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Feroz Shabbar Hussain v. State Of Maharashtra And Others
Structured Summary of the Opinion by V.R. Kingaonkar, J.
Factual and Procedural Background
This petition challenges an order passed by the Minister for Revenue and Forests acting as Revisional Authority under section 18 of the Maharashtra Private Forests (Acquisition) Act, 1975 (“M.P.F Act”). The petitioner seeks a prohibitory injunction to prevent respondents from dispossessing him of agricultural land described as Gat No. 46/1 (2 Hectares 96 Ares) at Village Barwai, Tal. Panvel, Dist. Raigad.
Key factual and procedural points drawn from the opinion:
- The land originally belonged to Narayan Govind Shete and bore survey No. 27, Hissa No. 4.
- A notice under section 35(3) of the Indian Forests Act was issued on 24 January 1961 (and a copy was served on the original owner on 17 March 1961).
- The petitioner claims to be the legal representative of the deceased Smt. Rubbabai Shabbar Hussein, who acquired the land from Narayan Govind Shete.
- An application for licence to extract stone/rubble/murum from a natural quarry on the land was granted and later cancelled; a writ petition (Writ Petition No. 309 of 1982) challenging cancellation was dismissed on 4 September 1990.
- On 11 March 1991 the petitioner and predecessor filed an application before the Sub‑Divisional Officer/Deputy Collector, Panvel seeking inquiry under section 22‑A and release of the land from declaration as forest land. The Sub‑Divisional Officer/Deputy Collector granted that application and held the land could not be treated as private forest because Notification under section 35(1) of the Forests Act had not been issued.
- Respondent No. 2 (or respondent No. 3 in related paragraphs) preferred a revision petition; the Minister for Forests allowed the revision by an order dated 4th October (the opinion contains references to both 4th October 2000 and 4th October 2005 at different places in the text).
- The present petition challenges that revisional order and seeks to set it aside; the trial court (this Court) heard counsel and considered documentary record before dismissing the petition.
Legal Issues Presented
- Whether issuance of a notice under section 35(3) of the Indian Forests Act prior to the appointed date (30 August 1975) suffices to render the land a "private forest" under section 2(f) of the Maharashtra Private Forests (Acquisition) Act, 1975, even if a Notification under section 35(1) of the Forests Act was not issued.
- Whether the Revisional Authority (the Minister) committed any illegality in entertaining a revision under section 18 of the M.P.F. Act where no appeal had been preferred.
- Whether the application under section 22‑A of the M.P.F. Act filed on 11 March 1991 was barred by limitation (i.e., not filed within six months from the commencement of the Maharashtra Private Forests (Acquisition) (Amendment) Act, 1978), and if so, whether the Sub‑Divisional Officer/Deputy Collector erred in entertaining it.
- Whether subsequent change of user (licence for quarrying granted circa 1981 and use for quarrying thereafter) affects the classification of the land as private forest.
- Whether, as urged by the petitioner, at least 2 hectares should have been excluded from the declaration of private forest (i.e., applicability of sub‑clause (f)(iii) of section 2 regarding exclusion of small holdings).
Arguments of the Parties
Petitioner's Arguments
- The petitioner contended that the earlier writ petition (No. 309 of 1982) was dismissed on a technical ground and related only to quarrying permission revoked in 1981, and therefore did not decide the question of classification as private forest.
- The petitioner argued the land was not used as a forest and therefore could not be declared a private forest; the declaration should have been made within one year after the notice and was not, so the land cannot be treated as a private forest.
- It was urged that respondent No. 3 failed to prefer an appeal against the Sub‑Divisional Officer/Deputy Collector's order (dated 20 June 1994 as referenced) and hence the revisional petition should not have been entertained by the Minister.
- Learned Counsel Shri Limaye argued the definition of “private forest” under section 2(f)(iii) of the M.P.F. Act was not properly considered by the Minister; additionally, at least 2 hectares should have been excluded from the declaration under the Act.
- It was emphasized that the petitioner had no other source of income and depended on income from quarrying; cancellation of the licence had significant personal consequences.
Respondents' / Government's Position
- The learned Additional Government Pleader, Shri Nargolkar, supported the impugned revisional order passed by the Minister.
