MAHARAJA FATEHSINHRAO ZOO TRUST v. STATE — 1999 DIGILAW 283 (GUJ)

R. K. ABICHANDANI, J. ( 1 ) ). The petitioner Maharaja Fatehsinhrao Zoo Trust challenges the order dated 22-11-1985 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN. B. A. 648 of 1984 confirming the order dated 25-4-1984 in Ceiling Appeal No. 2 of 1984, by which the Deputy Collector had upheld the declaration of surplus land under Sec. 21 of the Gujarat Agricultural Lands Ceiling Act, 1960 made by the Agricultural Lands Tribunal in its order dated 21-2-1983, holding that 250 acres and 26 gunthas of land held by the petitioner was surplus and that the petitioner could hold only the remaining 36 acres of land. ( 2 ) ). The question arising in this petition is whether the land having forest growth can be acquired as surplus land under the Gujarat Agricultural Lands Ceiling act. The land in question, according to the petitioner-Trust, is a rich sanctuary of blackbuck preserve, known as Sunderpura preserve. According to the petitioner, the Trust was created on 28/02/1958 and its declaration was executed by maharaja Fatehsinhrao Gaekwad on 5/06/1963, as per Annexure "a" to the petition. The sanctuary is accordingly situate in the lands belonging to the petitioner-Trust. ( 3 ) ). The proceedings were instituted against the petitioner under Sec. 21 of the gujarat Agricultural Lands Ceiling Act, 1960, being Ceiling Case No. 39 of 1976, by the Mamlatdar and Agricultural Lands Tribunal, Baroda, in respect of the lands in question, which are situated in village Dhaniabi in Taluka Vadodara. These lands are about 12 Kms. from Baroda near the National Highway No. 8 and they admeasured 292 acres and 20 gunthas. The Secretary of the petitioner- trust filed a declaration in Form II on 29-6-1976 in respect of these lands. In the reply to the notice which was issued by the A. L. T. , the petitioner on 22-6- 1977 took up a contention that the land in question was not "land" within the meaning of Sec. 2 (17) of the said Act, because it was a forest land and was not being put to any agricultural use. It was contended that there was Blackbuck sanctuary in this land. It was contended that there was Blackbuck sanctuary in this land. It appears that these proceedings were held back because of the filing of Special Civil Application No. 667 of 1975 by the petitioner, which came ultimately to be dismissed by this Court on 10-8-1978, as recorded in paragraph 3 of the order of the A. L. T. dated 21-12-1983 at Annexure "b" to the petition. In the enquiry it was stated before the A. L. T. that there were trees and grass grew naturally on these lands and they were ear-marked by the former ruler Shrimant Sayajirao Gaekwad for Blackbuck sanctuary. Moreover, the land was not of even surface and was suited for wild life. If the Land Ceiling Act is applied, the wild life will be destroyed. It transpired at the enquiry that these were grass lands and were classified as "jirayat" lands, as noted in paragraph 5 of the order of the A. L. T. It was contended before the A. L. T. that the land was "forest" within the meaning of the Forest Conservation Act, 1980 and therefore, it could not be declared as surplus land under the said Act. The A. L. T. taking note of the fact that the land was not being actually put to cultivation and that it was a sanctuary for Blackbuck, held that despite those facts since the land was "land" within the meaning of Sec. 2 (17) of the Act, the provisions thereof were attracted and the Trust was entitled to retain only one unit, i. e. , 36 acres of land out of the total area, and accordingly 256 acres were declared to be surplus on 21-12-1983. This order was confirmed with a slight variation of reducing the surplus to 250 acres and 26 gunthas by order dated 25-4-1984 passed in appeal by the Deputy Collector, Baroda. The Appellate Authority also came to the conclusion that the land in question was covered by the provisions of the said act. It was observed that even if there were forest and wild life in the land, the forest Department of the Government can look after it appropriately. In the revision Application filed by the petitioner, the Revenue Tribunal also found that these lands were agricultural land within the meaning of Sec. 2 (17) of the Act as grass grew naturally on these lands. In the revision Application filed by the petitioner, the Revenue Tribunal also found that these lands were agricultural land within the meaning of Sec. 2 (17) of the Act as grass grew naturally on these lands. The Tribunal noted that the petitioner had failed to produce any trust deed or evidence showing that wild animals existed on this land. It, however, held that even if evidence was produced regarding the total number of