The mandatory nature of service of notice under sub-Section 3 of Section 35 of the Indian Forest Act, 1927 and its significance in determining the classification of a land as a 'Private Forest' under the Maharashtra Private Forest (Acquisition) Act, 1975.

JUDGMENT :

Gauri Godse, J.

1. Rule. By consent, Rule is made returnable forthwith.

2. In this Petition, relief is sought of quashing and setting aside mutation entry No. 1736 dated 23rd July 2001 in respect of Petitioners’ property bearing survey No. 28/1/A, 68, 69 and 70 (“the said land”) situated at village Lonivali, District Raigad. By the said mutation entry, the name of the Government of Maharashtra was entered in other rights column by treating the said land as a private forest. It is further prayed in the Petition that by exercising powers under Article 226 of the Constitution of India, the Respondent Nos. 2 and 3 be directed to take immediate steps to implement the order dated 10th April 2003 passed by Respondent No. 4 - Collector, District Raigad, in Private Forest Case No. 1 of 2003. By the said order dated 10th April 2003, the Collector has passed a reasoned order under Section 22A of the Maharashtra Private Forest (Acquisition) Act, 1975 (“the MPFA”). By the said order, the Collector directed Forest Department to send the necessary proposal to the Central Government in view of the spirit of the legislation while enacting Section 22A of the MPFA.

3. The Petitioners claim to be the owners of the said land which earlier belonged to Bandya Dadya Pawar, Bhanvnya, Tukaram Genu Balekar and Vithu Kushaba Dhanavade. Thereafter, said land was transferred in the name of Bandya Pawar and others from whom the Petitioners purchased some portion being 991.90 Gunthas from survey No. 69 and 822.40 Gunthas from survey No. 70 by way of registered sale deed dated 13th January 2011 and Deed of Rectification dated 25th November 2013. The Petitioners also claimed that there was an agreement for sale dated 31st January 2011 executed by the original owners in respect of survey No. 28/1/A and survey No. 68 for an area of 1166.25 Gunthas and 7125.40 Gunthas respectively. The Petitioners stated that their names were entered in the revenue records in respect of survey Nos. 69 and 70 and that they are also in physical possession of the said land. The Petitioners further stated that in other rights column, name of the Forest Department of the Government of Maharashtra is entered, which shows that inquiry under Section 22A of the MPFA is pending.

4. On making enquiries, the Petitioners were informed that the Government of Maharashtra through the Deputy Conservator of Forest, Alibag had filed Private Forest Case No. 1 of 2003 contending that notices under sub-Section 3 of Section 35 of the Indian Forest Act, 1927 (“the Forest Act, 1927) were issued. However, in the said proceedings, the Forest Department failed to prove that notices were in fact anytime served upon the erstwhile owners of the said land. After considering the documentary evidence on record, the Collector had passed a reasoned order holding that no evidence was produced by the Forest Department to show that notices under sub-Section 3 of Section 35 of the Forest Act, 1927 were served upon the erstwhile owners. Thus, by the said order, the Collector issued necessary directions for sending the necessary proposal to the Central Government in view of spirit of the legislature while enacting Section 22A of the MPFA.

5. In spite of the said order dated 10th April 2003, no steps were taken by the office of the Conservator of Forest and even today, the revenue records in respect of the said land record that land belongs to the Forest Department of the Government of Maharashtra, in view of mutation entry No. 1736. The Petitioners also relied upon information received under the Right to Information Act, 2005. The said information reveals that the office of the Deputy Conservator of Forest does not have any document to show whether notices under sub-Section 3 of Section 35 of the Forest Act, 1927 were served upon erstwhile owners. The Petitioners thereafter made an application dated 24th July 2017 to the Forest Department requesting for implementation of the aforesaid order dated 10th April 2003 pas