Saturday 19 March 2022

Whether agricultural land can be treated as private forest land?

  In the present case, admittedly there is no declaration /

notice / notification in respect of the said lands being classified and

declared as 'private forest'. Further under the provisions of Section 2

read with Section 3 of the State Act, the said lands have to be a 'forest' before it could be classified as a 'private forest' and thereafter declared to be a 'reserved forest'. According to the Petitioners the provisions of Section 3(2) of the State Act expressly excludes land under cultivation i.e. 'agricultural land' even if it is comprised in a 'private forest'. The said lands stand outside the purview of the provisions of Section 2 of the Central Act as they are not a forest and if that be so there can be no question of de-reservation or denotification or seeking approval for the use of forest land for non-forest purpose. {Para 12}

13. The entire controversy in the present case has arisen due to

the unilateral Mutation entry No.720 recorded in the Mutation

Register pertaining to the said lands which classified the said lands as 'forest lands'; this mutation entry was solely based on the

communication dated 11.11.2005 addressed by the Respondent No.3 - Deputy Conservation of Forest to the Respondent No.2 - Collector

without any substantive basis / evidence as observed by us.

13.1. We have noted that the said Mutation entry was effected

with reference to the State Act. The Petitioners therefore filed the

statutory appeal seeking adjudication under the provisions of Section 6 of the State Act. However, once the Respondent No.2 - Collector has declared the said lands as 'not private forest' under Section 6 of the State Act, the applicability of the Central Act to the said lands does not arise. As seen, the said lands have been certified as 'agricultural lands' in the various revenue records and as such under Section 3(2) of the State Act, on this count also they cannot be deemed to be 'forest land' much less private forest land. Save and except the unilateral Mutation entry, admittedly there is no other evidence or material placed on record by the Respondents to classify, certify or notify the said lands as 'forest land'. The reasoned decision/order passed by the  Respondent No.2 - Collector declaring the said lands as 'not private forest' under the State Act therefore decides the status of the said lands.

14. Under Section 2 of the Central Act the approval of the

Central Government is necessary only if the land is a forest and if the State Government passes an order directing that any reserved forest shall cease to be reserved; or any forest land is used for non-forest purpose; or any forest land is assigned to a private person or a nongovernment organization; or any forest land may be cleared of trees or re-afforestation. Thus it is clear that for the provisions of Section 2 of the Central Act to apply, it it necessary in the first place that the said lands have to be 'forest land'. However if the said lands are not forest land then the provisions of Section 2 of the Act of 1980 are inapplicable and thus the permission sought by the Respondent No.2 - Collector from the Central Government with respect to its decision of

declaration of the said lands as 'not private forest' is wholly illegal.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 95 OF 2020

 Sankalp Resorts Limited  Vs State of Maharashtra,

CORAM : S. J. KATHAWALLA & MILIND N. JADHAV, JJ.

PRONOUNCED ON : 15.03.2022.

JUDGMENT (Per : S.J. Kathawalla & Milind N. Jadhav, JJ.)

 By the present petition, the Petitioners have prayed for the

following reliefs:

"(a) That this Hon'ble Court be pleased to issue a Writ of

Mandamus or a writ, order or direction in the nature of

Mandamus or any other appropriate writ, order or

direction directing the 2nd Respondent to issue his

Judgment under Section 6 of the Maharashtra Private

Forest (Acquisition) Act, 1975 in terms of its Order

dated January 13, 2011 without recourse to the Union

of India under The Forest (Conservation) Act, 1980;

(b) Without prejudice to prayer (a) above and strictly in

the alternative thereto, the Hon'ble Court be pleased to

direct the 5th Respondent to grant its approval under

Section 2 of The Forest (Conservation) Act, 1980

within such time as this Hon'ble Court may deem fit

and/or proper;

(c) That this Hon'ble Court be pleased to issue a Writ of

Mandamus or a writ, order or direction in the nature of

Mandamus or any other appropriate writ, order or

direction directing the 4th Respondent to:

(i) delete the Mutation Entry No.720 dated

December 24, 2005 in the revenue records

maintained in respect of the lands described in

Exhibit I hereto;

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(ii) intimate all concerned Land and Revenue

Authorities to update their respective records of

the deletion of Mutation Entry No.720 dated

December 24, 2005."

2. Before we advert to the submissions made on behalf of the

respective parties, it will be apposite to state the relevant facts in brief.

2.1. The Petitioner No.1 is the owner of following six parcels of

land situated in revenue village Bhushi, Taluka Maval, District Pune,

within the limits of the Municipal Council of Lonavala (for short: "the

said lands"):-

SURVEY

NO.

AREA

H R

113 A/1 1 94.25

113 B/2 1 74

113 B/1 1 10

114 2 27

115 5 38

116/1 3 85

2.2. The Petitioner No.1 has assigned development rights to the

Petitioner No.2 in respect of the said lands under registered

development agreements.