Blackbucks along with copies of the Trust deed, it would not help the petitioner because the said Act provided exemption only under Sec. 3 thereof, which was not attracted in the petitioners case. The revenue Tribunal therefore, rejected the petitioners Revision Application by its order dated 22-11-1985 at Annexure "e" to the petition. ( 4 ) ). It was contended by the learned Counsel appearing for the petitioner that under the provisions of Sec. 2 of the Forest Conservation Act, 1980, the forest land cannot be taken away or converted into a non-forest land by any authority without the prior approval of the Central Government. Relying upon the decisions of the Supreme Court in T. N. Godavarman Thirumulkpad v. Union of India, reported in 1997 (2) SCC 267 and Samatha v. State of A. P. and Ors. , reported in 1997 (8) SCC 191 , it was contended that the word "forest" used in the Forest conservation Act, 1980 included private forests and therefore, the forest land in question cannot be considered as agricultural land within the meaning of the said act and therefore, it cannot be declared as surplus. It was further argued that the object of the said Act was to acquire surplus land and distribute amongst persons for agricultural purposes and since these were forest land with wild life, they could not be so distributed for agricultural purpose. There could be no acquisition of such lands by declaring them as surplus. It was further contended that since the lands cannot be put to agricultural use in view of the provisions of the Forest conservation Act, 1980, there was a conflict between the Forest Conservation act, 1980 and the said Ceiling Act and therefore, the provisions of the Forest conservation Act, 1980 would prevail over the Ceiling Act. Relying upon the decision of the Honble Supreme Court in Ashoka Marketing Ltd. v. Punjab national Bank and Ors. Relying upon the decision of the Honble Supreme Court in Ashoka Marketing Ltd. v. Punjab national Bank and Ors. , reported in AIR 1991 SC 855 , it was contended that when there was conflict between the two statutes, latter law abrogated earlier contrary law. It was also argued that the lands in question were "shikhar Khana" and therefore, cannot be treated as land which could be declared as surplus under the said Act. Reliance was placed on the decision of the Supreme Court in Raja anand Brahma Shah v. State of Uttar Pradesh, reported in AIR 1967 SC 1081 , in which, in context of the provisions of Sec. 17 (1) of the Land Acquisition Act, under which possession of any waste or arable land needed for public purpose could be taken in case of urgency and such land, as per the said provision, was to vest absolutely in the Government, free from all encumbrances. It was held that the expression "arable land" must be construed to mean lands which are mainly used for raising crops and therefore, the land acquired in that case, which were forest land, cannot be treated as waste land or arable land. Reliance was also placed on the decision of the Supreme Court in Controller of Estate Duty, Kerala v. V. Venugopala Varma Rajah, reported in 1976 (4) SCC 3, in which, in context of levy of estate duty, the Honble Supreme Court, while considering the question referred under Sec. 64 (1) of the Estate Duty Act, 1953 to the effect as to whether the Tribunal was correct in law in having included the value of the forest lands in the total value of the estate for the purposes of estate duty, it was held that forest land, without evidence to show that it had been cleared off and prepared or ear-marked for agricultural purposes, must be treated as prima facie on-agricultural land. It was held that after the assessees admission that it was a "forest land", which presumably prevented cultivation, no evidence was led to indicate any change of character of this land or its conversion into agricultural land. ( 5 ) ). The object underlying the said Act is to fix a ceiling on holding of agricultural land and to provide for the acquisition and disposal of surplus agricultural lands. Section 2 (1) gives inclusive definition of the word "agriculture", while sub-sec. ( 5 ) ). The object underlying the said Act is to fix a ceiling on holding of agricultural land and to provide for the acquisition and disposal of surplus agricultural lands. Section 2 (1) gives inclusive definition of the word "agriculture", while sub-sec. (6) of Sec. 2 enumerates classes of land which fall in the expression "class of land" and these are (i) perennially irrigated land, (ii) seasonally irrigated land, (iii) superior dry crop land and (iv) dry crop land. The explanation (1) thereto, inter alia, provides in clause (e) that for the purpose of this Act, "dry crop land" means land