Devkumar Gopaldas Aggarwal vs State of Maharashtra through its Principal Secretary, Revenue and Forest Department, Mantralaya

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2018 Supreme(Bom) 1271

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, P.D. NAIK, JJ.
Devkumar Gopaldas Aggarwal & Ors. - Petitioners
Versus
State of Maharashtra through its Principal Secretary, Revenue and Forest Department, Mantralaya & Ors. - Respondents
Writ Petition Nos.4814, 177, 216, 988, 1078, 1087, 1272, 2046, 2063, 2080, 2086, 2103, 2347, 2392, 3296, 3773, 3875, 4277, 4580, 4606, 4711, 4803, 4810, 5559, 5669, 6365, 6444, 6623, 10951, 11488, 11495, 11382, 11753, 12617, 12624, 13076, 13190, 13191, 13192, 13194, 13195, 14146, 14147, 14221, 14371, 14385, 9509, 9532, 10112, 9277, 9423, 6934, 6973, 7213, 7545, 9478, 9503, 7782, 8498, 8786 of 2016 With Writ Petition Nos.31, 146, 159, 593, 5485, 5512, 5583, 5696, 6174, 6420, 6737, 6738, 6739, 6740, 6741, 6742, 6743, 1513, 1591, 2216, 2316, 1895, 12669, 13820, 11724, 11719, 11981, 2782, 9614, 9763, 12260, 12339, 12352, 3857, 8857, 8881, 6933, 7288, 7369 of 2017 With Writ Petition Nos. 1767, 9604, 12084, 12126, 12175, 12308, 12502, 11276, 11452, 11679, 11678, 12615, 5286, 5288, 6417, 10161, 10165, 10205, 10266, 10267, 10750, 9368, 8011, 6870, 8903, 7446 of 2015 With Writ Petition No.4869 of 1997 With Writ Petition No.6042 of 2010 With Writ Petition No.621 of 2012 With Writ Petition Nos.5165, 8943 of 2014 With Writ Petition Nos.234, 281, 389, 1337 of 2018 With Writ Petition No.4542 of 2015 With Civil Application No.1633 of 2016 With Writ Petition No.6763 of 2016 With Civil Application No.253 of 2018 With Writ Petition No.6829 of 2016 With Civil Application No.252 of 2018 With Writ Petition No.7752 of 2016 With Civil Application No.2571 of 2017 With Writ Petition No.7766 of 2016 With Civil Application (Stamp) No.23398 of 2016 With Writ Petition No.9369 of 2015 With Civil Application No.173 of 2017 With Writ Petition No.1077 of 2016 With Civil Application No.2572 of 2017 With Writ Petition No.8408 of 2015 with Civil Application No.2338 of 2016 With Writ Petition No.9504 of 2016 With Civil Application (Stamp) No.17855 of 2016 with Writ Petition No.9899 of 2016 with Civil Application No.1168 of 2017 With Writ Petition (Stamp) No.10400 of 2017 With Writ Petition No.10721 of 2017 With Writ Petition (Stamp) No.10797 of 2018 With Writ Petition No.12012 of 2016 With Civil Application No.1769 of 2017 With Writ Petition No.12259 of 2017 With Civil Application (St) No.21892 of 2018 With Writ Petition No.12542 of 2015 With Civil Application (Stamp) No.21597 of 2017 With Writ Petition No.12585 of 2015 With Civil Application No.504 of 2016 With Writ Petition (Stamp) Nos.15387, 22382, 24577, 27305, 10134, 10137, 10138, 10141, 9261, 9262, 9263, 9265, 3497, 5074, 9322, 9323, 9324, 9326, 9454, 9455 of 2017 With Writ Petition (Stamp) Nos.4658, 7019 of 2018 With Writ Petition (Stamp) No.30103 of 2016 With Public Interest Litigation No.201 of 2015 With (Original Side) Writ Petition No.853 of 2017
Decided On : 27-09-2018

