Maharashtra Land Development Corporation Vs State of Maharashtra

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2147-2148 OF 2004

MAHARASHTRA LAND DEVELOPMENT CORPORATION & ORS. ....Appellant(s)

Versus

STATE OF MAHARASHTRA & ANR. .....Respondent(s)

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Since the issues raised and argued in these matters are

inter-connected, we propose to dispose both of them by this

Order. Civil Appeal No. 2147 is filed by the Maharashtra

Land Development Corporation against the State of

Maharashtra seeking to challenge the judgment and order

of the Bombay High Court dated October 8, 2003 in Writ

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Petition No. 1052 of 1998. Civil Appeal No. 2148 is filed by

K.N. Shaikh against the State of Maharashtra seeking to

challenge the judgment and order of the Bombay High

Court dated October 8, 2003 in Writ Petition No. 1383 of

2002.

2. At the first stage we will deal with Civil Appeal No. 2147,

and after pronouncing the judgment herein we shall deal

with Civil Appeal No. 2148.

Civil Appeal No. 2147 of 2004

3. By the judgment in Writ Petition No. 1052 of 1998, the High

Court reversed the order and concurrent findings recorded

by the Sub-Divisional Officer on 23rd April, 1985 and the

Maharashtra Revenue Tribunal on 21st February, 1998

wherein it was held that the land in question is neither

“forest” nor “private forest” as referred to in the

Maharashtra Private Forests (Acquisition) Act, 1975

(hereinafter referred to as “the Act”).

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4. The gamut of events that led to the passing of the impugned

judgment and order of the High Court may be elaborated

here. The land in question was part of an original Survey

No. 345 in village Dahisar, Maharashtra, measuring about

650 acres. At all relevant times, it was shown as “forest

land” in the Revenue records. In or about 1947, out of 650

acres, around 365 acres was acquired for the purpose of

creating a National Park at Borivli. Original Survey No. 345

was subsequently divided into three survey numbers, being

Survey Nos. 345-A, 345-B and 345-C. The land which was

acquired was Survey No. 345-B. From the remaining land,

land admeasuring about 75 acres was given Survey No.

345-C and the land in question admeasuring about 209

acres was given Survey No. 345-A.

5. It is the case of the State of Maharashtra that village

Dahisar was Ex-Khot village. The whole land of Survey No.

345 of village Dahisar was originally owned by ex-khot of

the area by name Haji Ali Kasam Agboatwala, who expired

in the year 1945. Administration Suit No. 3415 of 1957 was

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filed in the High Court of Judicature at Bombay and the

Court Receiver, High Court of Bombay was appointed as the

Court Receiver for administration and management of the

estate belonging to Agboatwala. In 1962, in pursuance of an

order passed by the High Court, the suit land was sold

which was purchased by one M/s. Veekaylal Investment

Company (“Company” for short) from the Court Receiver.

According to the case of the State, even at that juncture the

suit land was “forest land”. In 1963-64, proceedings were

initiated under the Bombay Salsette Estate Abolition Act,

1951, and vide an order dated 24th December, 1964, the

entire land bearing Survey No. 345-A was held “forest” and

vested in the State under Section 4 of the said Act.

6. On 27th August, 1975, a notice was issued by the State

Government to the Company under sub-Section (3) of

Section 35 of the Indian Forest Act, 1927 calling upon the

Company, the owner of the land, to show cause as to why

notification under sub-Section (1) of Section 35 of the Act

should not be issued for regulating and/or prohibiting the

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non-forest activities on the land. The said notice was issued

in respect of total area of land bearing Survey No. 345-A

admeasuring 209 acres.

7. On 30th August, 1975, the Maharashtra Private Forests

(Acquisition) Act, 1975 came into force under which

allegedly land bearing Survey No. 345-A stood acquired and

vested in the State Government on the appointed day i.e.