other than the land specified in paragraphs (a) to (c) (i. e. , the first three classes of land as defined in these clauses, and grass land - that is to say, land which abounds in grass grown naturally and which is capable of being used for agricultural purposes. Sub-sec. (17) of Sec. 2 defines "land" in relation to any period prior to the specified date, i. e. , 1-4-1976) as land which is used or capable of being used for agricultural purpose and in relation to any other period, land which is used or capable of being used for agricultural purposes, inter alia, including the land on which grass grows naturally. Section 5 of the said Act prescribes the ceiling area with reference to each class of land. The ceiling area is prescribed in Schedule I of the Act. No person is entitled to hold land in excess of the ceiling area as laid down by Sec. 6 (1) of the Act. The persons holding land in excess of the ceiling area on the appointed day are obliged by Sec. 10 of the Act, to furnish particulars of land to the Mamlatdar having territorial jurisdiction and all surplus lands will be deemed to be needed for a public purpose and may be acquired in accordance with the provisions of the act, as laid down in Sec. 12. When the Agricultural Lands Tribunal makes an order under Sec. 21 of the Act, declaring surplus land, it would vest in the State government free from all encumbrances from the date of such order as provided in Sec. 21 (2) of the Act. 5. When the Agricultural Lands Tribunal makes an order under Sec. 21 of the Act, declaring surplus land, it would vest in the State government free from all encumbrances from the date of such order as provided in Sec. 21 (2) of the Act. 5. 1 The above provisions indicate that the land falling in any of the classes of land held by any person in excess of the ceiling area fixed for such classes of land, is liable to be dealt with under Sec. 21 and be declared surplus in which event it will absolutely vest in the State Government. At that stage, it is immaterial to the enquiry and making of the order under Sec. 21 (1) whether such land will in fact be allotted as per the provisions of Sec. 29 of the Act. The act of declaring the land to be surplus and thereupon its vesting in the State Government under Sec. 21 (2) of the Act does not depend on the question as to whether such land will be allotted under Sec. 29 after it vests in the State Government. The acquisition of the surplus land as per the provisions of the Act does not depend upon the fact whether the land will in reality be allotted under Sec. 29 of the Act. In fact, Sec. 29b indicates that land may be allotted to a Department of the State government. Therefore, the contention that since forest has grown on the land it cannot be acquired as surplus land because forest land cannot be allotted for agricultural use under Sec. 29 is misconceived. ( 6 ) ). The only relevant aspect for pre-condition to exercise of the power to declare surplus land and its consequential vesting in the State Government under sec. 21 is, whether the land is held in excess of the ceiling area provided for the class or classes to which it belongs and is not exempted from Sec. 3 of the Act. The petitioner trust had, on the question of exemption, filed a writ petition being special Civil Application No. 667 of 1975 before this High Court, which was decided on 10/08/1978. It had challenged therein the decision rendered by the Competent Authority to the effect that the trust concerned was not entitled to exemption from the operation of the Act in respect of the lands in question. It had challenged therein the decision rendered by the Competent Authority to the effect that the trust concerned was not entitled to exemption from the operation of the Act in respect of the lands in question. In that writ petition, the Trust had stated in paragraph 3 that in the enquiry under sec. 21 of the said Act, in respect of the lands of Shrimant Fatehsinhrao pratapsinh Gaekwad (Ex-ruler of Baroda State) the Agricultural Lands Tribunal, baroda had held that his total holding exceeded the ceiling area by 407 acres and 4 gunthas. In calculating the total area of lands in dispute were also included. It was further stated that in appeal, the Collector upheld on 10-9-1965 the contention that the disputed lands were reserved for a zoo and were of the ownership of the petitioner trust. It was then stated in paragraph 4 of that petition that thereupon an application was presented to the Collector, Baroda on 18-4-1968 by the petitioner trust for an exemption certificate under Sec. 3 (1) (d) of the Gujarat Agricultural lands Ceiling Act, urging that these lands were reserved as zoo for preservation of birds and animals of rare specie such