Advocates Appeared:
For the Petitioners:Dr. Milind Sathe Sr. Counsel a/w Sharmila Deshmukh and Ms. Swati N. Jain I/b A.S. Dayal & Associates, Shri Milind Sathe Sr. Counsel a/w Bhushan Deshmukh a/w Monisha Mane a/w Pooja Tated I/b ALMT legal, Shri Ajinkya J. Jaibhave, Ms. Lata Patne a/w Vinod Joshi, Mr. Lokesh Zade, Mr. Kamlesh Ghumre a/w Sonali Jadhav a/w Aditya Parulekar, Mrs. Alisha R. Lambay & Mr. Vikas K. Singh a/w Mr. Aupam R. Dwivedi I/b Lambay & Co, Mr. Vedchetan Patil a/w Radha Agrawal I/b Moses Rodrigues, Mr. Piyush Pande Ms. Zahra Baldiwala I/b Kartikeya & Associates, Mr. A.S. Khandeparkar a/w Rakesh Pathak I/b Khandeparkar & Associates, Mr. Milind N. Jadhav a/w Pranav S. Nair I/b SRM Law Associates, Mr. Jitendra Pathade, Mr. Ooril Panchal I/b. M/s. Mahimtura and Co., Mr. Ranbir Singh with Mr. Hiren G. Shah I/b Prakash & Co., Mr. P.K. Dhakephalkar Sr. Counsel a/w J.G. Aradwad (Reddy), Mr. G.S. Godbole a/w Drupad Patil and Shivani Samel and Akshya Petkar, Shruti Tulpule & Kaustubh Thipsay, Mr. Chirag Balsara and Mr. Singh and Akshay Doctor I/b Desai & Diwanji, Mr. Iqbal Chhagla Sr. Advocate with Naval Agarwal I/b S.R. Waghmare, Mr. Sudanrao Jondhale with Mr. Anand S. Jondhale, Yashoda Jondhale, Babu Singh, Mr. Ajay S. Jondhale, Vijay S. Jondhale and Raj S. Jondhale I/b Jondhale & Co., Mr. Sumit Kothari, Mr. Kaustav Talukdar counsel a/w Vikash Kumar a/w Ruturaj Bankar I/b Lex Legal & partners, Mr. Saket Mone a/w Mr. Sumit Chakrabarti and Ms. Neha Joshi I/b Vidhi Partners, Ms. S.V. Sonawane with Mr. Satish Mule and T.H. Jadhav, Ms. Pooja Joshi, Mr. Ajit R. Pitale, Mr. Rabir Singh a/w Miss Naseem Patrawala a/w Bhuvan Thakker I/b Malvi Ranchoddas & Co., Mr. Girish S. Godbole a/w Mr. Ameya Vinay Borwankar, Ms. Sonal Dabholkar I/b Suresh Sabrad, Mr. Vivek Arote with Mr. Y. Apte I/b Harshad Bhadbhade, Mr. Vishal Phal a/w Ms. Jyotsana S. Kondhalkar I/b VBA law, Mr. V.P. Sawant with Nitin Dhumal, Mr. Vineet B. Naik Sr. Adv. With Sukand Kulkarni, Mr. V.A. Gangal with Anup N. Deshmukh, Karen D'souza I/b SRM Law Associates, Shri N.V. Walawalkar Sr. Counsel a/w Sonal Dabholkar I/b Suresh Sabrad, Mr. Jehangir D. Mistri-Senior Advocate with Mr. Navin Bhatia i/b. M/s. Mahimtura and Co.
For the Respondents:Mr. Navroj Seervai Sr. Advocate/ Special counsel with Mr. A.B. Vagyani Govt. Pleader with Ms. Geeta Shashtri Addl. G.P. and Mr. Atul Vanarase AGP with Mr. P.P. More, AGP and Mr. B.V. Samant AGP, Mr. Dhanesh R. Shah a/w Bharat Mehta, Mr. Nikhil Sakhardande a/w Mr. Parag A. Vyas, Mr. Chandrakant Chavan, Y.R. Mishra a/w N.R. Prajapati a/w Upendra Lokegaonkar, Mr. Advait M. Sethna a/w M.S. Bharadwaj and Mr. Pranil Sonawane, Mr. D.N. Mishra with Richa Mishra, Mr. D.P. Singh, Ms. J.N. Pandhi with Mr. Mohamedali M. Chunawala, S.I. Shah a/w Dushyant Kumar, Mr. Milind N. Jadhav a/w Pranav S. Nair I/b SRM Law Associates, Anil D. Yadav a/w Anand O. Singh, Mr. Parag vyas a/w Mr. Vora and Mr. D.R. Shah, Mr. Ajit R. Pitale, Mr. Dushyant Kumar, Mr. D.A. Dubey with Mohamedali M. Chunawala, Mr. B.P. Jadeja I/b Pranil Sonawane & A.M. Sethna and Mr. Alefiya Mandriwala, Smt. S.I. Shah, Mr. Mayuresh S. Lagu, Mr. S.R. Nargolkar, Adv. Karen D'souza I/b SRM Law Associates.

