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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, S.M. Modak, JJ.
Rajmachi Rural Aid And Development Programme – Appellant
Versus
State of Maharashtra & Ors. – Respondents
Writ Petition No. 5586 of 2021
Decided On : 29-04-2022
Defects in Notice and Notification - Land Acquisition - Maharashtra Private Forest (Acquisition) Act, 1975 - Section 35(1) and Section 35(3) - The court deliberated on the defects in the notice and notification issued under Section 35(1) and Section 35(3) of the Maharashtra Private Forest (Acquisition) Act, 1975. The court also discussed the applicability of the Forest Conservation Act 1980 and the legal principles established in the case of Godrej & Boyce Manufacturing Co. Ltd. and Anr. Vs. State of Maharashtra and Ors., (2014) 3 SCC 430. The judgment relegates the issue to the Collector to decide whether the land in question is a private forest and whether it has vested in the Government on the appointed day.
Fact of the Case:
The original owner of the land in question entered into an agreement for sale and executed a registered sale deed with the Petitioner. The Petitioner claimed ownership based on the sale deed and raised grievances about defects in the notice and notification issued under Section 35 of the Maharashtra Private Forest (Acquisition) Act, 1975. The Respondents contended that the land had vested in the Government as per the provisions of Section 3 of the 1975 Act.
Finding of the Court:
The court found disputed questions of fact and relegates the issue to the Collector to decide whether the land in question is a private forest and whether it has vested in the Government on the appointed day. The court also directed both parties to appear before the Collector and file pleadings and documents. The court disposed of the writ petition, allowing the Collector to decide the issue within six months.
Issues: The issues before the court included the defects in the notice and notification under Section 35(1) and Section 35(3) of the Maharashtra Private Forest (Acquisition) Act, 1975, and the applicability of the Forest Conservation Act 1980. The court also considered the ownership claim of the Petitioner based on the sale deed and the possession and activities carried out on the land.
Ratio Decidendi: The court decided to relegate the issue to the Collector under Section 6 of the Maharashtra Private Forest Act to determine whether the land in question is a private forest and whether it has vested in the Government on the appointed day. The court emphasized the importance of deciding the issue to avoid complications in the future and to address concerns about forest cover and global warming.
Final Decision: The writ petition was partly allowed, and the court directed the Collector to decide the issues within six months. Both parties were directed to appear before the Collector and file pleadings and documents. The court disposed of the writ petition, with no order as to costs.
JUDGMENT
S. M. Modak, J. - This Court had come across various petitions involving a grievance that land in question is not a private forest under the provisions of Maharashtra Private Forest (Acquisition) Act, 1975 hereinafter referred to as 1975 Act. It is predominantly for the reason that there are defects in the notice and notification issued under Section 35 of 1975 Act. In this Petition also we are supposed to deal with the grievance about :-
a) Defect in the notice issued under Section 35 (3) of 1975 Act.
b) Defect in the notification issued under Section 35(1) of 1975 Act.
c) Whether these defects are sufficient so as not to vest land in the State Government and so also there is an issue of general apathy of Department of Forest in not implementing the provisions of 1975 Act and also an issue of general apathy of Revenue Department in granting the permission mechanically.
2. On this background, we have heard Mr. Sangramsingh R. Bhosale, Advocate for the Petitioner and Mr. Vasant S. Gokhale, AGP for the Respondent-State.
3. The relevant facts for deciding the controversy are narrated below.
The original owner of the land in question is one Bhiwa Shiwa Waghmare.
He has entered into an agreement for sale on 15/05/1984 and executed a registered sale deed with the Petitioner on 06/01/1986 The Petitioner is claiming ownership on the basis of said sale deed. His main thrust of argument is that he has purchased the land in question after following the procedure and after taking due care. According to him, the contention of Respondents about vesting of the land is without basis and there are so many lacunaes and defects in the notice and notification. The details are as follows:
| Description of land | Gat No. 16 (Old survery No. 3, Hissa No. 2 | Admeasuring 8 h. 3 R | Situated at Village Udhewadi (Rajmachi), Tal. Mawal, District Pune |
| Land purchased | 4 H. 20.02 R | - | -- |
| Date of show cause notice under Section 35 (3) of 1975 Act. | 16th August 1956 | Issued to Shiwa Bhiwa Waghmare | - |
| Date of Notification under Section 35(1) of 1975 Act | Issued on 23/01/1959 | Published in the gazettee on 05/02/1959 | Out of 48 lands described in the schedule, the land at Sr. No. 1, 36 and 46 shown in the name of Shiwa Bhiwa Dhakol |
| Bhiwa Shiwa Waghmare purchased the land old survey no. 3, Hissa No. 2 | From Gangadhar Narayan Deshpande | Registered Sale deed dated 02/12/1948 | - |
| The Petitioner entered into an agreement for sale with Bhiwa Shiwa Waghmare | On 15/05/1984 | For Rs. 8,600/- | Page No 86 |
| Permission to sale above land to the Petitioner | Under section 36A (1) of MLR Code. | Page 91 | - |
| Registered sale deed in between the Bhiwa Shiwa Waghmare and the Petitioner | 06/01/1986 | Survey No. 3 Hissa No. 2, 4 H 20 R | Page 93 |
4. The Respondents contend that when 1975 Act came into force on 30/08/1975, the land in question was a forest land and as such it has vested in the Government as per the provision of Section 3 of 1975 Act. So according to the Respondents, the sale deed relied upon by the Petitioner is not valid sale deed in the eyes of law. Whereas according to the Petitioner proper procedure as contemplated under Section 35 of Indian Forest Act was not followed and as such the law as interpreted in case of Godrej & Boyce Manufacturing Co. Ltd. and Anr. Vs. State of Maharashtra and Ors., (2014) 3 SCC 430 will be applicable. The sum and substance of the grievances are as follows:-
a) Notice dated 16/08/1956 was issued to 'Shiwa Bhiwa Waghmare' and not to owner in his right name as 'Bhiwa Shiwa Waghmare'.
b) Even there are two defects in the final notification and the same mistake in the name of the owner has continued alongwith one more mistake of describing the surname as Dhakol (and not Waghmare).
c) In view of the defects in the notice, there is no question of serving the notice and for want of servic
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