as blackbuck. It was urged that the zoo was intended for educational purpose for providing facilities for study and research into the pattern of living and behaviour of blackbucks. It was also urged that the zoo also provided for maintenance of wild animals and the lands held by the zoo were exempted from provisions of the Ceiling Act under Sec. 3 (1) (d) thereof. These contentions were rejected by the District Deputy Collector, Baroda by his order dated 20-9-1972. The Revenue Tribunal confirmed that order on 19- 8-1974 and the Special Civil Application No. 667 of 1975 filed against that order was rejected by this High Court on 10-8-1978. It was held that by virtue of the amendment Act of 1972 which came into force from 2/05/1974, Sec. 3 (1) (d) of the Ceiling Act as it stood on 1968 was repealed and no exemption was any more available to a public trust which held lands for educational purposes and therefore, even if it was assumed that the lands belonging to the petitioner trust, it was no more entitled to exemption under the Ceiling Act. Thus, the question about the exemption stood concluded by the decision of this Court against the petitioner-Trust. Thus, the question about the exemption stood concluded by the decision of this Court against the petitioner-Trust. ( 7 ) ). All land which is not perennially irrigated, seasonally irrigated or superior dry crop land specified in paragraphs (a) to (c) of Explanation I to sub-sec. (6) of sec. 2, and grass land is known as "dry crop land" as defined in clause (e) of the said Explanation, as noted above. The land in question is by all the authorities below, concurrently found to be capable of being used for agriculture. It is classified as jirayat land. In the affidavit-in-reply, the State Government has stated that as per the oral evidence of Talati-Cum-Mantri of the village, the land is of the class of dry crop land. This is borne out from the order of the Agricultural lands Tribunal dated 21-12-1983, which refers to the deposition of the Talati in paragraph 5, indicating that the land is grass land and classified as jirayat land. The concurrent finding of fact that the land is capable of being used for agricultural purpose is thus borne out from the evidence on record. The petitioner filed the declaration in Form II on 29-6-1976, i. e. , after the specified date of 1-4-1976 and as per Sec. 2 (17) (ii) (b) of the Act, the land on which grass grows naturally is included in the definition of word land. Even if a land was never used for cultivation in the past, it may still be capable of being used for agricultural purposes. The land in which there is forest is not exempted from the provisions of the Ceiling Act. If that were so, most of the vast land owners would have converted them into forests and continue to hold lands beyond the ceiling area. ( 8 ) ). The contention that since there exists forest on the land it cannot be treated as land capable of being used for agricultural purposes is wholly misconceived in context of the Ceiling Act. ( 8 ) ). The contention that since there exists forest on the land it cannot be treated as land capable of being used for agricultural purposes is wholly misconceived in context of the Ceiling Act. Even if the lands were a private forest, the petitioner was in no way better of in view of the fact that all private forests have vested free from all encumbrances and are deemed to be the property of the State government under Sec. 3 of the Gujarat Private Forests (Acquisition) Act, 1972 and only land comprised in any private forest held under personal cultivation on the appointed day as is not in excess of the ceiling area within the meaning of the expression in the said Ceiling Act, is saved. The Gujarat Private Forests (Acquisition) Act, 1972 was enacted to acquire private forests in the State of gujarat for conserving their material resources and protecting them from destruction and/or exploitation by their owners and for promoting systematic and scientific development and management of such forests for the purpose of attaining and maintaining ecological balance in public interest. The said Act is included in the Ninth Schedule to the Constitution of India at Serial No. 136. The provisions of Sec. 3 thereof under which private forests vests in the State run as under :-"3. Vesting of private forests in State Government :- (i) Notwithstanding anything contained in any law for the time-being in force or in any settlement, grant, agreement, usage, custom or any decree or order of a Court or any Tribunal or any other document, with effect on and from the appointed day, all private forests in the State of Gujarat shall vests, free from all encumbrances, in, and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the