August 30, 1975. Accordingly, on October 8, 1975, the Sub-

Divisional Officer, Bombay Sub-urban District, in exercise

of power under Section 5 of the Act, issued notice to the

company to hand over possession of the entire land of

Survey No. 345-A admeasuring 209 acres. The company

filed a reply to the said notice contending that the land

bearing Survey No. 345-A was not “forest”, much less a

“private forest”. The company also called upon the Collector

to hear and decide the question as to whether or not the

land was “forest” or “private forest” and whether it vested in

the State Government under the Act. An inquiry was

conducted under Section 6 of the Act by the Sub-Divisional

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Officer, Bombay Suburban District, wherein notices were

issued to the company, being the owner of the land as well

as to the Court Receiver. Subsequently, by an order dated

12th November, 1975, the Sub-Divisional Officer held the

land to be “private forest” and also held that the land stood

acquired and vested in the State of Maharashtra. The

company was, therefore, called upon to hand over

possession of the land within 10 days to the Collector of

Bombay.

8. The company challenged the said order passed by the Sub-

Divisional Officer by filling an appeal before the

Maharashtra Revenue Tribunal and the Maharashtra

Revenue Tribunal vide its order dated 20th March, 1976

dismissed the appeal, upholding and confirming the order

passed by Sub-Divisional Officer and observing that the

land in question was “forest” within the meaning of Section

2(c-i) of the Act of 1975. It was also held to be “private

forest” falling under Section 2(f) of the Act and as such,

stood acquired and vested in the State of Maharashtra. The

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said order was never challenged in further proceedings by

the company and became final, conclusive and binding on

the parties.

9. It may be stated that when the question of handing over

actual and physical possession of land bearing Survey No.

345-A came up, it was revealed that out of 209 acres of land

of Survey No. 345-A, land admeasuring about 53 acres was

in possession of the Maharashtra Land Development

Corporation (the appellant herein), and 50 acres was in

possession of K.N. Shaikh (appellant in Civil Appeal No.

2148 of 2004). The Company, in the circumstances, handed

over to the Respondent-State, possession of land

admeasuring about 106 acres of land out of 209 acres of

Survey No. 345-A.

10. The appellant-Corporation herein objected to handing over

possession of the land which was with it. It filed

Miscellaneous Petition No. 512 of 1976 in the Bombay High

Court challenging the notice issued by Sub-Divisional

Officer. It also challenged an order dated November 12,

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1975 passed by Sub-Divisional Officer, holding the land to

be “forest” as also judgment and order dated March 20,

1976 passed by Revenue Tribunal confirming the order

passed by Sub-Divisional Officer. The orders were not

challenged by the aggrieved party and they had become

final. The appellant-Corporation herein challenged the

above decisions, contending that they were inter alia in

violation of principles of natural justice. The said

Miscellaneous Petition No. 512 of 1976, however, came to

be settled on the basis of consent terms arrived at between

the parties on 19th April, 1984. The consent terms, inter

alia, provided that fresh inquiry will be conducted under

Section 6 of the Act regarding vesting of the property

admeasuring 53 acres in possession of the appellant-

Corporation. It was also ordered that in case the authority

comes to the conclusion that the land in possession of

appellant-Corporation is a “forest” and “private forest” and

that it stood acquired and vested in the Government of

Maharashtra, the appellant-Corporation would hand over

possession of the land to the Sub-Divisional Officer.

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11.In pursuance of the consent terms arrived at between the

parties, the Sub-Divisional Officer conducted fresh inquiry

under Section 6 of the Act, after issuing necessary notice to

the appellant-Corporation herein. After hearing the

appellant-Corporation, the Sub-Divisional Officer, by an

order dated 23rd April, 1985, held that land admeasuring

53 acres out of Survey No. 345-A in possession of the

appellant-Corporation was neither a forest nor “private

forest” and as such did not stand acquired and vested in

the Government of Maharashtra in accordance with the

provisions of the Act.

