTAMANI GAJANAN VELKAR .. -

STATE OF MAHARASHTRA & ORS. c

FEBRUARY 1, 2000

[M, JAGANNADHA RAO AND A.P. MISRA, JJ.)

Maharashtra Private Forests (Acquisition) Act, 1975 : Sections 2(/) 6 and 24(1).

c Indian Forest Act, 1927: Section 35(3).

Land-Holder--l'rivate forests land-Vesting of in State-Act come into force on 30.8.1975--Notice issued to landowner before appointed day-Effect

of-Word 'issue' used in Section 2(f)--Whether means service of notice on the land holdeifference between Section 2(f) (ii) and (iii) dis- D cussed-Held, in cases where a fmal notification has been issued under

Section 35(1) the entire notified land would automatically vest in the State on the appointed date, namely, 30.8 .. 197ut in the case where only notice has been issued as per Section 35(3) before the appointed day, namely, 30.8.1975-The Maharashtra Legislature thought that the entire property

E covered by the notice in the State need not vest but it excluded 2 hectares out of the forest land held by the land holde~171at was the consideration for not allowing the benefit of an enquiry under Section 35(3) and for not allowing notification to be issued under section 35(i) of the 1927 Act.

Banarasi Debi v. lncome Tax Officer, District IV, Calcutta & Ors., AIR F (1964) SC 1742 and Commissioner of Wealth Tax, U.P. and Anr. v. Kundan Lal Behari Lal, [1975] 4 SCC 844, held inapplicable.

Commissioner of Income Tax~ ... Bababhai Pitambardas (HUF), [1993] Suppl. 3 SCC 530, relied on.

G Words and Phrases:

Word 'issue'-!'fleaning of-Section 2(f) of the Maharashtra Private """ Forests (Acquisition) Act, 1975.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 781 of

H 2000.

From the Judgment and Order dated 11.12.97 of the Bombay High A Court in L.P.A. No. 199 of 1997 in W.P. No. 4779 of 1996.

Rajiv Dutta, Manoj Kr. Singh and Uday Kumar for the appellant.

V.A. Mohta, S.S. Shinde, G.B. Sathe, D.M. Nargolkar and S.V.

Deshpande for the Respondents.

The following Order of the Court was delivered :

Leave granted.

Heard learned counsel on both sides.

In this appeal, a limited notice was issued at the time of admission on 29.7.1998.

The appellant before us is the land holder. He was in possession of various extents of lands. Now we are concerned only with Survey Nos. 31, D 32 and 33 in the village Versave in District Thane comprising various extents of lands in all roughly amounting to 20 hectares. The appellant filed an application under Section 6 of the Maharashtra Private Fon:sts (Acquisition) Act, 1975 which provides for settlement of disputes in relation to private forest land. Section 6 reads as under :

"Section 6 : Where any question arises as to whether or not any forest is a private forest, or whether or not any private forest or portion thereof has vested in the State Government or whether or not any dwelling house constructed in a forest stands acquin:d under this act, the Collector shall decide the question, and the decision of the Collector shall, subject to the decision of the 'Tribunal in appeal which may be preferred to the Tribunal within 60 days from the date of the decision of the Collector, or the order of the State Government under Section 18, be final."

Initially the Deputy Collector passed an order on 25.9.80 in favour G of the appellant holding that the land was water-logged and could not be treated as forest land and he also held that the land did not vest in the State of Maharashtra on 30.8.1975 when the Maharashtra Act, 1975 came into force inasmuch as notice was issued under Section 35(3) of the Indian Forest Act 1927 on 29.8.1975 and was not served on the landholder before 30.8.1975 but was served only thereafter on 12.9.1975. ln other words, the H

A Deputy Collector held that for the purpose of the definition of "Private

forest" under Section 2(t) of Maharashtra 1975 Act, it was necessary that notice be not only issued under Section 35(3) of the Indian Forest Act 1927, but should have also been served on the land holder before the commencement of Maharashtra Act on 30.8.1975. He, therefore, held that the private forest land of the appellant did not vest in the State under the 1975 B Act on 30.8.75.

On appeal by the State, the Revenm: Tribunal Maharashtra, reversed this view of the Dy. Collector dated 25.9.1980 and held that inasmuch as notice was issued on 29.8.1975 under Section 35(3) of the Indian Forest C Act 1927, the private forest of the appellant vested in the Stalt: even though the notice was not served on the appellant before 30.8.1975. The Tribunal, therefore, remanded the matter by its order dated 23.8.83 and observed that the Deputy Collector should hold consequential detailed enquiries and dispose of the matter according to law.

D Thereafter, after the remand order, the Deputy Collector passed an order on 29.6.1992. The appellant raised a question of issuance of 'notice' once agam. ut the said officer hdd that this question had become final by the order of the Tribunal above-mentioned and could not be reopened.

The appellant then went before the Tribunal which also held by its order dated 28.2.1995 that this question could not be reopened. The Review E Application filed by the appellant was dismissed on 26.7.1996. The appellant then filed writ petition before the High Court which was dismissed on 24.1.1997 by the learned Single Judge. Letters Patent Appeal filed by the appellant was also dismissed on 11.12.1997. The Letters Patent Bench passed the following order :

"Heard the learned counsel for the Appellant.