2.3. The Petitioners assert that the following documentary

evidence in respect of the said lands prove that the said lands are /

were agricultural lands:

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i. 7/12 extracts i.e. revenue records of the said lands;

ii. judgment and order dated 31.07.1976 passed by the

Maharashtra Revenue Tribunal, Poona in Ceiling Appeal No.

498 of 1976 in respect of Survey Nos. 113 and 113A;

iii. order dated 22.01.1992 passed by the Sub-Divisional Officer,

Haveli, Pune in respect of Survey Nos. 113/A/1, 113/B/2

and 113/B/1 regularizing the transfer of said lands in favour

of the Petitioner No.1's predecessor in title;

iv. commencement certificate dated 14.05.1997 issued by the

Lonavala Municipal Council in respect of Survey Nos.

113/A(pt), 113/B(pt), 114, 115 and 116/1;

v. final development plan of the year 1978 classifying the said

lands as 'agricultural lands';

vi. certificate dated 02.11.2011 issued by the Lonavala

Municipal Council certifying that the said lands were

included in the 'agricultural' or 'non-development' plan

approved on 20.01.1978;

vii. zone certificate dated 12.07.2018 issued by the Lonavala

Municipal Council classifying the said lands as 'agricultural

lands'.

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2.4. In view of the above documentary evidence it is the

Petitioners' case that the said lands are not 'private forest land' or

'forest' as contemplated under the provisions of the Maharashtra

Private Forests (Acquisition) Act, 1975 ("the State Act") and/or the

Forest (Conservation) Act, 1980 ("the Central Act").

2.5. On 11.11.2005, the Respondent No.3 - Deputy Conservator

of Forest issued a letter to the Tahsildar - Maval stating that the said

lands along with several other lands stood vested in the State

Government under the provisions of the State Act and the Maharashtra

Private Forest (Acquisition) Rules, 1980 ("the said Rules"). The said

letter further stated that all non-forest activities were permissible on

the said lands only after obtaining prior permission of the Central

Government and necessary mutation entry in the 7/12 extracts of the

said lands be immediately effected and copies thereof be sent to the

Respondent No.3 for record.

2.6. Immediately thereafter Respondent No.4 - Talathi, Taluka -

Lonavala recorded Mutation Entry No. 720 in the Mutation Register

notifying the said lands as 'forest land'. Accordingly the 7/12 extracts

of the said lands were mutated recording the name of the Forest

Department in the 'other rights' column of the 7/12 extracts. By virtue

of this mutation entry the said lands came to be described / declared

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as 'forest lands'.

2.7. Since the Mutation entry No. 720 was entered into with

reference to the provisions of the State Act, the Petitioners raised a

dispute and filed three statutory Appeals bearing Nos. 6/2008, 7/2008

and 10/2008 before the Collector under Section 6 of the State Act to

challenge the vesting of the said lands under the State Act and for

setting aside the Mutation Entry No.720. On 13.01.2011, the

Appellate Authority held that the said lands are 'not private forest' and

passed a non-speaking order without giving detailed reasons while

reserving the judgment. The order dated 13.01.2011 reads thus:

"Draft order prepared declaring suit land as 'not private

forest' u/s 6 of M. Pr. Forest act, 1975. Matter referred to

GoI through GoM for permission u/s 2 of Forest

(Conservation) act 1980."

2.8. On 13.01.2011 Respondent No. 2 - Collector referred the

draft order declaring the State lands as 'not private forest' under

Section 6 of the State Act to the State Government for seeking sanction

from the Central Government under Section 2 of the Central Act

before issuing the final order.

2.9. Between 05.10.2011 and 29.03.2018, the Petitioners

addressed 25 letters to the Respondents on 05.10.2011, 11.05.2012,

16.05.2012, 30.05.2012, 30.07.2012, 08.11.2012, 04.01.2013,

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02.05.2013, 09.05.2013, 04.06.2013, 19.09.2013, 20.09.2013,

08.11.2013, 12.12.2013, 24.01.2014, 05.06.2014, 19.07.2014,

29.01.2016, 21.04.2016, 20.06.2016, 25.08.2016, 10.10.2016,

20.10.2016, 13.06.2017, 29.03.2018, inter alia, seeking a copy of a

detailed judgment and speaking order passed by the Respondent No. 2

- Collector and deletion of Mutation entry No. 720 in view of the nonapplicability

of the provisions of Section 2 of the Central Act to the

Petitioners' case.

2.10. On 15.07.2014 the Chief Conservator of Forests

(Mantralaya) addressed a letter to the Respondent No. 2 - Collector

calling upon the Collector to furnish the details pertaining to the said

lands for procuring sanction from the Central Government.

A copy of this letter was endorsed to the Director of the Petitioner

No.1.

2.11. On 16.06.2016 the Private Secretary of the Minister

(Finance & Budget) and Forests (Mantralaya) addressed a letter to the

Petitioner No. 2 informing that the Petitioners' case was forwarded to

the Secretary, Forests for appropriate action.

2.12. In response to the Petitioners' 25 letters addressed between

05.11.2011 and 29.03.2018 as stated above, the Petitioners received

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the aforementioned two letters from the Respondent No. 1 - State.