12.The Respondent State challenged the said order passed by

the Sub-Divisional Officer by filing an appeal before the

Maharashtra Revenue Tribunal. The Maharashtra Revenue

Tribunal, vide its judgment and order dated 29th

September, 1986, allowed the appeal, set aside the order

passed by the Sub-Divisional Officer and declared that the

land admeasuring 53 acres in possession of respondent No.

1 as 'forest” and “private forest” as defined in the Act. The

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Tribunal also held that in accordance with the provisions of

the Act, the land stood acquired and vested in the State of

Maharashtra.

13.Aggrieved with the order passed by Maharashtra Revenue

Tribunal dated 29th September, 1986, the appellant-

Corporation filed Writ Petition No. 4726 of 1986 in the

Bombay High Court. A Division Bench of the Bombay High

Court vide its judgment and order dated 13/17th March,

1992 confirmed the order passed by Maharashtra Revenue

Tribunal, holding that the land in possession of respondent

No. 1 was “forest” and “private forest”, and as such, stood

acquired and vested in the State of Maharashtra.

14.The appellant-Corporation challenged the order passed by

the Maharashtra Revenue Tribunal and confirmed by a

Division Bench of the Bombay High Court by carrying the

matter to this Court. This Court, by an order dated 27th

August, 1992, allowed the appeal, set aside the order

passed by this Court as well as by Maharashtra Revenue

Tribunal and remanded the matter to the Tribunal,

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directing it to dispose of the appeal afresh by affording to

both the parties an opportunity of adducing additional

evidence.

15.After remand, the matter was placed before the

Maharashtra Revenue Tribunal. It was re-heard and vide its

judgment and order dated 4th December, 1992, the

Tribunal held that the entire land bearing Survey No. 345-A

admeasuring 209 acres was neither “forest” nor “private

forest” and did not stand acquired and vested in the State of

Maharashtra.

16.The Department of Forest, being aggrieved by the above

decision of Maharashtra Revenue Tribunal, filed Writ

Petition No. 2023 of 1994 in the Bombay High Court and

the High Court vide its judgment and order dated

11/15/16/17th April, 1996 allowed the petition and

quashed and set aside the order passed by Maharashtra

Revenue Tribunal concluding that the entire land bearing

Survey No. 345-A, admeasuring 209 acres was “forest” and

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“private forest” which stood vested in the Government of

Maharashtra under the provisions of the Act of 1975.

17.The judgment and order of the Bombay High Court was

again challenged by the appellant-Corporation, approaching

this Court by way of Special Leave Petition No. 14259 of

1996 and this Court vide its order dated 24th September,

1996, again set aside the order of the High Court and

remanded the matter to the Maharashtra Revenue Tribunal

by granting liberty to the parties to lead further evidence

before the Tribunal and by directing the Tribunal to reach a

decision having regard to the material on record as also

which might be brought on record by the parties.

18.The Maharashtra Revenue Tribunal, in pursuance of the

direction issued by the Apex Court, considered the question

in the light of the rival contentions and the evidence before

it and by an order dated 21st February, 1998, and once

again held that the land in question cannot be treated as

“forest” or “private forest” under the Act of 1975, and hence

no action could be taken under the said Act. The appeal

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filed by the Respondents came to be dismissed. It is that

order passed by the Maharashtra Revenue Tribunal on 21st

February, 1998 which was challenged by the respondent in

Writ Petition No. 1052 of 1998 before the Bombay High

Court.

19.The Bombay High Court, however, allowed the petition

(Writ Petition No. 1052 of 1998] and decided in favour of the

State of Maharashtra, Respondent herein. In deciding the

matter, the Bombay High Court held:

“81. The Tribunal then stated:

“In this view of the admitted position, we cannot altogether refrain ourselves from finding some substance in the submission of respondent No. 1 to the effect that in the absence of any fresh evidence from the appellant, there is no fresh material to disturb the finding of the Maharashtra Revenue Tribunal as given in its last judgment of 4th December, 1992.”