In our view, there to no substance in this Letters Patent Appeal.

The findings given by the: Court below are confirmed by the learned Single Judge. Accordin~~ to the order of the Maharashtra Revenue Tribunal, in the lands bc:aring Survey Nos. 31, 32 and 33 of Village Versova, there were 2639, 352 and 920 trees, respectively. Considering this aspect and considering the provision of Section 2( c) (i) of the Maharashtra Private Forests (Acquisition) Act, the Tribunal has arrived at the conclusion that the lands in question are 'forest', to which the provisions of the Maharashtra private Forests (Acquisition) Act, therefore, the same is dismissed.'

...

C.G. VELKAR v. STAIB 573

The only question that arises before us for consideration is whether A the word 'issue' used in Section 2(f) of the Maharashtra Act, 1975 means service of notice on the land holder.

Section 2(f) of the Maharashtra Act 1975 reads as follows :

''Section 2(f) : 'Private fore st" means any forest which is not the B property to Government and includes -

(i) Any land declared before the appointed date to be a forest under Section 34A of the Forest Act :

(ii) any forest in respect of which any notification issued under sub-section (1) of section 35 of the Forest Act, is in force immediately before the appointed day;

(iii) any land in respect of which notice has been issued under sub-secc

tion 3 of Section 35 of the Forest Act but excluding an area not exceeding 2 D hectares in extent as the collector may specify in this behalf;

(iv) land in respect of which a notification has been issued under section 38 of the Forest Act;

(v) in a case where the State Government and any other person are E jointly interested in the forest, the interest of such person in such forest;

(vi) sites of dwdling house~ constructed in such forest which Mc considered to be necessary for the convenient enjoyment or use of the forest and lands appurtenant thereto."

We are concerned only with sub-clause (iii) of Section 2(f). The definition of "private forest" has been expanded in Maharashtra Act, 1975

so as to take in various categories of lands which are not Government forest land. One such category of land is mentioned in sub-clause (iii) of Section 2(f). Learned counsel for the appellant has relied upon the decision of this Court reported in Banarsi Debi v. Income Tax Officer, District IV, Calcutta G & Ors., AIR (1964) SC 1742, and (Commissioner of Wealth Tax, U.P. and Anr. v. Kundan Lal Behari Lal, [1975) 4 SCC 844, to contend that in certain situations the word 'issue' can be construed by this Court as amounting to actual service. On the other hand, learned senior counsel Mr. Mohta has placed reliance on the decision of this Court reported in Commissioner of H

A Income Tax v. Bababhai Pitambardas , (HUF) [1993J Suppl. 3 SCC 530.

Before dealing with this question, it is necessary also to refer to Section 35 of the Central Act 1927 which has been referred to in St:ction 2(t)(iii) of the Maharashtra Act, 1975. Section 35 of the 1927 Act reads as follows

"Section 35 - Protection of fort:sts for special purposes: (1) The State Governments may, by notificat:, on in the Official Gazette :

(i) regulate or prohibit in any forest -

(a) the breaking up or clearing of the land for cultivation;

(b) the pasturing of cattle;

( c) the filing or clearing of the vegetation;

( d) the girdling, tapping or burning of any tree or the stripping off the bark or leavt:s from any trees;

( e) the lopping and pollarding of trees;

(t) the cutting, sawing; conversion and removal of trees and timber; or

(g) the quarring of stone or the burning of lime or charcoal or the collection OT reIUoval of any forest produce or its subjection to any manufacturing process;

(ii) regulate in any forest the regeneration of forests and their protection from fire;

When such regulation or prohibition appears necessary for any of the following purposes :-

(a) for conservation of trees and forests;

(b) for the preservation and improvement of soil or the reclamation of s<>Jine or water-logged land, the prevention of landslips or of tht~ formation of ravines and torrents, or the protection of land against erosion, or the deposit thereon of sand, stones or gravel;

(c) for the improvement of grazing;

( d) for the maintenance of a water supply in springs, rivers and tanks;

( e) for the maintenance, increase and distribution of the

supply of fodder, leaf manure, timber or fuel; B

(f) for the maintenance of reservoirs or irrigation works and hydre-electric works;

(g) for protection against storms, winds, rolling stones, floods and drought;

(h) for the protection of roads, bridges, railways and other lines of communication; and

(i) for the preservation of the public health.

(2) The (State Government) may, for any such purpose, construct at its own expense in any forests such work as it thinks fit.

(3) No notification shall be made under sub-section (1) nor shall

any work be begun under sub-section (2), until after the issue by E an officer authorised by the State Government in that behalf of a notice to the owner of such forest calling on him to show cause within a reasonable period to be specified in such notice why such notification should not be made or work constructed as the case may be, and until his objections, if any, and any evidence he may produce in support of the same, have been heard by an officer F duly appointed in that behalf and have been considered by the State Governments.