2.13. On 26.09.2019, the Petitioners filed the present Writ

Petition.

3. Mr. Virag Tulzapurkar, learned Senior Advocate appearing

for the Petitioners after taking us through the pleadings, has made the

following submissions:-

i. that the Central Government permission is not required

under the provisions of Section 2 of the Act of 1980 for

correction or rectification of an incorrect mutation entry in

respect of land which is never designated or classified as

'forest land';

ii. that the said lands are agricultural lands and there is

documentary evidence including the draft speaking order

placed on record to prove that the said lands are not 'forest

lands';

iii. that the Mutation Entry No.720, entered unilaterally and

solely on the basis of the letter dated 11.11.2005 received

from the Respondent No.3 in the revenue record and 7/12

extracts of the said lands, notifying the said lands as 'forest

lands' is illegal and erroneous; the said lands were never

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described and declared as 'forest' or 'private forest' or

'reserved forest' under the provisions of the State Act or the

Central Act; that the Petitioners were never issued any

notices under the provisions of Section 35 of the Indian

Forest Act, 1927 (for short: "the Act of 1927") prior to the

enactment of the State;

iv. that since the Mutation entry No.720 was effected pursuant

to the letter dated 11.11.2005 addressed by the Respondent

No.3 - Deputy Conservator of Forest under the State Act, the

Respondent No.2 - Collector being the Appellate Authority

under Section 6 of the State Act has jurisdiction to hear and

decide the Petitioner's Dispute Application declaring the said

lands as 'forest';

v. that no steps as required under the provisions of Section 4 of

the State Act were taken by the Respondents after the

appointed date, 30.08.1975 i.e. coming into force of the

State Act; the Respondents never contended that the said

lands were 'private forest' or 'forest' or stood acquired under

the State Act or stood vested in the State Government;

vi. that no notification declaring the said lands as 'forest' has

been issued under the provisions of the Act of 1927 prior to

the enactment of the State Act or the Central Act;

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vii. that the said lands are not acquired / never acquired under

the provisions of the State Act and/or the Act of 1927, nor

there is any declaration to the effect that the said lands are

'forest land' or 'private forest' or 'reserved forest' prior to the

insertion of the Mutation entry No.720;

viii. that physical possession of the said lands has always

remained with the Petitioner;

ix. that the Respondent No. 2 - Collector, Pune by his final

judgment and order dated 13.01.2011 has specifically held

that the said lands are 'not private forest'; that the reasoned

order of the Respondent No.2 - Collector declaring the said

lands as 'not private forest' rests the issue in favour of the

Petitioner and therefore the provisions of Section 2 of the

Central Act are inapplicable to the said lands;

4. PER CONTRA, Mr. Ashutosh Kulkarni, learned Advocate

appearing on behalf of Respondent Nos.1 to 4 has drawn our attention

to the Affidavit-in-Reply dated 05.03.2020 filed by Sanjay Baburao

Marne, Assistant Conservator of Forests, Pune Forest Division and

further Affidavit-in-Reply dated 16.04.2021 filed by Sandesh Ravindra

Shirke, Sub-Divisional Officer, Taluka - Maval, District - Pune and

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contended that the draft order by the Collector declaring the said

lands as 'not private forest' requires the permission of the Government

of India under the provisions of Section 2 of the Central Act and until

such permission is received, the said lands are deemed to be 'forest

land'. He has made the following submissions to oppose grant of

reliefs in the present petition:

i. that the draft order dated 13.01.2011 and the reasoned

speaking order annexed to the Affidavit-in-Reply dated

16.04.2021 declaring the said lands as 'not private forest' has

no existence in law and cannot be relied upon by the

Petitioners for seeking any reliefs much less the reliefs

sought in the petition; that the draft order shall become final

only on receipt of the permission from the Government of

India under the provisions of Section 2 of the Central Act

and only thereafter can come into force;

ii. that the condition for seeking permission under Section 2 of

the Central Act is just, legal and absolutely mandatory and

cannot be dispensed with under any circumstances as

Section 2 of the Central Act begins with a non-obstante

clause having a complete overriding effect on all the laws in

force in the State, including the State Act; the said Section

explicitly prohibits the State Government or any other

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Authority from issuing any order without the prior approval

of the Central Government;

iii. that under the provisions of sub-section 3 of Section 3 of the

Central Act there is a deeming provision which states that all

'private forests' vested in the State Government shall be

deemed to be 'reserved forest' within the meaning of the

Central Act; thus to declare that any 'reserved forest' shall

cease to be 'reserved forest' or that any 'forest land' be used

for any 'non-forest purpose', the prior permission of the

Central Government is a condition precedent for the State

Government to issue / pass the final order;

iv. that in the present case the Petitioners desire to establish a

resort, hotel, club and other ancillary activities on the said

lands, which is admittedly for 'non-forest purposes';

therefore on a cumulative reading of Section 2 of the Central

Act with Section 6 of the State Act, when a case is under

consideration under Section 6 of the State Act, before

issuing the final declaration under Section 6, prior

permission of the Central Government is required to be

obtained;

v. that in terms of the State Government circular dated

16.12.2004, in respect of enquiry under Section 6 of the

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State Act, it is mandatory on the part of the Collector to

prepare the proposal and submit the same to the State

Government for seeking permission from the Central

Government under the provisions of Section 2 of the Central

Act and only after receipt of permission, issue the

order/certificate under the provisions of Section 6 read with

Section 22 of the State Act; that in the present case

Respondent No.2 - Collector has referred the Petitioner's

case to the State Government for seeking permission under

Section 2 of the Central Act and the same is awaited.