With respect, the above approach of the Maharashtra Revenue Tribunal is not in consonance with law and cannot be approved. It is not open to the Tribunal to proceed on the basis that since “there is no fresh material to disturb the finding” of the MRT as given in its judgment dated 4th December, 1992, the said finding called for no interference. Once a petition was filed against the said judgment in the High Court and the High Court set aside that judgment and the

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Supreme Court allowed the appeal directing the Tribunal to consider and decide the matter afresh, in the eye of law, it cannot be said that there were “findings” by the Tribunal in its earlier judgment and in absence of “fresh evidence”, those findings need not be disturbed. To us, therefore, it is clear that this is a jurisdictional error committed by the Maharashtra Revenue Tribunal and the order is indeed vulnerable.

…104. On various grounds discussed by us in earlier part of the judgment, the Maharashtra Revenue Tribunal has committed an error of law apparent on the face of the record by holding that the land bearing Survey No. 345-A of village Dahisar was neither “forest” nor “private forest” and by taking such view, it exceeded jurisdiction and hence, the said decision deserves to be quashed by this Court by exercising powers under Articles 226 and 227 of the Constitution and accordingly, the said decision is quashed and set aside.

105. For the aforesaid reasons, in our opinion, the petition (Writ Petition No. 1052 of 1998) deserves to be allowed and is accordingly allowed. The order passed by the Maharashtra Revenue Tribunal on 21st February, 1998 in Appeal No. Forest-3 of 1997 is quashed and set aside and the land bearing Survey No. 345-A situate at Dahisar is held to be “private forest” under the provisions of the Maharashtra Private Forests (Acquisition) Act, 1975 and deemed to have vested in the State Government. Rule is accordingly made absolute. In the facts and circumstances, however, there shall be no order to costs.”

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Aggrieved by the decision of the High Court, the appellant-

Corporation has approached this Court by way of appeal.

20. In this appeal, we heard the learned counsel appearing for

both parties. Mr. Ashok Desai, Senior Advocate and

Mr. Jay Savla, appearing on behalf of the appellant-

Corporation, submitted that the findings of the Sub-

Divisional Officer in concluding that the appellant-

Corporation’s land was not a ‘private forest’ on the

appointed day, i.e. 30.08.1975, would be final, subject to

the decision of the Tribunal. Such a conclusion, according

to the counsel for the appellant-Corporation, stemmed from

the language of Section 6 of the Act. Emphasis was also

placed by the counsel on the fact that the Sub-Divisional

Officer, while deciding the matters, considered the fact that

the land was dropped from acquisition in earlier land

acquisition proceedings and it was not found suitable for

the development of a National Park.

21. According to the counsel for the appellant-Corporation, the

Indian Forest Act, 1927 clearly differentiates between

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“Government Forest” and “Privately Owned Forest”. While it

was admitted that the Government can regulate or prohibit

certain activities in such land, ownership would continue to

vest with the private party. It was the counsel’s submission

that there is therefore, no automatic vesting of a privately

owned forest, i.e. “private forest’” with the Government.

Learned counsel also took us through the reasons behind

the decision of Maharashtra Revenue Tribunal to buttress

his arguments. Adjudication as to the nature of land

whether it is “forest” or “private forest”, according to

Counsel for the appellant-Corporation, had to be done in

accordance with the provisions of 1975 Act.

22. It was submitted that the respondent-State had two

opportunities in separate rounds of litigation to produce

evidence, documentary or otherwise, and despite such

opportunities, no evidence was adduced. Counsel for the

appellant-Corporation stated that twice the matter had

reached upto the highest Court of the country and that on

both the occasions, the Supreme Court allowed the appeal

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filed by the appellant-Corporation, remanded the matter to

the Maharashtra Revenue Tribunal and granted liberty to

the parties to adduce additional evidence. It was the

contention that additional evidence had not been led by the

respondent herein but further materials had been produced

on record by the first respondent and that if on the basis of

such materials, the Tribunal had decided the matter in

favour of the appellant-Corporation, counsel contended, the

State [respondent herein] had no right to make grievance

against such order.

