Partly allowed

Pankaj Navinchandra Kothari v. State of Maharashtra and Anr.

Bombay HC2 Nov 2004WP/8400/2004

Case brief

AI extract

What is this about?

The High Court modified the eviction order against the petitioner, holding that once land restored under section 22A cannot be used for eviction. The petitioner retains possession subject to forest laws, while the authority may remove encroachments or prohibit non-forest activities. The court noted a lacuna for revenue authorities exercising forest powers without forest department input.

What did the court decide?

The order of eviction by the Assistant Conservator of Forests was modified to state that the petitioner shall not be evicted from the land once restored, subject to provisions of forest laws.

Pankaj Navinchandra Kothari Vs State of Maharashtra… — Environment and Pollution | Bombay HC (2004)

¶1

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8400 OF 2004

¶4

 Pankaj Navinchandra Kothari .. Petitioner

¶5

 Versus

¶6

 State of Maharashtra & Ors. .. Respondents.

¶7

 Mr.V.R.Shastry for petitioner

¶8

 Mrs.J.S.Pawar, A.G.P. for respondents.

¶9

 CORAM : A.P.SHAH AND
 S.C.DHARMADHIKARI, JJ.

¶10

DATE : 2nd NOVEMBER 2004.

¶11

 P.C.

¶12

 1. Petitioner impugns an order passed by the
 Assistant Conservator of Forests, Pune Division,
 Pune, directing eviction of petitioner from the
 land being S.No.139/1, 139/6, 139/7, 139/8 and
 139/9 situated at villege Pale, Taluka Maval,
 Dist.Pune. It is the grievance of the petitioner

¶13

¶14

 that by the impugned order passed under
 Maharashtra Land Revenue Code, not only the
 petitioner has been directed to remove the
 alleged encroachment but he has also been
 directed to remove himself from the said land.
 It is his grievance that 10 days time has been
 granted under the impugned order to do the
 needful failing which the Assistant Conservator
 of Forest would remove the alleged encroachment
 and the expenses in that behalf would be
 recovered as arrears of land revenue from the
 petitioner.

¶15

 2. It is not in dispute that the said land
 was purchased by the petitioner on or about 20th
 June 1994. It is his case that permission for
 construction of a forest house on part of the
 said land was granted by Additional Collector,
 Pune on 27th November 1995. It is petitioner’s
 case that in pursuance of his application N.A.
 permission was granted for using the land as
 tourists complex.

¶16

 3. On 1st March 2004, respondent No.2 served
 a notice under section 53 and 54 of the

¶17

¶18

 Maharashtra Land Revenue Code for evicting the
 petitioner from the said land on the ground that
 non-forest activities have been carried out
 thereon. According to respondent No.2, the said
 land is private forest which vests in the State
 by virtue of the provisions of Maharashtra
 Private Forest (Acquisition) Act, 1975. In reply
 to the show cause notice, petitioner contended
 that he was unaware of the fact that the said
 land is a deemed reserve forest. Petitioner
 contended that under section 22A of the said Act
 powers are conferred on the authorities to
 restore forest land in appropriate cases and an
 opportunity be given to him to make an
 application in that behalf. Petitioner contended
 that he has not encroached upon the said land and
 expressed willingness to carry out a joint
 measurement. It appears that respondent No.2 was
 not satisfied with this explanation and
 threatened to proceed with the proceedings for
 removal of encroachment and eviction of
 petitioner from the said land. It appears that
 an order was passed to this effect by him.

¶19

 4. Be that as it may, petitioner moved an

¶20

¶21

 application to S.D.O. Maval sub-division Pune
 for restoration of the land. Petitioner moved
 this application on the basis that predecessor in
 title of petitioner (original owner) was holding
 less than 12 hecters of land. According to
 petitioner, this is statutory minimum provided by
 an amendment to the Maharashtra Private Forest
 (Acquisition) Act, 1975. It appears that the
 papers were forwarded for necessary
 recommendations and report to the Assistant

¶22

 Conservator of Forest and he submitted his report
 giving no objection to restore the said land to
 the concerned land holder in accordance with law.
 At the same time, respondent No.2 issued notice
 to the petitioner for enquiry under section 54,
 54-A of Maharashtra Land Revenue Code. By this
 notice, petitioner was called upon to submit his
 written say or produce relevant documents on or
 before 17th June 2004.