4.1. In view of the above submissions, Advocate Mr. Kulkarni has

prayed for dismissal of the present Writ Petition.

5. Mr. Mandar Limaye, learned Advocate appearing for

Respondent No.5 - Union of India (Central Government) has drawn

our attention to the Affidavit-in-Reply dated 24.08.2020 filed by Shri.

Chandulal Tashildar, Assistant Inspector General of Forest, Ministry of

Environment, Forest and Climate Change, Nagpur and has contended

as follows:

i. that though it is the case of the State Government that the

draft order is referred to the Central Government for

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obtaining approval under the provisions of Section 2 of the

Central Act, the Ministry of Environment and Forest is not in

receipt of any such proposal / case from the State

Government of Maharashtra in respect of the said lands;

ii. that the said lands fall within the ambit and purview of the

State Government of Maharashtra and the provisions of the

State Act and since the State Government is the repository of

the land records of the forest areas/lands, it is the primary

responsibility of the State Government to determine the

status of the said lands or any parcel of land in the State as

to whether the same is a 'private forest', 'reserved forest'

and/or 'forest' under the provisions of the State Act while

giving due regard to the provisions of the Central Act;

iii. that in the present case after following the due process of

law and enquiry as contemplated under the provisions of

Section 6 of the State Act, the draft speaking order produced

on record by the State Government has declared the said

lands as 'not private forest' and the Central Government has

no role to play in the same.

5.1. Advocate Mr. Limaye has called upon the Court to pass

appropriate orders.

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6. We have perused the material on record, Affidavit-in-Reply

filed on behalf of the Respondents, considered the submissions made

by the learned Advocates for the parties and the statutory provisions

relied upon by them.

6.1. The issue as to whether the said lands are 'forest land' /

'private forest' / 'reserved forest' is now put to rest by virtue of the

draft speaking order passed by the Respondent No.2 - Collector

declaring the said lands as 'not private forest'.

6.2. The only question that now arises for determination is

whether the draft speaking order is subject to the provisions of Section

2 of the Central Act and whether the approval of the Central

Government is a condition precedent before issuing the final order.

Depending upon this adjudication, the Petitioners have sought deletion

of the Mutation entry No. 720 as a consequential relief.

7. Before we proceed to give our findings, it will be apposite to

refer to the relevant statutory provisions for adjudicating the present

case.

7.1. Section 2(c-i) of the State Act defines 'forest' and reads

thus:-

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"(c-i) "forest" means a tract of land covered with trees

(whether standing, felled, found or otherwise), shrubs,

bushes, or woody vegetation, whether of natural growth or

planted by human agency and existing or being maintained

with or without human effort, or such tract of land on which

such growth is likely to have an effect on the supply of

timber, fuel, forest produce, or grazing facilities, or on

climate, stream flow, protection of land from erosion, or

other such matters and includes -

(i) land covered with stumps of trees of forest;

(ii) land which is part of a forest or lies within it or

was part of a forest or was lying within a forest on the

30th day of August, 1975;

(iii) such pasture land, water-logged or cultivable or

non-cultivable land, lying within or linked to a forest,

as may be declared to be forest by the State

Government;

(iv) forest land held or let for purpose of agriculture

or for any purposes ancillary thereto;

(v) all the forest produce therein, whether standing,

felled, found or otherwise."

7.2. Section 2(f) of the State Act defines 'private forest' and reads

thus:-

"2(f). "private forest" means any forest which is not the

property of the Government and includes,

(i) any land declared before the appointed day 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 a notice has been

issued under sub-section (3) of section 35 of the

Forest Act, but excluding an area not exceeding

two 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 jointly interested in the forest,

the interest of such person in such forest;

(vi) sites of dwelling houses constructed in such forest

which are considered to be necessary for the

convenient enjoyment or use of the forest land

lands appurtenant thereto;"

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7.3. Section 3 of the State Act provides for vesting of private

forests in the State Government and reads thus:-

"3. (1) Notwithstanding anything contained in any law for

the time being in force or in any settlement, grant,

agreement, usage, custom or any decree or order of any

Court, Tribunal or authority or any other document, with

effect on and from the appointed day, all private forests in

the State shall stand acquired and vest, free from all

encumbrances, in, and shall be deemed to be, with all rights

in or over the same or appertaining thereto, the property of

the State Government, and all rights, title and interest of the

owner or any person other than Government subsisting in

any such forest on the said day shall be deemed to have been

extinguished.