23. As regards the Bombay High Court’s reliance on the

decision of this Court in T.V. Godavarman Thirumulpad

v. Union of India, reported at (1997) 2 SCC 267, it was

pleaded by the counsel for the appellant-Corporation that

“forest land” as considered by this Court in the light of the

Forest Conservation Act, 1980, must be understood

according to its literal, dictionary meaning, and must not be

understood to include any area recorded as forest in the

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Government records irrespective of ownership. Moreover, it

was also contended that the provisions of the Forest

Conservation Act, 1980 do not deal with the acquisition or

vesting of ‘privately owned land’ or ‘forest’ as the case may

be. Lastly, it was also contended by the counsel for the

appellant-Corporation that the notice purportedly issued

under Section 35(3) of the Indian Forest Act, 1927 declaring

the land to be a ‘private forest’ was never produced in

previous stages of litigation, and no opportunity to dispute

the particulars of the notice was ever provided to the

appellant-Corporation.

24. On behalf of the respondent-State, it was submitted that in

the proceedings initiated under Section 37 of the Bombay

Land Revenue Code, and in the enquiry held in respect of

the applicability of the Bombay Salsette Estate Abolition

Act, 1951, it was found that the land in Survey No. 345 is a

forest land. Before the Mamlatdar, evidence was adduced by

the predecessor-in-interest of the appellant-Corporation,

M/s. Veekaylal Investment Company, to the effect that

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Survey No. 345 was a ‘jungle’. It was contended by the

learned counsel appearing for the respondent-State that the

Company at the time took the stand that the land in

question is a jungle, and not a waste land, with a view to

prevent its vesting in the State Government under Section 4

of the Bombay Salsette Estate Abolition Act, 1951. It was

urged before this Court that the appellant-Corporation, now

as the successor-in-interest of M/s. Veekaylal Investment

Company is adopting a diametrical opposite stand that the

said land is not a forest land and hence is not permissible.

25. Counsel for the Respondent-State also contended that

Survey No. 345-A in its entirety is part of Sanjay Gandhi

National Park Division. In view of the interim orders passed

by the Bombay High Court from time to time, and in

particular, of the orders dated 7th May 1997 and 17th July

1999 which applied to the said land, according to counsel

for the State Government, the land over which the State

Government claimed ownership was “forest” and “private

forest” and vested in the State Government. It was also

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submitted that irrelevant and extraneous factors have been

kept in mind by the Tribunal for coming to the conclusion

that the land was not forest/private forest. Counsel

contended that the Maharashtra Revenue Tribunal did not

take into account and consider in their proper perspective,

the relevant provisions of the Indian Forest Act, 1927,

Maharashtra Private Forest (Acquisition) Act, 1975 as well

as other Acts and various decisions of the Supreme Court,

including T.V. Godavarman Thirumulpad v. Union of

India, reported at (1997) 2 SCC 267.

26. It was also the submission of the respondent-State that the

provisions of the Maharashtra Private Forest (Acquisition)

Act, 1975 must be given an expansive interpretation in view

of the fact that the Act was introduced to ameliorate grave

concerns over the fact that private forests in Maharashtra

had been severely depleted due to unregulated, unrestricted

and excessive exploitation. A bare reading of the Act, it was

contended, would make it clear that the definition of “forest”

under Section 2 (c-i) (ii) includes land which was part of a

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forest in addition to land which is presently part of one, and

even for lands which could be treated as forests in the

future. Moreover, the State submitted, the definition of

‘private forests’ in Section 2 (f) of the Act is not only

confined to any ‘forest’ which is not the property of the

Government, but also includes, inter alia ,any ‘land’ in

respect of which a notice has been issued under Section

35(3) of the Indian Forest Act. As long as it was established

that the land was subject to such a notice, the learned

counsel contended, it was enough to vest the land in the

State Government without any enquiry.

