RAMCHANDRA VISHNU TENDULKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this petition filed under Article 226 of the Constitution of India, the petitioners are challenging constitutional validity of the Maharashtra Sale of Trees by Occupants belonging to Scheduled Tribes (Regulation) (Amendment) Act, 1991. The petitioners Nos. 2 to 4 are Adivasis and are holders of lands situated at Village Khand, Khoste and Vikramgadh of Jawhar Taluka in Thane District. The petitioner No. 1 is the contractor who has entered into agreement for purchase of trees from petitioners Nos. 2 to 4. Petitioners Nos. 2 to 4 are tribals and were in occupation of agricultural lands under cultivation and which lands were granted to them, under various land tenures, as occupants or holders and the lands are not of the ownership or proprietorship of the tribals. The tribals had no right to the trees standing on the lands and the trees vested in the State Government under provisions of the Bombay Land Revenue Code, 1897. On August 15, 1967 the right to all the tree growth standing on the holdings was conceded by the Government in favour of the tribals under section 25 (1) of Maharashtra Land Revenue Code, 1966.

(2.) THE Government of Maharashtra enacted Maharashtra Felling of Trees (Regulations) Act, 1964. The legislation was passed to make better provisions for regulating the felling of certain trees in the State of Maharashtra and for the purposes of preservation of trees. The expression "tree" was defined under section 2 (f) and means any tree specified in the Schedule to the Act. Section 3 prescribes that notwithstanding any custom, usage or law or the decree or order of a Court, no person shall fell any tree or cause such tree to be felled in any land unless duly empowered by the State Government to do so. Section 4 prescribes penalty for felling trees in contravention of provisions of section 3. The State Government became aware that after confirment of right to the standing trees in favour of the tribals the contractors started exploiting the poor tribals by securing agreements for purchasing and felling of trees on the lands. After securing the agreements the contractors used to secure permission from the Collector and remove the valuable trees and make huge profits. The price paid to the tribals was negligible and the agreements were one sided and conferred benefit on the contractors and to the detriment of the tribals. The Governor of Maharashtra thereupon issued an ordinance on March 3, 1969 and which was subsequently repealed and replaced by the Maharashtra Sale of Trees by Occupants belonging to Scheduled Tribes (Regulation) Act, 1969. The legislation was enacted to regulated the disposal of trees standing in the holdings of persons belonging to the Scheduled Tribes in the State of Maharashtra. The expression "occupant" as defined under section 2 (e) means an occupant belonging to a Scheduled Tribe. Section 3 prescribes that no occupant shall after the appointed day, sell any trees in his holding except with the permission or assistance of the Collector. The appointed day means March 3, 1969. Section 4 of the Act protected the contracts which were entered into prior to the appointed day provided such contracts were subsisting on the appointed day. The section provides that the occupant or the purchaser or either of them shall apply to the Collector for approval of the contract and the approval can be granted after hearing the parties and making enquiry and on recording findings in respect of certain issues, like---

(3.) THE Schedule to the Maharashtra Felling of Trees (Regulation) Act, 1964 setting out the variety of trees which attracted the prohibition under the Act was amended and some more variety of trees were brought within its ambit. On July 16, 1974 the Maharashtra Sale of Trees by Occupants belonging to Scheduled Tribes (Regulation) Act, 1969 was further amended by Maharashtra Act No. XXXI of 1974 and section 5 was deleted. The result of the deletion of section 5 was that the occupant could not enter into agreement for sale of trees after the appointed day, and the occupant can sell the trees only in accordance with section 6, that is through the intervention of the Forest Officer. The power to grant permission was initially conferred on the Collector, but subsequently it was transferred in favour of the Divisional Forest Officer to enable expeditions disposal of the applications filed by the purchasers or the occupants for sale of trees. The amending Act providing for deletion of section 5 of the 1969 Act was challenged by some of the purchasers by filing petition under Article 226 of the Constitution of India in this Court and the petition was numbered as Special Civil Application No. 1553 of 1974. Several contentions were raised in that petition, including that the amending Act No. XXXI of 1974 not having received the assent of the President could not override the provisions of the Indian Contract Act, which is the Central Act and consequently the amending Act is required to be struck down. The petition was heard by Division Bench consisting of Mr. Justice Vimadalal and Justice Sapre. Mr. Justice Vimadalal held that the amending Act of 1974 which deleted section 5 of the 1969 Act required assent of the President under Article 254 (2) of the Constitution of India and in absence thereof the amending Act XXXI of 1974 was invalid. Mr. Justice Vimadalal further held that the amending Act XXXI of 1974 effects changes which are repugnant to the Indian Contract Act and therefore void under Article 254 (1) of the constitution. Mr. Justice Vimadalal accordingly made the petition absolute. Mr. Justice Sapre delivered differing judgment and dismissed the petition, through the learned Judge did not differ with Justice Vimadalal on the question of requirement of Article 254 of the Constitution. The petition was then placed before a third Judge, Mr. Justice Deshmukh, as he then was, and the learned Judge substantially agreed with the view of Justice Vimadalal. The petition was then placed before the Division Bench of Justice Vimadalal and Justice Sapre and in accordance with the majority opinion the reliefs sought in the petition were granted. While the petition was being argued before Mr. Justice Deshmukh, it was contended that the reliefs in the petition should be moulded by taking into consideration the provisions of the amending Act No. XXXII which amended Act No. 29 of 1975, that is the Maharashtra Private Forests (Acquisition) Act, 1975. Mr. Justice Deshmukh declined to accede to the request as the reference was only in respect of difference of views between justice Vimadalal and Justice Sapre. After the opinion of Mr. Justice Deshmukh was available, it was again contended before the Bench consisting Mr. Justice Vimadalal and Mr. Justice Sapre that the reliefs should be moulded by taking into consideration the provisions of amending Act No. LXXII of 1975 amending Maharashtra Private Forests (Acquisition) Act, 1975. The Division Bench declined to accede to the request and delivered the final order on March 8, 1976 in accordance with the opinion of the majority. The decision of the Division Bench dated March 8, 1976 was challenged by the State Government by filing appeal before the Supreme Court and Civil Appeal No. 343 of 1976 was allowed by the Supreme Court on November 1, 1976 by consent of the parties and the judgment of the Division Bench dated March 8, 1976 was set aside and the proceedings were remitted back to this Court to hear the parties in respect of validity of Maharashtra Private Forests (Acquisition) Amendment Act LXXII of 1975. It is not necessary to refer to what happened to the proceedings thereafter save and except pointing out that a five Judge Bench of this Court disposed of the matter by judgment reported in 1979 Bom. L. R. 499, (Juhu Chandra Waghmare v. The State of Maharashtra.