(2) Nothing contained in sub-section (1) shall apply

to so much extent of land comprised in a private forest as is

held by an occupation or tenant and is lawfully under

cultivation on the appointed day and is not in excess of the

ceiling area provided by section 5 of the Maharashtra

Agriculture Lands (Ceiling on Holdings) Act, 1961, for the

time being in force or any building or structure standing

thereon or appurtenant thereto.

(3) All private forests vested in the State Government

under subsection (1) shall be deemed to be reserved forests

within the meaning of the Forest Act."

7.4. Section 6 of the State Act pertains to raising of a dispute by

the land owner and deals with the power of the Collector to decide the

dispute / question as to whether or not any private forest or portion

thereof has vested in the State Government and reads thus:-

"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 acquired 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 sixty days from the date of

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the decision of the Collector, or the order of the State

Government under Section 18, be final."

7.5. Section 2 of the Central Act pertains to restrictions on the

de-reservation of forests or use of forest land for non-forest purpose

and reads thus:-

"2. Restriction on the de-reservation of forests or use

of forest land for non-forest purpose. - Notwithstanding

anything contained in any other law for the time being in

force in a State, no State Government or other authority

shall make, except with the prior approval of the Central

Government, any order directing,—

(i) that any reserved forest (within the meaning of the

expression “reserved forest” in any law for the time

being in force in that State) or any portion thereof,

shall cease to be reserved;

(ii) that any forest-land or any portion thereof may be

used for any non-forest purpose;

(iii) that any forest-land or any portion thereof may be

assigned by way of lease or otherwise to any private

person or to any authority, corporation, agency or any

other organisation not owned, managed or controlled

by Government;

(iv) that any forest-land or any portion thereof may be

cleared of trees which have grown naturally in that

land or portion, for the purpose of using it for

reafforestation."

[Explanation.- For the purposes of this section 'nonforest

purpose" means the breaking up or clearing of

any forest-land or portion thereof for -

(a) the cultivation of tea, coffee, spices, rubber, palms,

oil bearing plants, horticultural crops or medicinal

plants;

(b) any purpose other than reafforestation;

but does not include any work relating or ancillary to

conservation, development and management of forests

and wild life, namely, the establishment of checkposts,

fire lines, wireless communications and

construction of fencing, bridges and culverts, dams,

waterholes, trench marks, boundary marks, pipelines

or other like purposes.]

8. Section 2(c-i) of the State Act defines 'forest' and the

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definition is self-explanatory. Section 2(f) of the State Act defines

'private forest' which relates to the property not belonging to the

Government and includes any land/forest which is so declared under

Section 34A or in respect of which notification under Section 35(1) is

in force or in respect of which notice under Section 35(3) has been

issued or in respect of which notification under Section 38 has been

issued. Thus, on the appointed day i.e. 30.08.1975, the date of

coming into force of the State Act, if any proceedings under the

provisions of Sections 34A, 35(1), 35(3) or 38 of the Act of 1927 are

pending or in force then such land or forest is defined as 'private

forest'. The effect of pendency of any such proceeding under the Act

of 1927 on the appointed day is given in Section 3 of the State Act

which provides for vesting of private forests in the State Government

on the appointed day. It is pertinent to note that Section 3(1) states

that all private forests in the State shall stand acquired and vest in the

State Government which implies that such lands / forests have to be

covered by the definition of 'private forest' in Section 2(f) of the State

Act. However, in the event if any owner / person is aggrieved and a

question arises as to whether or not a forest is a private forest or any

private forest or portion thereof has vested in the State Government,

then under Section 6 of the State Act such owner / person can file an

appeal to the Collector and dispute the status of the land as to whether

or nor the said land is forest / private forest or whether or not any

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private forest or portion thereof has vested in the State Government.

8.1. In the present case we are concerned with the Mutation

entry No. 720 which came to be effected by the Respondent No. 4

after receipt of letter dated 11.11.2005 from the Respondent No. 3.

On effecting the Mutation entry, the said lands came to be declared as

forest land. Hence, under the provisions of Section 6, the Petitioners

raised a dispute that the said lands are 'not forest land' or 'private

forest' and have not stood vested in the State Government on the

appointed date that is the date of coming into effect of the State Act.

It is pertinent to note that the letter dated 11.11.2005 addressed by

the Respondent No. 3 does not refer to pendency of any proceedings /

notice in respect of the said lands under the provisions of the Act of

1927 on the appointed date so as to bring the said lands under the

ambit of the definition of 'private forest' under Section 2(f) of the State

Act. The letter dated 11.11.2005 on a closer scrutiny merely states that

the said lands along with several other lands have stood vested in the

State Government under the provisions of the State Act and the said

Rules and all non-authorized activities on the said lands would be

permissible only after obtaining prior permission of the Central

Government. Save and except this reason, there is no other reason to

determine the vesting of the said lands in the State Government under

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the provisions of the State Act and the said Rules.