27. This case is placed in the context of the State Government’s

attempt to acquire the land in question as a “private forest”,

amidst the efforts of the Maharashtra Land Development

Corporation to continue its quarrying operations in the

area. Therefore, this case is one that must seek to attain a

fine balance between the process of development on the one

hand, and the ecological imperative of preserving the

environment on the other. This Court has for long been an

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outspoken critic of attempts to degrade the environment,

and a vocal supporter of sustainable development.

28. Since Independence, India has travelled a long way on the

path of progress and industrialization to achieve a better

quality of life. A developing country like ours cannot afford

to ignore the growing needs of teeming millions, but this

development shall have to resonate with the preservation of

the environment. Mahatma Gandhi once said that earth

provides enough to satisfy every man’s need but not every

man’s greed. It is the greed of the mankind which has

brought environment degradation and pollution.

Preservation of the eco-system is an immutable duty under

the Constitution – a fine balance must be struck between

environmental protection and development. Many regions in

India are biodiversity ‘hotspots’, known to host a staggering

variety of flora and fauna. However, they are under the

constant threat of environmental degradation and rapid

depletion of natural resources, due to various factors,

including the desire to earn quick money. Consequently, a

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major challenge in this backdrop is to arrive at a successful

model of sustainable development – one that aims to

preserve the rich ecosystem, while addressing the economic

needs of the people in the region.

29. In as recently as September 2010, this Court has observed

in Glanrock Estates v. State of Tamil Nadu [Writ Petition

(Civil) Nos. 242 of 1988 and 408 of 2003] that :

“8. [….] [F]orests in India [are] an important part of the environment. They constitute [a] national asset. In various judgments of this Court delivered by the Forest Bench of this Court in the case of T.N. Godavarman v. Union of India (Writ Petition No. 202 of 1995), it has been held that “inter- generational equity” is part of Article 21 of the Constitution. What is inter-generational equity? The present generation is answerable to the next generation by giving to the next generation a good environment. We are answerable to the next generation and if deforestation takes place rampantly then inter-generational equity would stand violated. The doctrine of sustainable development also forms part of Article 21 of the Constitution. The “precautionary principle” and the “polluter pays principle” flow from the core value in Article 21. The important point to be noted is that in this case we are concerned with vesting of forests in the State. When we talk about inter-generational equity and sustainable development, we are elevating an ordinary principle of equality to the level of over- arching principle.”

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30. However, it is pertinent to note here that the primary issue

involved in this case is as to whether on the appointed day,

i.e., 30.08.1975 under the Maharashtra Private (Acquisition)

Forest Act, 1975 the Appellant’s land of 53 acres was a

“private forest” or not. In this regard, we have perused the

relevant sections of the Act, and the same may be produced

herein. The Preamble of the Act reads thus:

“An Act to acquire private forests in the State and to provide for certain other matters.

WHEREAS the forest land in the State is inadequate:

And WHEREAS the private forest in the State is generally in highly degraded and over-exploited state and is adversely affecting agriculture and agricultural population;

AND WHEREAS it is, therefore, expedient to acquire private forests in the State of Maharashtra generally for conserving their material resources and protecting them from destruction or over-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 the public interest […]

AND WHEREAS it is also expedient to provide that in the case of owners of private forests (other than those whose lands were used for extracting minor minerals such as quarries) whose total holdings of

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lands became less than twelve hectares on the appointed day on account of acquisition of their forest lands under this Act, or whose total holdings of lands was already less than twelve hectares on the day immediately preceding the appointed day, the whole or the appropriate portion of their forest lands so acquired shall be restored to, and revested in, them, so that their total holdings of lands may be twelve hectares or else, as the case may be, and they may be able to continue to earn their livelihood from such lands; and to provide for certain other purposes hereinafter appearing.”