It will be noticed that the procedure under Section 35 of the 1927 Act is that a notice is to be issued to the landholder under Section 35(3), G it is to be served, and his objections heard. If they are rejected, then a notification is to be issued under Section 35(1) treating the land as forest land.

It is true that the Maharashtra Act, 1975 which came into force on 30.8.1975 expended the definition of private forest in Section 2(f). The H

SUPREME COURT REPORTS

(2CGOJ 1 S.C.R.

A question for consideration is whether the appellant's land falls within sub-clause (iii) of Section 2(f).

It will be notict:d that there is differenet: between St:ction 2(f)(ii) and (iii). So far as sub-clause (ii) of Section 2(!) is concemt:d, if refers to various lands in respect of which Notification has been issued under B Section 35(1) of the Indian Forest Act, 1927 before the appointed day 30.8.1975

But sub-clause (iii) of Section 2(f) does not refer to any Notification that could be issued under Section 35(1) of the Indian Forest Act, 1927. It C only refers to tht notiet: that could be initially issued under sub-section (3) of Section 35. In a normal case, as already statt)d, the notice has to be issued under Section 35(3) and should be served on tht) land holders, objections thereto would have to be heard and an order could be passed treating them as forest land only after the Notification under Section 35(1) was issued.

D Thus in Section 2(f) we find lands in respect of which Notification under Section 35(1) has been issue, d. They fall under sub-clause (ii) of Section 2(f), being cases in which notice has been issued to the land holder under Section 35.(3) of the 1927 Act, he had been heard and tht:n his objections hav.: been rejected and then the final Notification has been E issued under Section 35(1) of the Indian Forest Act, 1927. Under Section 2(f)(ii) such lands automatically vest in the State on 30.8. 75 if the notification under Section 35(1) of the 1927 A..:t has been issued hdon: 30.8.75.

Then: is no difficulty here. But the question ;, in respect of the cases when:

only notice has been issued under Section 35(3) bdore the appointed day F namely, 30.8.1975. Question is whether the Legislature contemplated that there should be no further inquiry and there would be no need for any Notification under Section 35(1) of the 1927 Act?

It is true that the repealing provision - Section 24(1) of the Maharashtra Act, 1975 merely repeals Section 35 of the Indian Forest Act, G 1927 and appears prim a f acie prospective but the question is whether there is anything in the repealing Act of 1935 which can show an intention on the part of the Maharashtra Legislature that the further procedure contemplated by St:ction 35(3) - namdy, notice being issued under St:ction 35(3) being served on the owner and the Notification under Section 35(1) H being issued - has been disperu; ed with.

In our view, the proper clue in this behalf is provided by subclause A

(iii) of Section 2(f) itself. It will be noticed that in cases where a final Notification has been issued under Section 35(1) the entire notified land would automatically vest in the State on the appointed date, namely, 30.8.1975. But in the case where only notice has been issued as per Section 35(3) before the appointed day, namely, 30.9.1975 - the Maharashtra Legislature thought that the entire property covered by the notice in the State need not vest but it excluded 2 hectares out of the forest land held by

the land holder. That was the consideration for aot allowing the benefit of an enquiry under Section 35(3) and for not allowing Notification to be issued under Section 35 ( 1) of the 1927 Act.

In our view, the Legislature has not made any discrimination in regard to the matters where Notification had been issued under Section 35(1) of the Forest Act, 1927 on the one hand and in cases where Notificac

tion had not been issued and the matter stood till at the stage of notice under Section 35(3) on the other. In latter cases, Legislature thought it fit D to exclude 2 hectares of the land holder from vesting. If that was done, a notice that was issued under Section 35(3) would itself be sufficient and if such notice was issued before the appointed day i.e. 30.8.1975 the land vest in the State subject, of course that the Collector has to specify the particular extent of 2 hectares which can be retained by the land holder. There is no need for any service of such notice before 30.8.75, nor for an inquiry E nor for a notification under Section 35(1).

In the circumstances, we are of the view that the decision cited by the appellant namely, Banarsi Debi v. Income Tax Officer, District Iv, Calcutta & Ors., AIR (1964) SC 1742 and Commissioner of Wealth Tax, F U.P. & Anr. v. Kundan Lal Behari Lal, (1975] 4 SCC 844, wherein the word "issue" has been construed as amounting to "service" are not relevant for interpreting the word "issue" used in Section 2(f). The word has to be construed in the context in which it is used in the Statute as held in Commissioner of Income Tax v. Balabhai Pitambardas, (HUF) (1993) 3 sec 530.

For the aforesaid reasons, while accepting the view of the High Court and the trial court, we modify the order by directing that the Deputy Collector should specify 2 hectares of land out of Survey Nos. 31, 32 and 33 which could be retained by the appello.nt.

A The Deputy Collector will bear the appellant and pass appropriate orders in rela':ion to the retention of 2 hectares of land. If upon such exclusion, it is found that the appellant is holding land in excess of Ceiling area under any law relating to the land ceilings, it will be for the respondents to take appropriate action :in accordance with law. Subject to the B above, the Deputy collector will specify which 2 hectares can be retained by the appellant. The appeal is disposed of with the above modification.

No order as to costs.

T.N.A.

Appeal disposed of.