- Respondent No. 3 filed the revision application under section 18 of the M.P.F. Act on 14 June 1995 (the opinion records this date) and the application was filed within one year from the date of the order passed by the Sub‑Divisional Officer/Deputy Collector, Panvel.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ankush Keshav Bowledkar v. State of Maharashtra, 1998 (3) Mh.L.J 776 | Held that if a notice under section 35(3) of the Indian Forests Act was issued in respect of any land prior to the coming into force of the M.P.F. Act (appointed date 30 August 1975), such land becomes a "private forest" under section 2(f) of the M.P.F. Act. The decisive factor is issuance of the notice (not its service). | The Court relied on this authority to conclude that issuance of the 1961 notice rendered the land a private forest under section 2(f) of the M.P.F. Act, and that absence of notification under section 35(1) of the Forests Act could not justify treating the land as outside the definition of "private forest." |
| Chintamani Gajanan Velkar v. State of Maharashtra, AIR 2000 SC 1073 | Held that if a notice under section 35(3) of the Forests Act is issued before the appointed date (30 August 1975), the land must be regarded as "private forest". | The Court applied this Supreme Court authority to reinforce that the prior issuance of the 1961 notice establishes the land's status as private forest irrespective of lack of a section 35(1) notification. |
Court's Reasoning and Analysis
The Court proceeded through a sequence of fact‑finding and legal application as follows (based strictly on the content of the opinion):
- Fact of Issuance: The Court accepted that a notice under section 35(3) of the Indian Forests Act was issued on 24 January 1961, and that the original holder was served on 17 March 1961. This fact was central to the legal analysis.
- Scope of Revision under Section 18: The Court noted that the revision application was moved by respondent No. 3 under section 18 of the M.P.F. Act on 14 June 1995 and that such powers of revision are available to the Government. The Court found no illegality in the Minister entertaining the revision petition; revision is not barred merely because an appeal was not preferred.
- Correctness of Sub‑Divisional Officer's Approach: The Sub‑Divisional Officer/Deputy Collector had concluded that absence of a Notification under section 35(1) of the Forests Act meant the land could not be treated as private forest. The Court found this approach incorrect and relied on precedent to show that issuance of the section 35(3) notice before the appointed date suffices to render the land private forest.
- Precedent Application: The Court relied on Ankush Keshav Bowledkar (1998) and Chintamani Gajanan Velkar (AIR 2000 SC 1073) to hold that the crucial aspect is issuance of the notice under section 35(3), not service or absence of section 35(1) notification, and that such issuance prior to 30 August 1975 brings the land within section 2(f) of the M.P.F. Act.
- Effect of Subsequent Change of User: The Court acknowledged that part of the land was used for quarrying after a licence issued in 1981, but held that subsequent events or change of user are immaterial once it is found that the section 35(3) notice was issued prior to the appointed date; the nature of the land does not change by subsequent use.
- Limitation under Section 22‑A: Section 22‑A(1) requires an owner of private forest seeking restoration to apply within six months of commencement of the Maharashtra Private Forests (Acquisition) (Amendment) Act, 1978. The application in this case was filed on 11 March 1991, long after the six‑month period, and therefore was time‑barred. The Court observed the application (Exhibit "F") contained no prayer to exclude 2 hectares (sub‑clause (f)(iii) of section 2) and that the applicants' explanation for delay (pendency of another writ petition) was irrelevant to the section 22‑A inquiry.
- Conclusion from Application of Law to Facts: Given the prior issuance of the section 35(3) notice, the belated and time‑barred application under section 22‑A, absence of any specific prayer to exclude 2 hectares, and the correctness of the Minister's exercise of revisionary power, the Court concluded that the land vested in the Government as a private forest and the impugned revisional order was sustainable.
Holding and Implications
Holding: Petition dismissed. The Court held that the land in question is a private forest and that the impugned revisional order passed by the Minister is sustainable. The rule is discharged and there shall be no order as to costs (as stated in the opinion).
Implications:
- Direct effect on the parties: The petitioner’s challenge to the revisional order failed; the land is declared to vest in the Government as a private forest and the petitioner’s request to restrain dispossession was denied.
- On procedural points: The Court affirmed that a revision under section 18 of the M.P.F. Act is available to the Government even where no appeal has been preferred, and that an application under section 22‑A must be made within the six‑month statutory period created by the 1978 Amendment, otherwise it is time‑barred.
- Broader precedent: The opinion applies existing authority (cited in the body) rather than purporting to create a new legal principle; the decision follows and reinforces the rule that issuance of a section 35(3) notice prior to the appointed date establishes a private forest under section 2(f) of the M.P.F. Act.
Petition dismissed.