8.2. The Petitioners have placed on record sufficient material to

prove that the said lands admittedly are agricultural lands and not

'forest land'. Admittedly, there is no documentary proof available with

the Respondents to establish that the said lands are "private forest" or

"reserved forest". In fact, the Respondents never treated the said lands

as 'forest land'. The Petitioners submit that admittedly, no notification

and / or notices, either under Section 35 or 38 of the Act of 1927 or

under Section 21 of the State Act were ever published and / or issued

in respect of the said lands; that no entry is made in the "Golden

Register" maintained by the Respondent No. 1 recording that the said

lands stood acquired as "forest lands."

8.3. Section 2 of the Central Act refers to restrictions on the dereservation

of forests or use of forest land for non-forest purpose.

Perusal of this Section shows that the said provision applies to forests

or use of forest land for non-forest purpose and clearly implies that the

land in question to which the said provision applies should be reserved

forests or forest land or any portion of forest land. The said Section

states that no State Government shall make except with the prior

approval of the Central Government any order directing any reserved

forest or any forest land or any portion thereof to be dealt with or de-

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reserved. It is implicit by the bare reading of the Section that the said

provision applies in the case of reserved forest / forest land or any

portion thereof. In the present case Respondent No.2 - Collector by

his draft speaking order dated 13.11.2011 has conclusively

determined that the said lands are not forest lands. This

determination is pursuant to the statutory inquiry as contemplated

under the provisions of Section 6 of the State Act. This determination

has been done on 13.01.2011. The State Government has not filed

any Appeal challenging the decision of the Collector within the

prescribed period of sixty days before the Tribunal and as such the

decision of the Collector in respect of the said lands has become final.

The said lands therefore cannot be deemed to be forest land /

reserved forest or any portion thereof as forest for the purpose of

obtaining prior approval of the Central Government for its dereservation

and use for non-forest purpose under the Central Act.

9. In the above backdrop it is stated that for the provisions of

Section 2 of the Central Act to come into force, a jurisdictional fact

that the land in question is a 'forest' needs to exist. If the land in

question is 'not a forest', then the provisions of Section 2 of the Central

Act cannot be invoked or made applicable. Section 2 of the Central

Act come into play only if the subject land is a forest and not

otherwise. In the present case, the decision of the Collector under the

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provisions of Section 6 of the State Act adjudicating that the said lands

are 'not private forest' having become final, the State Government

cannot invoke the provisions of Section 2 of the Central Act for seeking

de-reservation of the said lands.

10. We have perused the detailed speaking order dated

13.01.2011 passed by the Respondent No.2 - Collector which is

annexed as Exhibit R-2 to the Affidavit-in-Reply dated 16.04.2021 of

the Respondent No. 2 (pages 353 to 383 of the Writ Petition). We

may highlight and reproduce some of the relevant portions of the

order, which read thus:-

"...Considering the provisions u/s, 4 of the Act of 1975, it will

be seen that no steps have been taken by forest authorities

for acquisitions of these suit lands..."(@Page 370)

"...The Forest authorities have submitted a copy of 'Golden

Register' maintained by the Department on which generally

considerable reliance has been placed. It is about the notices

under Section 35(3) of the Indian Forest Act 1927 issued

from time to time. Nowhere it shows the suit lands in the said

register and respondent-forest have also not agitated on this

point about the inclusion of the suit lands in the said 'Golden

Register' and also it does not contain any Gat number of

village Bhushi..." (@ Page 371)

"...no notices u/s 35 of the Act of 1927 and under section

21(1) under the Act of 1975 were issued in the present case

by Forest department till today..." (@Page 372)

"...On perusal of 7/12 extracts from 2002.2003 to 2004.05 of

the suit lands it it seen that most of the lands are 'pad' and

Kharip lands, hold by different holders and does not support

the claim of Forest Department..." (@ Page 373)

"... Further perusal of the papers, it will be seen that

Development Plan was sanctioned by the Urban Development

Department in the area wherein the said lands are shown as

agricultural lands and not forest lands in possession of the

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Forest Department. When draft development plan was

published, objections were called and after the period was

over, the draft plan was made final during the period from

the year 1978 to 2006 papers available before this court

shows that it was not challenged by the Forest Department at

any point of time..." (@ Page 375)

"...The Forest authorities themselves have not taken any basic

steps to establish their authority on the lands claimed to have

been under the Private Forests Acquisition Act Forest

authorities are claiming the properties on the strength of

mere 'words' and are accepting the factual situation contrary

to their claims discussed in earlier paragraphs..." (@ Page

376)

"... From a perusal of the definitions of the above sections it is

clear that the question of approval of the Central Government

arises only when the State Government makes a request for

such approval in respect of cases falling under the

enumerated categories of section 2. In the present case

nature of suit lands is being declared as non-forest on merits

and the available documents show that these are not a

private forest lands and therefore as contemplated u/s 2 of

the Act of 1980, this court is required to seek permission

from the Central Government Authority through State

Government..." (@ Page 377/378) (Emphasis supplied).

