Judgment:
D.A. Mehta, J.
1. This petition has been preferred challenging the order made by respondent No. 3, the Collector, Amreli (hereinafter referred to as 'the Collector') on 14th September, 1989 (Annexure-F) and Notification No. AKH-122-77-FLD-1477/77072-P dated 19th September, 1977 issued by the Government of Gujarat in exercise of powers conferred by Section 4 of the Forest Act, 1927 (the Central Act) as being illegal, arbitrary, without jurisdiction, misconceived and capricious.
2. It is the say of the petitioners that thereafter, during the course of hearing, the petition came to be amended with the permission of the Court and the challenge to the order made by the Collector on 14th September, 1989 (Annexure-F) has been withdrawn reserving the right to challenge the said order in future and in case of necessity, while an additional challenge has been raised to notice issued by the respondent No. 2 on 12-9/12-2006 (Annexure-I).
3. Therefore, challenge is now restricted to proceedings only under the Forest Act, 1927.
4. The petitioners claim to be the administrators of three deceased persons, who according to the petitioners are owners and occupiers of Revenue Survey No. 50 admeasuring 2012 acres and 20 gunthas of land situated at Village : Gadhiya Patla, Taluka Dhari, District : Amreli. According to the petitioners, Entry Nos. 33 and 60 dated 11th January, 1960 and 16th October, 1968 respectively showing possession of the land by the ancestors of the petitioners are correct. However, Entry No. 98 dated 25th July, 1975 showing possession of the land as that of respondent No. 4, Deputy Conservator of Forests Gir, (East) Division as well as Entry No. 117 dated 27th March, 1981 showing the land in the name of the State Government are incorrect.
5. It is submitted by learned Advocate for the petitioners that Annexure-G, the Notification, was issued on 19th September, 1977 and cannot be implemented after such a length of time by issuing the impugned notice (Annexure-I) in 2006. That the respondent- authorities are required to initiate action only within a reasonable period, and having failed to do so, cannot now be permitted to refer to and rely upon the Notification of 1977 for the purposes of divesting the possession of lands in question held by the petitioners. That respondent- authorities, should therefore, refrain from proceeding further pursuant to the impugned notice issued in 2006. The Court, is therefore, required to quash and set aside the said notice. In the course of submissions, in support of the aforesaid submission, reference was made to the proceedings initiated by the Collector under the Gujarat Private Forests (Acquisition) Act, 1972 (Private Forests Act) to contend that the said Notification of 1977 issued in exercise of powers under the Central Act cannot be pressed into service because of the following chronology of events. On 20th September, 1973, the Collector exercised the powers under Section 4(1) of the Private Forests Act authorizing Mamlatdar, Dhari to take possession of various private forests lands, one of them being the lands in question. The said communication dated 20th September, 1973 (Annexure-D) was followed up by another communication dated 1st October, 1973 containing direction to the Mamlatdar, Dhari to take possession of the stated lands, which included the lands in question. The same was challenged before the Gujarat Revenue Tribunal and vide order dated 16th February, 1978, the Tribunal restored the matter back to the Collector to make necessary inquiry in terms of Section 5 of the Private Forests Act.
6. According to the learned Advocate, therefore, when the proceedings initiated in 1973 by the Collector were set aside in 1978 by the Tribunal, the Notification issued in the interim in 1977 cannot be pressed into service because the proceedings initiated in 1973 under the Private Forests Act had been set aside by the Tribunal.
7. The aforesaid contention does not merit acceptance. Admittedly, after the order of 16th February, 1978 made by the Gujarat Revenue Tribunal, the Collector framed a fresh order on 14th September, 1989 (Annexure-F) after calling upon the petitioners on various dates to make their submissions. Ultimately, an order came to be made ex-parte in absence of any appearance on behalf of the petitioners. The order of the Collector made on 14th September, 1989 came to be challenged before the Tribunal, but the said appeal came to be dismissed for want of prosecution in absence of any appearance of the petitioners. Therefore, the order dated 14th September, 1989 made by the Collector under the provisions of the Private Forests Act has attained finality having merged with the order of the Tribunal, which has not been admittedly challenged thereafter at any point of time. In the circumstances, the action initiated under the provisions of the Private Forests Act has culminated finally in the aforesaid order dated 14th September, 1989 made by the Collector as confirmed by the Tribunal, and therefore, the contention that the Notification issued in 1977 cannot be said to be operative, is a contention which is without force.
8. In the aforesaid circumstances, namely the petitioners having given up the challenge to the order dated 14th September, 1989, as categorically averred in Paragraph No. 11(A) of the petition, it is not necessary to deal with the contention that while passing the fresh order on 14th September, 1989, the Collector had not complied with the direction issued by the Tribunal on 16th February, 1978.