V.R Kingaonkar, J.:— By this petition, the petitioner impugns the order dated 4th October, 2005 passed by the Minister for Revenue and Forests as a Revisional Authority under section 18 of the Maharashtra Private Forests (Acquisition) Act, 1975 (for short “M.P.F Act”). The petitioner also seeks prohibitory injunction restraining respondents to dispossess him from the agricultural land bearing Gat No. 46/1, admeasuring 2 Hectares 96 Ares situated at Village Barwai, Tal. Panvel, Dist. Raigad.
2. The land in question was originally held by one Narayan Govind Shete and bore survey No. 27, Hissa No. 4. On 24th January, 1961 a notice under section 35(3) of the Indian Forests Act was issued and the landlord was called upon to show cause as to why the land be not declared as a private forest. The petitioner claims to be legal representative of deceased Smt. Rubbabai Shabbar Hussein, who had acquired the land in question from the original holder, namely, Narayan Govind Shete. An application was submitted for grant of licence to extract stone/rubble/murum from a natural quarry available in the said land. The licence was issued but later on cancelled.
3. The petitioner and Smt. Rubbabai, predecessor in title of the petitioner, had preferred a writ petition (Writ Petition No. 309 of 1982) challenging the order of cancelling licence for quarrying in the said land. The petition was, however, dismissed on 4th September, 1990. Thereafter an application was filed on 11th March, 1991 before the Sub-Divisional Officer/Deputy Collector, Panvel to start inquiry under section 22-A, suo motu and to release the land from declaration as forest land. The Sub-Divisional Officer/Dy. Collector, Panvel, granted the application and held that though notice under section 35(3) of the Forests Act was issued, yet Notification under section 35(1) of the Forests Act was not issued and therefore the land could not be treated as private forest. Consequently, the Sub-Divisional Officer/Deputy Collector, Panvel, held that there was no need to proceed under section 22-A of the Maharashtra Private Forests (Acquisition) Act, 1975. It was declared that the petitioner was free to enjoy the land in question.
4. Feeling aggrieved, a revision petition was preferred by respondent No. 2. The revision petition came to be allowed by order dated 4th October, 2000 passed by the Minister for Forests. It is this order, which is subject-matter of the challenge in the present petition.
5. According to the petitioner, previous Writ Petition No. 309 of 1982 was dismissed on technical ground and it was only regarding the permission for use of the land for quarrying, which was revoked on 23rd December, 1981. The petitioner has no other source of income and depend upon the income derived from the stones quarry. The land in question was not used as a forest and could not be declared as such. The declaration of private forest ought to have been made within a period of one year after the notice but the same was not done and as such the land in question cannot be treated as a private forest. It is further contended that respondent No. 3 failed to prefer any appeal against the order of the Sub-Divisional Officer/Deputy Collector, Panvel, and as such the order dated 20th June, 1994 became final. The impugned order is, therefore, bad-in-law and deserves to be set aside.
6. We have heard learned Counsel for the parties and have perused the relevant documents available on record. There is no dispute about the fact that a notice under section 35(3) of the Forests Act was issued on 24th January, 1961. It appears that the previous owner, namely, Shri Narayan Govind Shete was duly served with the copy of the said notice on 17th March, 1961.
7. Learned Counsel, Shri Limaye, submits that the definition of expression “private forest” as envisaged under section 2(f)(iii) of the Maharashtra Private Forests (Acquisition) Act, 1975 is not properly considered by the Honourable Minister for Forests and as such the impugned order is bad-in-law. He further argued that when there was no appeal preferred by respondent No. 2, the revision should not have been entertained by the Honourable Minister. He further contended that the Notification under section 35(1) of the Forests Act has not been issued and as such the land in question cannot be treated as a private forest. Lastly, it is urged that atleast 2 Hectares land should have been excluded from the declaration made under the impugned order. On the other hand, the learned Additional Government Pleader, Shri Nargolkar, has supported the impugned order.
8. The revision application was moved by respondent No. 3 under section 18 of the Maharashtra Private Forests (Acquisition) Act, 1975 on 14th June, 1995. This application was filed within one year from the date of order passed by the Sub-Divisional Officer/Dy. Collector, Panvel. The powers of revision under section 18 are available to the Government. In the present case, there appears no illegality committed by the Honourable Minister, while entertaining the revision petition under section 18. The revision is not barred if appeal is not preferred.
