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
- Indian Forest Act, 1927 — s. 35(1), 35(3)
- Maharashtra Private Forests (Acquisition) Act, 1975 — s. 22-A, 2(f)(iii), 3
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
1/6 43 WP.7263.2018.odt
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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