DIVISIONAL FOREST OFFICER Vs. K N SHAIKH

JUDGEMENT

(1.) THE Divisional Forest Officer, the petitioner, has prayed for an appropriate order and direction to quash the proceedings filed by the 1st respondent before the 2nd respondent, (Maharashtra Revenue Tribunal) Appeal No. 3/96 as not maintainable. Though Shri P. K. Pandit, the learned Counsel for the petitioner in effect has argued for issuance of a writ of prohibition the prayer made in the petition is for quashing of the proceedings. I have specifically mentioned so, as the Counsel has confined his submission to issuance of a writ of prohibition.

(2.) THE dispute pertains to a piece of land bearing Survey No. 345 (A) situated at Borivli, Mumbai. It appears from the record that in the year 1962 the said land along with other lands were sold to one M/s. Veekaylal Investment Co. Pvt. Ltd. by the Court Receiver. It also appears from the record that the said sale was confirmed by the High Court. Since we are not concerned with the other minor details I am skipping such details. It appears from the record that on 1-10-1970 the said M/s. Veekaylal Investment Co. Pvt. Ltd. had entered into an agreement with M/s. Vijay Associates for the sale of the said Survey No. 345 (A) and further on 9-9-1971 M/s. Vijay Associates had entered into an agreement with the present respondent No. 1 for escavation for quarrying and levelling of the lands and pursuant to the said Agreement, possession of the said land was given to the respondent No. 1. It further appears that on 6-2-1969 a Notification under section 4 of the Land Acquisition Act intending to acquire Survey No. 345 (A) for National Park was issued. On 29-3-1975 one Private Company viz. Maharashtra Land Development Corporation (M. L. D. C.) appears to have purchased 53 acres of land out of Survey No. 345 (A) from the Court Receiver, High Court, Bombay and the said M/s. Veekaylal Investment Co. Pvt. Ltd. was the conforming party. On 29-8-1975 the Divisional Forest Officer issued a notice to M/s. Veekaylal Investment Co. Pvt. Ltd. under section 35 (3) of the Indian Forest Act, 1927. On 30-8-1975 the State Act viz. Maharashtra Private Forest (Acquisition) Act, 1975 came into force on and from 30-8-1975. A notice under section 5 of the State Act was issued to M/s. Veekaylal Investment Co. Pvt. Ltd. which was replied by latter on 10-10-1975. An enquiry under section 6 of the State Act was held on 24-10-1975 and the Sub Divisional Officer by his Order dated 12-11-1975 held that the whole Survey No. 345 (A) was a Private Forest within the meaning of section 2 (f) (iii) and it vested in Government on 30-8-1975. The request made by the present respondent No. 1 for being heard was held to be not worth considering by the Sub Divisional Officer. M/s. Veekaylal Investment Co. Pvt. Ltd. filed an appeal against the Sub Divisional Officers Order before the Maharashtra Revenue Tribunal. Meanwhile on 11-3-1976 the Tahasildar, Borivli directed the present respondent No. 1 to handover possession of his quarry land to Government as the said land stood vested in Government. To be precise, I may mention here that the M. L. D. C. was in possession of 53 acres of the land and the respondent No. 1 was in occupation of 50 acres of the land from the Survey No. 345 (A ). It appears further from the record that on 18-3-1976 the present 1st respondent filed a Short Cause Suit before the Bombay City Civil Court against the letters cum orders dated 2-1-1976 and 11-3-1976 and the S. D. O. s Order dated 12-11-1975. It appears that initially an ex parte injunction was granted in his favour and on 10-10-1979 it was confirmed. The next event that has taken place is that by an order dated 20-3-1976 the Maharashtra Revenue Tribunal confirmed the order of Sub Divisional Officer dated 12-11-1975 and dismissed M/s. Veekaylal Investments Pvt. Ltd. s Appeal holding that the entire Survey No. 345 (A) was a forest, private forest and vested in the Government, subject to compliance with the requirement under section 2 (f) (iii) of the Act. As against the said Order the M. L. D. C. filed a writ petition while M/s. Veekaylal Investment Co. Pvt. Ltd. accepted the said M. R. T. Order and did nothing thereafter. On 19-10-1983 the present respondent No. 1 filed a writ petition challenging the Order of the Sub Divisional Officer dated 12-11-1975 and also the Order of the Maharashtra Revenue Tribunal dated 20-3-1975 and letter cum orders of the Divisional Forest Officer dated 2-1-1975 and Tahasildars Order dated 11-3-1975. On filing of the above writ petition the 1st respondent withdrew his suit from the City Civil Court.