Headnote:
Private Forest Acquisition Act, 1975 - Indian Forest Act, 1927 - section 2(f)(iii) - Constitution of India,1950 - Article 226 and 12 - Challenge the arbitrary and illegal action - Assertion of petitioners - Rule is granted in each of these petitions - Respondents waive service - By consent of parties Rule is made returnable forthwith- Respondent no1 is State of Maharashtra through its Principal Secretary Revenue and Forest Department in whose favour impugned mutation entry is made in respect of said property - Respondent no- 2 is Revenue Officer authority constituted and performing functions under Land Revenue Code 1966 (hereinafter referred to as “ MLRC”) on whose instructions impugned mutation entry has been effected in respect of said property - Respondent no3 is Chief Conservator of Forests an authority constituted and inter alia discharging duties under Forest (Conservation) Act 1980 - Respondent no4 is Collector Pune Division - All respondents are State within meaning of Article 12 of Constitution of India and therefore amenable to writ jurisdiction of this court - Petitioners by this petition challenge arbitrary and illegal action on part of respondents in treating petitioners lands as “forest/private Forest” although these lands have never been forest in fact or in law – Held, reliance on a Full Bench judgment of this court in case of and several paragraphs thereof would indicate that this court upheld constitutional validity of law and did not in any manner go beyond such of issues as were raised concerning validity and legality of its provisions- Court are only called upon to decide as to whether assertion of petitioners that judgment of Honble Supreme Court in case ofwould cover controversy- Court have held above that petitioners before us save and except two or three cases cannot derive any benefit from judgment in case of - Beyond that Court have not rendered any positive declaration- Not all petitioners can rely on judgment in case - Applications stand disposed

JUDGMENT :

S.C. Dharmadhikari, J.

1. In all these matters, the primary question falling for our consideration and determination is, whether the judgment and order of the Hon'ble Supreme Court in the case of Godrej and Boyce Manufacturing Company Limited and Anr. vs. the State of Maharashtra, (2014) 3 SCC 430 would apply or otherwise. The next question is, whether each of these petitioners can rely upon this judgment to resist the consequences flowing from the Maharashtra Private Forest (Acquisition) Act, 1975 (hereinafter referred to as “the Act of 1975”), when their predecessors in title have never raised any dispute about the applicability of this law or the steps and action taken in pursuance thereof.

2. The facts and circumstances in most of these petitions are identical. Since extensive arguments were canvassed, we are disposing of these petitions by a common judgment.

3. Rule is granted in each of these petitions. The respondents waive service. By consent of parties, Rule is made returnable forthwith.

4. In Writ Petition No. 4814 of 2016 the facts are that the petitioners are the owners of land bearing Survey Nos. 81, 82/1 to 82/6, 87/1, 82/7 to 82/16, 84/3, 85, 87/2 to 87/4, 88, 90/1, 90/2, 91/1, totally admeasuring 108.7860 acres, situated at Village-Dahiwali, Taluka-Maval, District-Pune (hereinafter referred to as “the said property”), which is the subject matter of the present petition. The chart showing survey numbers with corresponding Gat numbers, the area and the date of purchase of the said property is annexed as Exhibit 'A' to the petition.

5. Respondent no. 1 is the State of Maharashtra through its Principal Secretary, Revenue and Forest Department, in whose favour the impugned mutation entry is made in respect of the said property. Respondent no. 2 is the Revenue Officer, the authority constituted and performing functions under the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as “the MLRC”), on whose instructions the impugned mutation entry has been effected in respect of the said property. Respondent no. 3 is the Chief Conservator of Forests, an authority constituted and, inter alia, discharging duties under the Forest (Conservation) Act, 1980. Respondent no. 4 is the Collector, Pune Division. All the respondents are 'State' within the meaning of Article 12 of the Constitution of India and, therefore, amenable to the writ jurisdiction of this court.

6. The petitioners, by this petition, challenge the arbitrary and illegal action on the part of the respondents in treating the petitioner's lands as “forest/private Forest” although these lands have never been forest in fact or in law. The petitioners are also challenging the action of the authorities in mutating the name under the provisions of the Maharashtra Private Forest Act in “other rights” column in Revenue records of the Petitioners' lands under Mutation Entry No. 521. The actions on the part of the respondent authorities treating the said property as “forest” are completely arbitrary, unreasonable and non-est. The entire claim of the respondents for claiming the said property as “forest” is based on a purported show cause notice, stated to be issued on 7th June, 1956 under section 35(3) of the Indian Forest Act, 1927, which was not even served on the predecessor-in-title of the petitioners who were cultivating the said property. The said property is “Jirayat” land and was cultivated accordingly.

7. The petitioners state that the said notice not having been acted upon by the respondents, has lapsed and ceased to have any effect and, therefore, the actions of respondents on that basis, after about 46 years of the said notice, are clearly arbitrary and unreasonable. In any case, the said property was always under cultivation by the predecessor-in-title of the petitioners and was never actually and physically “forest” at any point of time and, therefore, the notice issued under section 35(3) of the Act of 1927 was rightly abandoned and did not culm

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2018 Supreme(Bom) 1271

Cases Referred (5)