State Government; and all right, title and interest of the owner or any person other than the Government subsisting in any such forest on the said day shall be deemed to have been extinguished. (2) Nothing contained in sub-sec. (2) Nothing contained in sub-sec. (1) shall apply to so much extent of land comprised in any private forest as is held by the owner or tenant lawfully under his personal cultivation on the appointed day and as is not in excess of the ceiling area within the meaning of the expression in the Gujarat Agricultural Land Ceiling act, 1960 (Guj. XXVII of 1960), for the time-being in force or any building or structure standing thereon or appurtenant thereto. Explanation :- In this section, the expressions tenant and personal cultivation shall have the same meanings as they have in any law relating to tenancies of agricultural lands for time-being in force in the State of Gujarat. "8. 1 The provisions of sub-sec. (2) of Sec. 3 of the Private Forests Acquisition act would indicate that the legislature recognised the possibility of cultivable land being held within the private forest which has saved from compulsory acquisition to the extent of the ceiling area. It will be noted from Sec. 4 of the Private Forests acquisition Act that the person who was in possession of such forest at the time of such vesting under Sec. 3 was required to immediately hand over possession thereof to the Collector or to any other officer authorised by the State Government or the Collector in that behalf. Sub-sec. (2) of Sec. 4 provides that any person not handing over possession as required by sub-sec. (1) of Sec. 4 shall be deemed to be in unauthorised occupation of such forest and shall be liable to be summarily evicted. In short, even if there was private forest in these lands, the petitioner trust could not have held any of such land in excess of the ceiling area applicable to these lands under the Ceiling Act. The vesting of private forests in the State government took place notwithstanding anything contained in any law for the time-being in force or any settlement, grant, agreement, usage, custom or any decree or order of a Court or a Tribunal or any other document. Even the right to hold land within the ceiling area is confined to such owner or tenant who had it under his personal cultivation. Even the right to hold land within the ceiling area is confined to such owner or tenant who had it under his personal cultivation. Since the petitioner continued to hold these lands, it appears that it did not hand over possession thereof under Sec. 4 of the Private forest Acquisition Act, which would have been the case if the petitioner had treated these lands as private forest. ( 9 ) ). The Forest Conservation Act, 1980 was enacted with a view to check further deforestation, which ultimately results in ecological imbalances. The honble Supreme Court while construing the meaning of word "forest" in Sec. 2 of the Forest Conservation Act, 1980, has held in T. N. Godavarmans case (supra) that the word forest must be understood according to its dictionary meaning and would cover all statutorily recognished forests, whether designated as reserved, protected or otherwise for the purpose of Sec. 2 (i) of the Forest conservation Act. It was held that the term forest land would include also any area recorded as forest in the Government record irrespective of its ownership. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership for classification thereof. It was held that under the Forest Conservation Act, it was obvious that prior approval of the central Government is required for any non-forest activity within the area of any forest. 9. 1 In Samathas case (supra) the Honble Supreme Court in paragraph 121 of its judgment, held that "forest" bears extended meaning of a tract of land covered with trees, shrubs and vegetation and under growth intermingled with trees and pastures, be it of natural growth or man-made forestation. Under Sec. 2 of the Forest Conservation Act, as amended by the Act of 1988, it was, inter alia, provided that notwithstanding any other law for the time-being in force in the state, no State Government or other authority shall make, except with prior approval of the Central Government, any order directing that any forest land or any portion thereof may be used for any non-forest purpose. The Supreme Court held that it was, therefore, necessary for the State Government to obtain prior permission of the Central Government for (i) de-reservation of forest; and (ii) the use of forest land for non-forest purpose. The Supreme Court held that it was, therefore, necessary for the State Government to obtain prior permission of the Central Government