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Bombay High Court

GANESH BRIJMOHAN POKHRIYALversusTHE TAHASILDAR, AMBERNATH AND ORS.

Decided
Disposal
Disposed Off

Holding

The land is not a private forest due to lack of proof of service of notice under Section 35(3), and the mutation entry in favor of the State Government is quashed.

Summary

The petitioner, Ganesh Brijmohan Pokhriyal, challenged Mutation Entry No. 1180 which recorded the State Government as the occupier of his land in Mulgaon, Ambernath, on the basis of a declaration that the land was a private forest under the Maharashtra Private Forests (Acquisition) Act, 1975. The High Court examined whether a notice under Section 35(3) of the Indian Forest Act, 1927 had been served on the petitioner or his predecessor, as required by law. Relying on the Supreme Court’s decision in Godrej & Boyce and subsequent judgments, the Court found no proof of service of such notice. Consequently, the declaration that the land was a private forest was held untenable, and the mutation entry favoring the State was set aside, directing that the petitioner’s name be entered as the owner. The writ petition was allowed and the interim application was disposed.

Issues considered

  • Whether a valid notice under Section 35(3) of the Indian Forest Act, 1927 was served on the petitioner or his predecessor.
  • Whether the land can be declared a 'private forest' under Section 2(f)(iii) of the Maharashtra Private Forests (Acquisition) Act, 1975 in the absence of such notice.
  • Whether the mutation entry recording the State Government as occupier is valid.

Legislation cited

Subjects

  • mutation
  • private forest
  • Indian Forest Act
  • Maharashtra Private Forests Act
  • notice service
  • land ownership
  • revenue record
  • quashing mutation

Judgment

          Digitally
          signed by
          RUSHIKESH
RUSHIKESH VISHNU
VISHNU    PATIL
PATIL     Date:
          2026.08.28
          15:59:36
          +0530
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                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                       WRIT PETITION NO. 7263 OF 2018

                       Ganesh Brijmohan Pokhriyal              ..   Petitioner
                                        Versus
                       The Tahasildar, Ambernath & Ors.        ..   Respondents
                                                  WITH
                                   INTERIM APPLICATION NO. 2782 OF 2019
                                                   IN
                                      WRIT PETITION NO. 7263 OF 2018

                       Sombahadur Attarsingh Gurang & Ors. .. Applicants
                                         Versus
                       Ganesh Brijmohan Pokhriyal & Ors.        .. Respondents
                                                        …
                       Mr. Mayuresh Lagu a/w Mr. Sagar Patil, for the Petitioner.
                       Mr. Karan S. Thorat, ‘B’ Panel Counsel, for the Respondent-
                       State.
                                                      ...

                                          CORAM: BHARATI DANGRE &
                                                 ASHISH S. CHAVAN, JJ.

                                          DATED : 24th AUGUST, 2026

                       P.C:-

                       1.      The Writ Petition raises a challenge to Mutation Entry
                       No. 1180, by which, as per the order dated 28.05.2006,
                       pursuant to invocation of Section 35(3) of the Indian Forest
                       Act, 1927, and by the letter of the State Government, the name
                       of the State Government is mutated in the 7/12 extract as the
                       occupier. He seeks quashing of the said entry and prays for


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inclusion of his name as the owner of the lands mentioned in
the respective Power of Attorneys, after removing the same
from the other rights column.

        Heard the learned counsel for the Petitioner.

       The learned counsel would specifically contend that the
Petitioner is governed by the decision of this Court in the Writ
Petitions which were decided on 05.05.2026, being Writ
Petition No. 16682 of 2025 and Writ Petition No. 17453 of
2025, which involved the lands at Village- Mulgaon, Tal-
Ambernath, Dist- Thane.

       We have perused the pleadings in the present Writ
Petition and note that the Petitioner is the owner of landed
property at Mauje Mulgaon, Tal- Ambernath, Dist- Thane, and
the ground raised in the Writ Petition is very specific that, in
the absence of any notice under Section 35(3) of the Indian
Forest Act, 1927, having been served on the Petitioner and/or
his    predecessor-in-title,       and   in   the   absence     of    any
acknowledgment of service of the notice under Section 35(3),
the declaration that the land is a deemed ‘private forest’ under
Section     2(f)(iii)   of   the     Maharashtra     Private     Forests
(Acquisition) Act, 1975, does not survive.

2.     This is the very precise point which was raised before us
in the two Writ Petitions, wherein it was recorded that there
was no proof of service of notice under Section 35(3) on the
owner or the predecessor, in the wake of the law laid down in
the case of Godrej and Boyce Manufacturing Company Limited
& Anr. Vs. State of Maharashtra & Ors 1, as well as Rohan Vijay


1 (2014) 3 SCC 430

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Nahar & Ors Vs. State of Maharshtra & Ors 2. The declaration
that it is a private forest was set aside.             In our view, the
observations made by us in the order dated 05.05.2026, to the
following effect, govern the case of the Petitioner:


            “9. In the present case, the Petitioners as well as their
            predecessors had no knowledge about any such notice
            or notification being issued. The Respondent-
            Authorities do not posses any proof about service of
            notice on the then owner of the land. They are merely
            relying on the notification issued under Section 35(1) of
            the IFA, 1927, contents of which show that notice was
            issued to one Shashishekhar Bhaskar Madgundkar. It
            refers to a schedule dated 29.11.1958 attached to the
            notification. It does not disclose any survey number, it
            covers an area of 1400 acres. The information received
            by the petitioner dated 15.07.2024, includes a notice
            purportedly issued to the then owner under Section
            35(3) of the IFA, 1927, which does not disclose the
            name of the owner, it only mentions that, the name of
            the owner is mentioned on the rear-side of the notice.
            There is no proof of service of the said notice, which is
            admitted by the Respondent Authorities. Thus, though
            the notification is issued under Section 35(1) of the IFA,
            1927, service of notice under Section 35(3) is not
            proved.      Section 35(3) itself mandates, that no
            notification under Section 35(1) can be issued unless
            notice is issued to the owner under Section 35(3). In
            view of the broader interpretation given to the word
            ‘issued’ by the Hon’ble Supreme Court, it becomes
            imperative to prove service of notice to the owner. The
            extracts of the ‘Golden Register’, contains only the
            details of the lands declared as ‘Private Forest’, and the
            notices issued to erstwhile owners. There is no proof of
            service of these notices.
                  This approach of the Respondent-Authorities is
            clearly contrary to the ratio laid down by the Hon’ble
            Supreme Court in Godrej and Boyce Manufacturing

2 2025 SCC OnLine SC 2366

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            Company Limited & Anr., (supra), which requires that,
            not only proof of notice issued under Section 35(3), but
            even proof of service of such notice. In absence of
            service of notice, it cannot be presupposed that there
            was an effective service of such notice. This view has
            been further reiterated in the decision of this Court in
            Sunil Shamrao Patil & Anr. (supra), which squarely
            applies to the present case, which reads thus:

                17.    Thus, the law settled by the Supreme
                Court in the case of Godrej & Boyce needs to
                be applied to the facts of the present case.
                Considering the statements made in the
                Affidavit in Reply of Shri. Nandkishor
                Nanasaheb on behalf of Respondent Nos. 1, 2
                and 3, it is not even the case made out that
                notices under sub-Section 3 of Section 35 of
                the Forest Act, 1927 were served upon the
                erstwhile owners of the said land. It is not
                even a case made out that a Notification under
                sub-Section 1 of Section 35 was issued with
                respect to the said land. The only reliance
                placed in the affidavit is to some notice issued
                in the month of April 1958 to one Mahadu
                Bhavna Bhalekar as reflected in the 'Golden
                Register'. In the absence of any proof of
                service of notice, sub clause (iii) of clause (f)
                of Section 2 of the MPFA is not applicable to
                the said land. Hence, the said land cannot be
                termed to be a 'Private Forest' under the
                MPFA. Hence, the said land which is subject
                matter of the Petition cannot be said to vest in
                the State Government under sub-Section 1 of
                Section 3 of the MPFA.

                18.    With respect to entry made in the
                revenue record, the same is based on
                assumption that said land being a 'Private
                Forest' stands vested in the State Government.
                In view of the law laid down in the case of
                Godrej & Boyce and in view of the statements


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                made in the Affidavit in Reply on behalf of
                Respondents Nos. 1, 2 and 3, the said land
                survey Nos. 28/1/A, 68, 69 and 70 cannot be
                said to be 'Private Forest' under sub-clause
                (iii) of clause (f ) of Section 2 of the said MPFA
                and, therefore, there is no vesting in the State
                Government by virtue of Section 3 of the
                MPFA. Only on this ground, the prayer of the
                Petitioners for quashing and setting aside the
                impugned mutation entry No. 1736 dated 23 rd
                July 2001 in respect of the said land needs to
                be accepted.

                  The notification under Section 35(1) was issued
            almost 70 years ago and in the intervening period, the
            title of the lands has undergone change of hands on few
            occasions. When the Petitioners have purchased the
            land, there was no such entry of ‘Forest’ in the revenue
            record, the Respondents themselves have admitted that
            though the notification under Section 35(1) of IFA,
            1927 was issued on 17.05.1956, but the entry to that
            effect has not been taken in the revenue record, which
            was taken only after the circular was issued by the
            Government dated 14.07.2005.
                  The other document issued to the Petitioner under
            the RTI Application is the extract of the enquiry under
            Section 22-A of the MPFA Act, 1975, in respect of
            Survey No. 1 to 90 of the Village- Mulgaon. The remarks
            column of the document shows, an order directing to
            enter the name of ‘State of Maharashtra’ in the
            possession column of the 7/12 extract, and the name of
            the owner in the other rights column. This entry has
            been taken, pending the enquiry under Section 22-A of
            the MPFA Act, 1975 in furtherance of the circular dated
            14.7.2005. It also refers to notice issued under Section
            35(3) of the MPFA Act, 1975.”


3.     While we declare that the land belonging to the Petitioner
is no longer a private forest, we make it clear that we have not
pronounced upon the validity of the entry of “forest”, and the

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name of the Petitioner is directed to be mutated in place of the
name of the State Government, as its name was mutated on the
basis that it is deemed to be a private forest.

       The Writ Petition is made absolute in the aforesaid terms.

       Pending Interim Application also stands disposed of.




(ASHISH S. CHAVAN J.)                    (BHARATI DANGRE, J.)




Rushikesh


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