9. The order passed by the Sub-Divisional Officer/Deputy Collector, Panvel, would show that due to absence of Notification under section 35(1) of the Forests Act it was declared that the land in question cannot be treated as private forest. This approach of the Sub-Divisional Officer/Deputy Collector, Panvel, is itself incorrect. This Court in the case of Ankush Keshav Bowledkar v. State of Maharashtra, 1998 (3) Mh.L.J 776, has held that if a notice has been issued under section 35(3) of the Indian Forests Act, 1927 in respect of any land prior to coming into force of the Maharashtra Private Forests (Acquisition) Act, 1975 on 30th August, 1975 such land in respect of which a notice has been issued becomes private forest under section 2(f) of the Maharashtra Private Forests (Acquisition) Act, 1975. It is further held that the crucial and relevant aspect is issuance of notice under section 35(3) of the Forests Act and not its service. So also, in the case of Chintamani Gajanan Velkar v. State of Maharashtra, AIR 2000 SC 1073, it is laid down that if notice is issued under section 35(3) of the Forests Act prior to the appointed date i.e 30th August, 1975 then the land will have to be regarded as “private forest”. Needless to say the absence of notification under section 35(1) of the Forests Act could not be treated as a ground to declare the land in question as outside the definition of expression “private forest” as was done by the Sub-Divisional Officer/Deputy Collector, Panvel.
10. True, the part of the land in question is used for quarrying purpose. We cannot overlook the fact, however, that predecessor in title of the petitioner, namely, Smt. Rubbabai started using a portion of the land for quarrying only somewhere in 1981. A part of the land could be used for quarrying purpose only after obtaining licence in 1981 but that will not change the nature of the land. The subsequent events and change of user are immaterial once it is found that notice under section 35(3) of the Forests Act was issued. We cannot overlook the fact that the original holder of the land i.e Narayan Govind Shete had never challenged the notice at any point of time. The petitioner herein and Smt. Rubbabai Shabbar Hussain filed an application dated 11th March, 1991 for inquiry under section 22-A and section 6 of the Maharashtra Private Forests (Acquisition) Act, 1975 (Exhibit “F”). The provisions of section 6 only deals with power of the Collector to decide the question where the dispute arises as to whether or not any forest is a private forest or whether or not any private forest or portion thereof is vested in the State Government. For restoration of forest land to owner under certain circumstances resort can be taken to section 22-A of the Maharashtra Private Forests (Acquisition) Act, 1975. Section 22-A(1) reads thus:
“22-A(1). Notwithstanding anything contained in the foregoing provisions of this Act, if, on an application made by any owner of private forest, within a period of six months from the date of commencement of the Maharashtra Private Forests (Acquisition) (Amendment) Act, 1978, or suo motu at any time, the Collector, after holding such inquiry as he deems fit, is satisfied that the total holding of land of such owner became less than twelve hectares on the appointed day on account of acquisition of his forest land under this Act or that the total holding of land of such owner was already less than twelve hectares on the day immediately preceding the appointed day, the Collector shall determine whether the whole of the forest land acquired from such owner or what portion thereof shall be restored to him, so, however, that his total holding of land, on the appointed day, shall not exceed twelve hectares.”
11. A plain reading of sub-clause (1) of section 22-A of the Forests Act makes it manifest that such application has to be filed by an owner of private forest within a period of six months from the date of commencement of the Maharashtra Private Forests (Acquisition) (Amendment) Act, 1978. The application was not filed within a period of six months after the commencement of the said Act but it was filed long thereafter on 11th March, 1991. Obviously such application was barred by limitation and could not have been entertained by the Sub-Divisional Officer/Deputy Collector, Panvel. There is no prayer in the application (Exhibit “F”) to delete 2 hectares land as provided under sub-clause (f)(iii) of section 2 of the Maharashtra Private Forests (Acquisition) Act, 1975. The application (Exhibit “F”) reveals that the applicants, who were aware that the limitation for filing of such application was over and the application was time barred, therefore, had submitted a lame excuse to the effect that their another petition was pending before the High Court till 1990. The pendency of such another petition (Writ Petition No. 390 of 1982) had nothing to do with the inquiry under section 22-A inasmuch as it pertained only to the extent of licence for quarrying in the land, which was subsequently revoked. Under the circumstances, the Revisional Authority has rightly held that when the notice under section 35(3) was issued much prior to the commencement of the Maharashtra Private Forests (Acquisition) Act, 1975 then the land did vest in the Government as a private forest. The impugned order, therefore, does not call for any interference.
12. In the result, we are inclined to hold that the land in question is a private forest and the impugned order is quite sustainable. Hence, the petition is dismissed. Rule discharged. There shall be no order as to costs.
Petition dismissed.
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