The State Act defines “forest” in section 2(c-i) thus:

“Forest” means a tract of land covered with trees (whether standing, felled, found or otherwise), shrubs, bushes, or woody vegetation, whether of natural growth or planted by human agency and existing or being maintained with or without human effort, or such tract of land on which such growth is likely to have an effect on the supply of timber, fuel, forest produce, or grazing facilities, or on climate, stream flow, protection of land from erosion, or other such matters and includes-

(i) land covered with stumps of trees of forest:

(ii) land which is part of a forest or lies within it or was part of a forest or was lying within a forest on the 30th day of August, 1975:

(iii) such pasture land, water-lodged or cultivable or non-cultivable land, lying within or linked to a forest, as may be declared to be forest by the State Government:

(iv) forest land held to let for purpose of agriculture or for any purposes ancillary thereto:

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(v) all the forest produce therein, whether standing, felled, found or otherwise;”

It also defines “private forest” in Clause (f) of section 2 which reads as under:-

“Private forest” means any forest which is not the property of Government and includes;

(i) any land declared before the appointed day to be a forest under section 34-A of the Forest Act;

(ii) any forest in respect of which any notification issued under sub-section (1) of section 35 of the Forest Act, is in force immediately before the appointed day;

(iii) any land in respect of which a notice has been issued under sub-section (3) of section 35 of the Forest Act, but excluding an area not exceeding two hectares in extent as the Collector may specify in this behalf;

(iv) land in respect of which a notification has been issued under section 38 of the Forest Act;

(v) in a case where the State Government and any other person are jointly interested in the forest, the interest of such person in such forest;

(vi) sites of dwelling houses constructed in such forest which are considered to be necessary for the convenient enjoyment or use of the forest and lands appurtenant thereto.”

31. Section 3 of the Act mandates that all private forests will

vest in the State Government. Section 4 enumerates steps

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to be taken by the Government on acquisition of private

forests. Section 5 enables the State Government to take over

possession of private forests. Sections 6 to 19 deal with

settlement of disputes, determination of amount to be paid

to the owners of private forests, deduction of amount of

encumbrances and extinguishment of rights of other

persons, appeals, revisions etc. Section 21 empowers the

State Government to declare certain lands as private

forests. It also provides that on publication of the

notification by the State Government regarding declaration

of any land as private forests, certain consequences would

ensue.

32.In the context of this legislative scheme, the primary

argument of the appellant-Corporation has been that the

State’s contention to give an expansive interpretation to the

term ‘forest’ as defined in Clause (c-i) of section 2 of the Act

is erroneous. The State has submitted that ‘forest’ would

include even land which was a forest in past irrespective of

whether on the appointed day, i.e, 30.8.1975, the same was

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not a forest. According to the appellant, accepting such an

interpretation would tantamount to land which was a forest

even 50 or 100 years ago, to stand vested and acquired on

the appointed day, resulting in an absurdity. To buttress

this argument, it has been the endeavour of the appellant to

prove that the said portion of the land was not a forest on

the appointed day.

33. The appellant-Corporation has pointed out to us the

conclusions reached by both the Authorities in their orders

dated 23.4.1985 and 21.2.1998. These orders relied on the

fact that the portion of the said land was under quarrying

operations, and that it was too rocky and devoid of tree

growth. Moreover, land acquisition proceedings initiated

vide order dated 15.9.1973 were withdrawn on the

recommendation of the Forest Department. All these

findings were put forth by the appellant-Corporation to

contend that the land was not a forest as per the provisions

of the Act.

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34. Despite these averments, we are unable to agree with the

contention of the appellant-Corporation. The definition of a

‘forest’ as enunciated in Section 2 (c-i) (ii) of the Act

specifically includes “land which is part of a forest or lies

within it or was part of a forest or was lying within a forest

on the 30th day of August, 1975”. It is already established

that subsequent to proceedings initiated under the Bombay

Salsette Estate Abolition Act, 1951, the entire land bearing

Survey No. 345-A was held to be a “forest” vide an order

dated 24th December, 1964. A bare reading of the

provision also indicates that the definition of ‘forest’ is an

inclusive definition and therefore, it could have a wider

connotation and it would not be appropriate to give it a

restrictive meaning. Every word and phrase of the Act is to

be understood in its context and must be given significance

so that they are not rendered redundant. The appellant has

steadfastly maintained that the interpretation of the

provisions cannot mean land which was a forest in the past

(i.e. before 30th August, 1975) to be a ‘forest’ according to

the Act. This argument might have had some force had the

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time period in question related to many decades or even a

century before. The aforementioned proceedings were

concluded in proximity to the appointed day in question,

and the character of land cannot be said to have changed

over such a relatively short period of time. It is beyond

doubt that the land which encompassed the said portion of

53 acres belonging to the appellant-Corporation was a

‘forest’ on the appointed day. In our considered opinion, the

facts on record seem to overwhelmingly support such a

conclusion.