(3.) IN the writ petition filed by the M. L. D. C. (Writ Petition No. 512 of 1976) it appears that on 19-4-1984 a compromise purshish in form of consent terms was filed in respect of the dispute regarding quarrying operations in 53 Acres of land which was in possession of M. L. D. C. It appears that pursuant to the compromise the M. L. D. C. raised dispute under section 6 of the State Act wherein the Sub Divisional Officer held that the notice under section 35 (3) of the Indian Forest Act, 1927 was illegal for want of prior declaration under section 34-A of the Indian Forest Act, 1927 and that the land was not forest. It was also held by him that it was not a private forest and did not vest in the Government. The State Government filed an appeal against the said Order before the Maharashtra Revenue Tribunal which finally allowed the appeal on 29-9-1986 and quashed and set aside the Sub Divisional Officers Order dated 23-4-1985. It was held by the Maharashtra Revenue Tribunal that the part of the land in possession of the M. L. D. C. was the private forest under the Act and it vested in the Government. Against the said order of the Maharashtra Revenue Tribunal the M. L. D. C. filed a Writ Petition (W. P. No. 4726 of 1986 ). By a Common Judgement and Order dated 13/17-3-1992 passed in two writ petitions viz. Writ Petition No. 3681/1983 and 4726/1986 the Division Bench of this Court (Pendse and Choudhari, JJ.) held that the entire Survey No. 345 (A) was a forest, and private forest and vested in the Government on 30-8-1975. It may be mentioned here that the Writ Petition No. 3681 of 1983 was filed by the present respondent No. 1 which was dismissed as aforesaid. It further appears from the record that the 1st respondent did not keep quiet and had also simultaneously filed a writ petition on 7-4-1997 (W. P. No. 846 of 1992) challenging the vires of the State Act; and praying for consequential orders of cancellation of the impugned order passed by the authorities. He had also filed a Review Application against the order in Writ Petition No. 3681 of 1983. In Writ Petition No. 846 of 1992 this Court passed an order of status quo. Thereafter it appears that the M. L. D. C. had carried the matter to the Supreme Court against the order passed by the High Court on 13/17-3-1992. The Supreme Court finally remanded the matter to the Maharashtra Revenue Tribunal for fresh decision after affording opportunity to both the parties by its order passed on 27-8-1992 in the S. L. P. No. 6670 of 1992 filed by the M. L. D. C. On remand the Maharashtra Revenue Tribunal had accepted the contention of the M. L. D. C. to the effect that the land Survey No. 345 (A) was neither a forest nor a private forest as contemplated by the State Act and consequently it was held that it could not vest in the State under section 3 of the Act. The State Government filed a writ petition against the said Order of the Maharashtra Revenue Tribunal (W. P. No. 2023 of 1994 ). It is however interesting to note that the Review Application filed by the 1st respondent was allowed on 16-10-1995 by the Division Bench of this Court (G. D. Kamath and Trivedi, JJ. ). The order of the Division Bench dated 13/17-3-1992 was quashed and set aside and the Writ Petition No. 3681 of 1983 was required to be re-heard. By an order dated 11/17-4-1996 the Writ Petition No. 3681 of 1983 of the 1st respondent and Writ Petition No. 2023 of 1994 filed by the State against the M. L. D. C. the learned Judges (M. B. Shah, C. J. and A. V. Savant, J.) were pleased to dismiss the Writ Petition No. 3681 of 1983 of the 1st respondent and were pleased to allow the Writ Petition No. 2023 of 1994 filed by the State against the M. L. D. C. , Both the M. L. D. C. and the present 1st respondent filed two Special Leave Petitions before the Supreme Court wherein the 1st respondents S. L. P. was dismissed leaving it open to the 1st respondent who was the appellant before the Supreme Court to adopt such other remedy as deemed appropriate.