DECIDING AUTHORITY : Supreme Court
DATE OF JUDGMENT : 01/02/2000
BENCH : M. JAGANNADHA RAO & A.P. MISRA
Facts : The appellant before us is the land holder. He was in possession of various extents of lands. Now we are concerned only with Survey Nos. 31, 32 and 33 in the village Versaveo in District Thane comprising various extents of lands in all roughly amounting to 20 hectares. The appellant filed an application under Section 6 of the Maharashtra Private Forests (Acquisition) Act, 1975 which provides for settlement of disputes in relation to private forest land.Initially the Deputy Collector passed an order on 25.9,80 in favour of the appellant holding that the land was water-logged and could not be treated as forest land and he also held that the land did not vest in the State of Maharashtra on 30.8.1975 when the Maharashtra Act, 1975 came into force inasmuch as notice was issued under Section 35(3) of the Indian Forest Act 1927 on 29.8.1975 and was not served on the landholder before 30.8.1975 but was served only thereafter on 12.9.1975. In other words, the Deputy Collector held that for the purpose of the definition of “Private forest” under Section 2(f) of Maharashtra 1975 Act, it was necessary that notice be not only issued under Section 35(3) of the Indian Forest Act 1927, but should have also been served on the land holder before the commen-cement of Maharashtra Act on 30,8.1975. He, therefore, held that the private forest land of the appellant did not vest in the State under the 1975 Act on 30.8.75.
On appeal by the State, the Revenue Tribunal Maharashtra, reversed this view of the Dy. Collector dated 25.9.1980 and held that inasmuch as notice was issued on 29.8.1975 under Section 35(3) of the Indian Forest Act 1927, the private forest of the appellant vested in the State even though the notice was not served on the appellant before 30.8.1975. The Tribunal, therefore, remanded the matter by its order dated 23.8,83 and observed that the Deputy Collector should hold consequential detailed enquiries and dispose of the matter according to law. Thereafter, after the remand order, the Deputy Collector passed an order on 29.6.1992. The appellant raised a question of issuance of ’notice’ once again but the said officer held that this question had become final by the order of the Tribunal above-mentioned and could not be reopened. The appellant then went before the Tribunal which also held by its order dated 28.2,1995 that this question could not be reopened. The Review Application filed by the appellant was dismissed on 26.7,1996. The appel-lant then filed writ petition before the High. Court which was dismissed on 24,1,1997 by the learned Single Judge.
Judgement : We are concerned only with sub-clause (iii) of Section 2(f). The definition of “private forest” has been expanded b Maharashtra Act, 1975 so as to take in various categories of lands which are not Government forest land. One such category of land is mentioned in sub-clause (iii) of Section 2(f). Learned counsel for the appellant has relied upon the decision of this Court reported in Banarsi Debi v. Income Tax Officer, District IV, Calcutta & Ors., AIR (1964) SC 1742, and (Commissioner of Wealth Tax, U.P. and Anr. v. Kundan Lal Behari Lal, [1975] 4 SCC 844, to contend that in certain situations the word ’issue’ can be construed by this Court as amounting to actual service. On the other hand, learned senior counsel Mr, Mohta has placed reliance on the decision of this Court reported in Commissioner of Income tax v. Bababhai Pitambardas , (HUF) [1993] Suppl. 3 SCC 530.
It will be noticed that the procedure under Section 35 of the 1927 Act is that a notice is to be issued to the landholder under Section 35(3), it is to be served, and his objections heard. If they are rejected, then a notification is to be issued under Section 35(1) treating the land as forest land. It is true that the Maharashtra Act, 1975 which came into force on 30.8.1975 expended the definition of private forest in Section 2(f). The question for consideration is whether the appellant’s land falls within sub-clause (iii) of Section 2(f).
It will be noticed that there is difference between Section 2(f)(ii) and (iii). So far as sub-clause (ii) of Section 2(f) is concerned, if refers to various lands in respect of which Notification has been issued under Section 35(1) of the Indian Forest Act, 1927 before the appointed day 30.8.1975 But sub-clause (iii) of Section 2(f) does not refer to any Notification that could be issued under Section 35(1) of the Indian Forest Act, 1927. It only refers to the notice that could be initially issued under sub-section (3) of Section 35. In a normal case, as already stated, the notice has to be issued under Section 35(3) and should be served on the land holders, objections thereto would have to be heard and an order could be passed treating them as forest land only after the Notification under Section 35(1) was issued.
Thus in Section 2(0 we find lands in respect of which Notification under Section 35(1) has been issued. They fall under sub-clause (ii) of Section 2(f), being cases in which notice has been issued to the land holder under Section 35(3) of the 1927 Act, he had been heard and then his objections have been rejected and then the final Notification has been issued under Section 35(1) of the Indian Forest Act, 1927. Under Section 2(f)(ii) such lands automatically vest in the State on 30.8.75 if the notifica-tion under Section 35(1) of the 1927 Act has been issued before 30.8.75. There is no difficulty here. But the question is in respect of the cases where only notice has been issued under Section 35(3) before the appointed day namely, 30.8,1975. Question is whether the Legislature contemplated that there should be no further inquiry and there would be no need for any Notification under Section 35(1) of the 1927 Act?
It is true that the repealing provision – Section 24(1) of the Maharashtra Act, 1975 merely repeals Section 35 of the Indian Forest Act, 1927 and appears prima facie prospective but the question is whether there is anything in the repealing Act of 1935 which can show an intention oft the part of the Maharashtra Legislature that the further procedure con-templated by Section 35(3) – namely, notice being issued under Section 35(3) being served on the owner and the Notification under Section 35(1) being issued – has been dispensed with. In our view, the proper clue in this behalf is provided by sub- clause (iii) of Section 2(f) itself. It will be noticed that in cases where a final Notification has been issued under Section 35(1) the entire notified land would automatically vest in the State on the appointed date, namely, 30.8.1975. But in the case where only notice has been issued as per Section 35(3) before the appointed day, namely, 30.9.1975 – the Maharashtra Legislature thought that the entire property covered by the notice in the State need not vest but if excluded hectares out of the forest land held by the land holder. That was the consideration for not allowing the benefit of an enquiry under Section 35(3) and for not allowing Notification to be issued under Section 35(1) of the 1927 Act.
In our view, the Legislature has not made any discrimination in regard to the matters where Notification had been issued under Section 35(1) of the Forest Act, 1927 on the one hand and in cases where Notifica-tion had not been issued and the matter stood till at the stage of notice under Section 35(3) on the other. In latter cases, Legislature thought it fit to exclude 2 hectares of the land holder from vesting. If that was done, a notice that was issued under Section 35(3) would itself be sufficient and if such notice was issued before the appointed day i.e. 30,8.1975 the land vest in the State subject, of course that the Collector has to specify the par-ticular extent of 2 hectares which can be retained by the land holder. There is no need for any service of such notice before 30.8.75, nor for an inquiry nor for a notification under Section 35(1).
Held : Appeal disposed of with modification.directing that the Deputy Collector should specify 2 hectares of land out of Survey Nos. 31, 32 and 33 which could be retained by the appellant. The Deputy Collector will hear the appellant and pass appropriate orders in relation to the retention of 2 hectares of land. If upon such exclusion, it is found that the appellant is holding land in excess of Ceiling area under any law relating to the land ceilings, it will be for the respon-dents to take appropriate action in accordance with law. Subject to the above, the Deputy collector will specify which 2 hectares can be retained by the appellant. The appeal is disposed of with the above modification.
By Tejasv Anand , IVth Year , AMITY LAW SCHOOL,DELHI.
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