9. Therefore, the limited challenge which now survives is only in relation to the Notification and the notice (Annexures G and I respectively) issued under the provisions of the Central Act. Though, in the prayer clause, Notification of 1977 has been challenged, in effect, no submissions are made as to how and in what manner said Notification is bad in law. Though, in passing reference was made to Article 300A of the Constitution of India, in relation to the said submission suffice it to state that as to whether the petitioners are to be deprived of their property or not, and whether it is to be done in accordance with law or not, is an issue which is yet to be decided.
10. The Notification issued on 19th September, 1977 has been issued in exercise of powers under Section 4 of the Central Act which stipulates that the State Government shall issue a Notification in the Official Gazette declaring that it has been decided to constitute such lands as a reserve forest and specifying the situation and limits of the land, and appointing an officer for discharging duties stipulated by Section 4(1)(c) of the Central Act. Therefore, the Notification is, in other words, only a declaration of decision to constitute the specified land as a reserve forest.
11. The consequence of such Notification is provided by Section 5 of the Central Act which lays down a bar as to acquisition of any right in or over the land comprised in such Notification, except in the manner provided by Section 5 of the Central Act.
12. This is followed by Section 6 of the Central Act which requires a Forest Settlement Officer to publish in the local vernacular language a proclamation pertaining to the details mentioned in Clauses (a), (b) and (c) of the said provision. After issuance of such proclamation an inquiry as contemplated by Section 7 of the Central Act is to be made by the Forest Settlement Officer in the manner prescribed. Thereafter, Sections 11, 12, 15 and 16 of the Central Act deal with making of orders to acquire land over which right is claimed, or make an order on claims to rights of pasture or forest produce, record where a claim is admitted, and an order recording commutation of rights. All the actions/ orders taken or made under Sections 11, 12, 15 and 16 of the Central Act are appealable under Section 17 of the Central Act. It is only after the stage at which either the orders are not challenged, or after preferring of appeals, the matter is finally decided by the Competent Authority or the Forest Court, that a Notification is required to be issued under Section 20 of the Central Act declaring the proposed forest to be a reserve forest.
13. Thus, a conjoint reading of the aforesaid provisions unfolds a scheme which stipulates granting of opportunity of hearing to an affected person after making of claims by an affected person, as the facts and circumstances may warrant, adjudication and determination of such claims, and thereafter, culminating in an order as provided for in either of Sections 11, 12, 15 and 16 of the Central Act, such orders being appealable.
14. In the facts of the case, respondent No. 2, the Forest Settlement Officer, has issued the impugned notice in 2006 in exercise of powers under Section 6 of the Central Act. The petitioners are required to place the necessary details and make their respective claims before the said authorities which will be followed by an inquiry as contemplated by provisions of Section 7 of the Central Act. The petitioners, have therefore, fully codified remedy available under the scheme which is laid down in the Central Act, and therefore, no case for intervention at the stage of notice is made out.
15. The contention that the notice is issued belatedly pursuant to the Notification issued in 1977 also does not merit acceptance. Once, a Notification has been issued, the Notification remains in operation till the same is either rescinded or modified or substituted/replaced by a fresh Notification. Merely because a period has gone bye the Notification does not lose its validity or efficacy in eyes of law. If the consequential action is initiated after a length of time from the date of issuance of the Notification, no prejudice has resulted to the petitioners because the petitioners have remained in possession of the lands in question and have enjoyed the fruits from such occupation. It is not as if the rights of the petitioners are in any manner affected. The said rights would be affected or would undergo modification only after the notice issued by the respondent-authority is adjudicated upon. Furthermore, while considering as to whether the action of the authority is belated or not, one has to also bear in mind the object and purpose of the statute. The purpose for which the statute is enacted has to be borne in mind while considering as to whether the authority can be permitted to initiate action. In the present case, at the cost of the repetition, it is required to be stated that the period during which, after issuance of Notification, the authority did not initiate action under the Central Act, the petitioners have continuously remained in occupation of the lands in question. Thus, no prejudice has been caused to the petitioners.
16. For the purpose of the present, it is not necessary to enter into any discussion as regards the status of the petitioners, namely whether the petitioners are in possession of the lands as owners, or the petitioners are in possession of the lands as mere occupiers. It will be open to the petitioners to lead evidence in this regard, while responding to the notice issued by respondent No. 2-authority.
17. Section 6 of the Central Act stipulates that while publishing a proclamation, the Forest Settlement Officer shall fix the period of not less than three months from the date of such proclamation within which period every person claiming any right mentioned either in Section 4 or 5 of the Central Act shall present before the Forest Settlement Officer, the nature of such right etc. In the circumstances, considering the period that has elapsed the impugned notice (Annexure-I) shall become operative as on today and shall be read to be granting a period of three months from today to the petitioners to comply with and respond to the said notice. Accordingly, the petitioners shall appear before the authority on 3rd August, 2009 and respondent No. 2, shall thereafter, proceed in accordance with law to deal with the submissions and contentions that may be raised by the petitioners before the said authority.
18. Subject to what is stated hereinbefore, the petition is accordingly rejected. Notice is discharged. There shall be no order as to costs.