¶23

 5. The S.D.O. passed an order on

¶24

 petitioner’s application for restoration of the
 land on 25th June 2004. The land was restored to
 petitioner with all encumbrances and subject to
 following conditions:-

¶25

¶26

 i) said land would continue to be a

¶27

 forest land;

¶28

 ii) petitioner should obtain prior
 permission for carrying on any non forest
 activity from the Central Government in
 accordance with the provisions of Forest
 Conservation Act, 1980;

¶29

 iii) it is only after the Central
 Govenment grants necessary approval that
 the petitioner would be placed in
 physical possession;

¶30

 iv) In 7/12 extract of the said land

¶31

 in the column "Other Rights", an
 endorsement to the effect that the land
 is subject to Forest Conservation Act,
 1980 be inserted;

¶32

 6. Grievance of petitioner is that once the
 land was restored to him with the aforesaid
 conditions and that he was allowed to take
 physical possession subject to them then, there

¶33

¶34

 was no question of his eviction from the same.

¶35

 7. Although, the learned Counsel for
 petitioner has raised various contentions while
 challenging the impugned order, in our view,
 there is much substance in the objection of
 Mrs.Pawar, learned A.G.P. that petitioner cannot
 carry on any non- forest activity in the said
 land without prior permission and approval from
 the Central Government.

¶36

 8. We are of the view that the order passed

¶37

 by the Assistant Conservator in this case
 requires no interference, save and except a
 modification that petitioner is not liable to be
 evicted from the said land once the same is
 restored to him. Petitioner can continue in
 possession of the said land subject to the terms
 and conditions of the restoration order.
 However, it is open to the authorities to remove
 any encroachment or prohibit any non forest
 activity in the said land as the land is
 admittedly a forest land and is being held
 subject to the provisions of Forest Conservation
 Act, 1980. Save and except modification, insofar

¶38

¶39

 as possession of petitioner in respect of the
 said land, we are of the view that this is not a
 fit case for interference under Article 226 of
 the Constitution of India

¶40

 9. In the light of the above following

¶41

 order:-

¶42

 Order passed by respondent No.2 on 28th
 June 2004 stands modified to the extent
 that respondent No.2 shall not evict
 petitioner from the said land but it will
 be open for him to proceed to remove
 encroachment or prohibit any non forest
 activity therein.

¶43

 10. Rest of the order is maintained.

¶44

 11. Before parting, we would like to sound a
 note of caution. Time and again, the Supreme
 Court and this Court has emphasised the aspect of
 conservation of forest. Mass destruction of
 forest has been noticed in the State. This Court
 is siezed of Public Interest Litigation as well
 as other proceedings in that behalf. This

¶45

¶46

 petition is one more instance of the sorry and
 unsatisfactory state of affairs. Despite
 repeated directions, Revenue authorities are
 being permitted to deal with forest lands. There
 is absolutely no coordination between Revenue
 authorities and Authorities exercising powers
 under Indian Forest Act, Maharashtra Private
 Forest (Acquisition) Act and Forest Conservation
 Act. The State should take immediate steps to
 divest revenue authorities of all powers to deal
 with forest lands and such powers be exclusively
 conferred upon the authorities under the Forest
 Act and none else. This would prevent
 conflicting orders and directions. This would go
 in a long way in preserving and protecting the
 forest and environment. We hope that the State
 would take appropriate steps in this behalf as
 expeditiously as possible.

¶47

 12. We are constrained to make the above
 observations as we have noticed that in this case
 also the S.D.O. who is revenue authority has
 passed order of restoration under section 22A of
 the Maharashtra Private Forest (Acquisition) Act,
 1975. Although, he has imposed stringent

¶48

¶49

 conditions and taken care by preventing non
 forest activity, we are of the view that it was

¶50

 not open for him to exercise power under the
 aforesaid statutory provision. It was his plain
 duty to leave the matter to the forest
 authorities. At the most, he could have
 implemented their orders. We leave the matter

¶51

 here. It is for the State to apply its mind and

¶52

 take appropriate decision in public interest.

¶53

 13. Petition disposed of with no order as to
 costs.

¶54

 *****

Pankaj Navinchandra Kothari v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Pankaj Navinchandra Kothari v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bharat Shivram Kumbhar and Anr. Vs Life Insurance Corporation of India and Ors.

Pandurang Banderao Pujari Vs State of Maharashtra and Ors.

Dadabhau Genuji Chavan Vs Maharashtra State Khadi and Village Industries Board and Ors.

Jolly Elevators Pvt. Ltd. and Ors. Vs State of Maharashtra and Anr.

Pramod Prabhakar Hajare Vs the State of Maharashtra and Anr.

Larsen and Toubro Ltd. Vs Union of India and Anr.