"...From the foregoing discussion, it is clear that the suit lands

prior to the appointed day and subsequent to the same have

not been vested with the Forest Department and the

mutation entry No.720 of village Bhushi Tal. Mawal taken in

respect of the suit lands needs to be quahsed..." (@ Page

380) (Emphasis supplied).

".. Considering the above legal and factual position, and the

papers available before this Court and the points discussed in

the judgment as above, I pass the following Order.

ORDER

The suit lands are declared as 'not private forest' under

section 6 of the Maharashtra Private Forest (Acquisition) Act,

1975. The application of the applicant in this behalf is

allowed and the M.E. No.720 of Village Bhushi Tal. Mawal is

quashed in respect of the suit lands. The decision will be

final subject to approval from Central Government u/s 2 as

the Forest (Conservation) Act, 1980 and thereafter it will

come into force. Thereafter inform both the parties

accordingly." (@ Page 380/381)."

10.1. The scheme of Section 6 of the State Act requires the

Collector to decide any question 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. In the present case, a detailed

speaking order of the Collector has conclusively determined and

declared the said lands as 'not private forest' under the provisions of

Section 6 of the State Act. The decision is on the basis of the findings

alluded to and reproduced hereinabove with reference to the

provisions of the Act of 1927, the State Act and the Central Act. The

categorical findings given by the Collector in arriving at the

conclusion that the said lands are 'not private forest' with reference to

the provisions of the Act of 1927 and the State Act do not leave any

doubt in our mind that the said lands are not forest.

11. From the perusal of the above order, we find that there is a

categorical finding arrived at by the Respondent No.2 - Collector

recording that the said lands are 'not private forest' and hence are also

not a 'forest' under the provisions of the State Act. The reasoned order

however records that the declaration arrived at by the Respondent

No.2 - Collector shall be subject to the permission from the Central

Government under Section 2 of the Central Act.

12. In the present case, admittedly there is no declaration /

notice / notification in respect of the said lands being classified and

declared as 'private forest'. Further under the provisions of Section 2

read with Section 3 of the State Act, the said lands have to be a 'forest' before it could be classified as a 'private forest' and thereafter declared to be a 'reserved forest'. According to the Petitioners the provisions of Section 3(2) of the State Act expressly excludes land under cultivation i.e. 'agricultural land' even if it is comprised in a 'private forest'. The said lands stand outside the purview of the provisions of Section 2 of the Central Act as they are not a forest and if that be so there can be no question of de-reservation or denotification or seeking approval for the use of forest land for non-forest purpose.

13. The entire controversy in the present case has arisen due to

the unilateral Mutation entry No.720 recorded in the Mutation

Register pertaining to the said lands which classified the said lands as

'forest lands'; this mutation entry was solely based on the

communication dated 11.11.2005 addressed by the Respondent No.3 -

Deputy Conservation of Forest to the Respondent No.2 - Collector

without any substantive basis / evidence as observed by us.

13.1. We have noted that the said Mutation entry was effected

with reference to the State Act. The Petitioners therefore filed the

statutory appeal seeking adjudication under the provisions of Section 6 of the State Act. However, once the Respondent No.2 - Collector has declared the said lands as 'not private forest' under Section 6 of the State Act, the applicability of the Central Act to the said lands does not arise. As seen, the said lands have been certified as 'agricultural lands' in the various revenue records and as such under Section 3(2) of the State Act, on this count also they cannot be deemed to be 'forest land' much less private forest land. Save and except the unilateral Mutation entry, admittedly there is no other evidence or material

placed on record by the Respondents to classify, certify or notify the

said lands as 'forest land'. The reasoned decision/order passed by the

Respondent No.2 - Collector declaring the said lands as 'not private

forest' under the State Act therefore decides the status of the said

lands.

14. Under Section 2 of the Central Act the approval of the

Central Government is necessary only if the land is a forest and if the

State Government passes an order directing that any reserved forest

shall cease to be reserved; or any forest land is used for non-forest

purpose; or any forest land is assigned to a private person or a nongovernment

organization; or any forest land may be cleared of trees or

re-afforestation. Thus it is clear that for the provisions of Section 2 of

the Central Act to apply, it it necessary in the first place that the said

lands have to be 'forest land'. However if the said lands are not forest

land then the provisions of Section 2 of the Act of 1980 are

inapplicable and thus the permission sought by the Respondent No.2 -

Collector from the Central Government with respect to its decision of

declaration of the said lands as 'not private forest' is wholly illegal.