for (i) de-reservation of forest; and (ii) the use of forest land for non-forest purpose. ( 10 ) ). It will be thus seen that the purpose of enacting Forest Conservation act, 1980 is not to prevent acquisition of land which is capable of being used for agricultural purposes. The Forest Conservation Act has nothing to do with fixation of the ceiling on holding of agricultural land. The Forest Conservation act operates in a field different from the field governed by the Ceiling Act. There is, therefore, no question of any conflict between the provisions of the Ceiling act and the provisions of the Forest Conservation Act, 1980. Both can simultaneously operate. If there is forest in the land which is declared surplus, obviously the provisions of Forest Conservation Act, 1980 would apply and such forest land cannot be put to use for non-forest purpose without the prior approval of the Central Government. That requirement of prior approval of Central government cannot be utilised by the petitioner for protecting its holding in excess of the ceiling area when on facts it has been found by the authorities below that the land in question is capable of being used for agricultural purposes and that it is classified as dry crop (jirayat) land. The ratio of the decision in ashoka Marketing Ltd. (supra) on the question of interpretation of statutes when there is a conflict between the earlier and the latter laws, cannot therefore, apply in the present case. ( 11 ) ). The decisions of the Supreme Court giving expanded meaning of the word "forest" for the purpose of Forest Conservation Act, 1980 will not have the effect of restricting the applicability of the Ceiling Act under which the land falling in the classes specified, if held surplus, can be so declared and would vest in the State Government. By claiming to have private forest in the land which is capable of being put to agricultural use, no immunity can be claimed from the provisions of the Ceiling Act. By claiming to have private forest in the land which is capable of being put to agricultural use, no immunity can be claimed from the provisions of the Ceiling Act. Private forest land is not exempted from the provisions of the Ceiling Act and when the petitioner and land classified as dry crop or grass land (jirayat), as concurrently found by the three authorities below, which is capable of being used for the purposes of agriculture, even the fact that it cannot be cultivated without prior permission of the Central Government, will not save it from being declared as surplus under the Ceiling Act. ( 12 ) ). In the above view of the matter, the petitioner has failed to make out any case for interference with the impugned decision of the Revenue Tribunal, in exercise of the powers of this Court under Arts. 226 and 227 of the Constitution of India. The petition is, therefore, rejected. Rule is discharged with no order as to costs. Interim relief stands vacated. ( 13 ) ). It was submitted by the learned Counsel for the petitioner that should the decision go against the petitioner, the interim relief may be continued to enable the petitioner to approach the higher forum. The petitioner has successfully delayed the implementation of the provisions of the Act in respect of its holding. Earlier when the same land was included in the holding of the ex-ruler, a stand was taken up by the ex-ruler that it was set apart for the petitioner trust for a sanctuary for blackbucks. This High Court in its order dated 10/08/1978, in special C. A. No. 667 of 1975 had observed :"we, therefore, do not know when, if at all any transfer took place, nor do we know what was its nature. Admittedly, the lands in question belonged to Fatehsinhrao Gaekwad in his individual capacity before 1958. When and how was his title extinguished and the title of the petitioner-Trust created ? As per declaration at Annexure "f" made in 1963, he was the sole trustee and he was the sole owner of these lands when the trust came into existence. Was it a transfer from self to self in a different capacity and if so, when did it take place and how ?"admittedly, there is no document evidencing the transfer, except the declaration made in 1963. Was it a transfer from self to self in a different capacity and if so, when did it take place and how ?"admittedly, there is no document evidencing the transfer, except the declaration made in 1963. It appears that for one reason or the other, the matter has unduly prolonged and the provisions regarding vesting of the land in the State Government, which ought to have operated a few decades back, have been successfully thwarted. There is no valid reason to extend interim relief any more. The request, therefore, cannot be accepted. .