15. The Respondents' submission that the Collector has merely

determined the said lands as 'not private forest' but the said lands still

continue to be 'forest' is also unacceptable due to the following

reasons:

i. the State Act, defines forest in Section 2(c-i) and private

forest in section 2(f). Thus the same Act deals with both

definitions and if a dispute as to the status is raised, then

under Section 6 it confers jurisdiction on the Collector to

adjudicate the same alongwith a statutory appellate remedy

to the Tribunal, in the present case the order of the Collector

has become absolute;

ii. the Mutation entry No. 720 itself was made with reference

to the State Act. The matter therefore fell within the ambit

of the State Act. Hence, the Petitioners necessarily had to

file the Application under Section 6 of the State Act and the

issue fell squarely within the Collector's jurisdiction. This has

been admitted by the Respondent No.2 in its Affidavit (at

Para 4; page Nos.347 and 348). Before the Respondent

No.2 - Collector, the State did not question or dispute the

Collector's jurisdiction to decide all the issues raised by the

Petitioner, the foremost being that the said lands were not

forest land at all;

iii. the Petitioners' case before the Collector was that the said

lands were 'agricultural lands', - that they were never 'forest'

in the first place and thus, could never be a 'private forest';

the documentary evidence on record states and establishes

that the said lands are 'agricultural lands' and 'not forest' and

the said documents were produced before the Collector to

establish the same; these documents and their contents are

not disputed;

iv. admittedly, there were no proceedings pending under the

Act of 1927 qua the said lands on the appointed date, i.e.

30.08.1975, the date of coming into force of the State Act;

v. the Collector, on merits, accepted the Petitioner's case that

the said lands are not 'forest' and thus came to the

unequivocal conclusion that the said lands are 'not private

forest'. This was an inherent part of the enquiry and on the

basis of unimpeachable material on record, the Collector

accepted the fundamental/basic fact and position that the

said lands are 'not private forest' and hence necessarily are

not 'forest';

vi. The State's argument, if accepted, would lead to an absurd

and anomalous situation, and will defeat the scheme of the

State Act. A 'forest' belonging to a private person is a

'private forest', and thus, when a private party objects to his

land being declared a 'private forest', he is also objecting to it

being declared a 'forest'. It cannot be that even when a party

has succeeded under Section 6 of the State Act, his private

land will continue to be a 'forest'. In any event, in this case,

the Collector, acting within his jurisdiction, has on merits

held that the said lands are 'not private forest'. This finding

is final and binds the State.

16. Further the stand adopted by the State Government is in

clear conflict with the stand taken by the Central Government in the

present case due to the following reasons:

i. The Central Government has categorically stated that it has

not yet (for 11 long years) received any application from the

State Government under Section 2 of the Central Act (para 4

of its Affidavit on page 330 and para 2 of page 1 of its

Written Submissions). This is contrary to the State's case

that it has forwarded the application to the Central

Government. However subsequently, during the hearing in

Court, the State has admitted the position that it has not sent

any application to the Central Government at all;

ii. Rule 6 of the Forest (Conservation) Rules, 2003 prescribes

the form for making an application under Section 2 of the

Forest (Conservation) Rules. This Application has to be

made by the State as the User Agency. Rule 6 and Form 'A'

apply only when forest land is to be used for non-forest

purposes, when a project is to be set up on the forest land,

and particulars of the proposed project are to be set out. No

such thing exists / applies in the present case. The State is

fully aware of this fact and it is for that reason that no

application, indeed, has been forwarded by the State

Government in the last 11 years.

17. It is an admitted position that the State Government has

never submitted the draft order passed by the Respondent No. 2 -

Collector for seeking permission in the last 11 years; rule 6 and Form

'A' of Forest (Conservation) Act apply only in a case where an existing

forest is to be de-reserved or is been put to a non-forest use, which is

not applicable to the said lands. The Petitioners have been wrongly

denied the benefit of the said lands for the last decade on a completely false and erroneous premise that the Petitioners' case was pending approval / permission from the Central Government under the

provisions of Section 2 of the Central Act. The Central Government

represented by Advocate Mr. Mandar Limaye has in its Affidavit-in-

Reply dated 24.08.2020 (paragraph 6, page 331) confirmed that the

Central Government has no role to play in the matter and the same

stand is reiterated in their written submissions dated 28.07.2021.

18. In view of the above discussion and findings, it is held that

the provisions of Section 2 of the Central Act do not apply to the said

lands, hence the contention of the State Government that the approval / permission of the Central Government is required for confirming the declaration arrived at by the Collector is wholly erroneous.

19. For the above reasons, we hold that the order dated

13.01.2011 passed by Respondent No. 2 - Collector to the extent that

it states that the decision that the said lands are not 'private forest

land' will be subject to the approval from the Central Government

under Section 2 of the Central Act and only thereafter will come into

force, is bad in law and is quashed and set aside. The rest of the order

passed by the Respondent No. 2 - Collector is upheld and maintained.


20. In view of the above the Writ Petition stands allowed in

terms of prayer clauses (a) and (c). However, there shall be no order

as to costs.

[ MILIND N. JADHAV, J. ] [ S. J. KATHAWALLA, J.]

21. After pronouncing the Judgment, at this stage Mr. Kulkarni,

learned Advocate appearing on behalf of Respondent Nos.1 to 4 has

made an application for stay of the judgment. The Application is

rejected.

[ MILIND N. JADHAV, J. ] [ S. J. KATHAWALLA, J.]


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