35. The appellant has submitted that although the word ‘Forest’

was added in the Record of Right after such proceedings, it

was later dropped when the matter went up in appeal to the

Commissioner. Even if this were to be considered, it is to be

noted that the preponderance of evidence seems to indicate

the land in Survey No. 345 was considered as ‘forest’. This

is amply supported by documentary evidence, including the

mortgage deed of 1900, and the revenue records of the past

50 years. Moreover, the conveyance deed dated 29.3.1975

30

which was executed by the Court Receiver to the appellant,

clearly describes the land as “piece or parcel of forest land

with structures”. This is further buttressed by the mutation

entries till 1969-70 which described the land as a forest.

Even the mutation entries from 1970-71, have only changed

the recording to ‘huts, quarry and grass’ which does not in

any way dispute the nature of the land. That apart in

the enquiry conducted under sub-Section(2) of Section 37 of

the Bombay Land Revenue Code, it was admitted by the

Company through whom the appellant had derived title that

the land was forest land. Therefore, there is overwhelming

documentary evidence and also contemporaneous evidence

on record to prove and establish that the land, in question,

even in recent times was considered as forest land and also

retained its character as such.

36.Therefore, the issue of whether the land in question was a

‘forest’ on the appointed day, has to be seen in the context

of whether the entire land that encompassed the disputed

area was a ‘forest’ on the said date. In order to seek the

31

reasons behind such an analysis, we need only look into the

legislative scheme of the Act, which has been elaborated

hereinabove. The Statement of Objects and Reasons, which

supplement and aid in the interpretation of the provisions,

state:

“The total forest area in the State [of Maharashtra] is approximately 21 per cent of the total area. This is less that the national average and is also substantially less that the 33 1/3 per cent recommended by the National Forest Policy

Out of the total area under Forests, a considerable area is private forests. While no detailed survey has been made, a Committee appointed a decade ago estimated the same as approximately 8,985 sq.kms. These forests are in a very bad state of regression. On the one hand, they have been severely depleted due to unregulated, unrestricted and excessive exploitation, and on the other hand, there has been a lack of fresh plantation and investment in these areas. Of late, there has been an excessive spurt of indiscriminate fellings and these valuable forests are fast disappearing. As owners of such forests have failed to reboise these areas, large areas have been rendered barren and uncultivable and more and more areas are increasingly being brought to the same state…”

37. The Preamble to the Act, which is the guiding light to its

interpretation, also expresses similar concerns as to the

32

depletion of forest cover in the State. In this light, it is

important to construe the provisions of the Act in tune with

the purpose of its enactment. Such a rule of interpretation

has been supported by the decisions of this Court in a

catena of cases. In Union of India v. Ranbaxy

Laboratories Ltd., reported at (2008) 7 SCC 502, this

Court observed that all statutes have to be considered in

light of the object and purport of the Act. In Reserve Bank

of India v. Peerless General Finance and Investment Co.

Ltd. and Ors., reported at (1987) 1 SCC 424, this Court

held that:

“Interpretation [of statutory provisions] must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by

33

the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation, Statutes have to be construed so that every word has a place and everything is in its place.”

In Chief Justice of Andhra Pradesh and Others v. L. V. A.

Dixitulu and Others, reported at (1979) 2 SCC 34, a

Constitutional Bench of this Court observed:

“The primary principle of interpretation is that a constitutional or statutory provision should be construed 'according to the intent of they that made it' (Code). Normally, such intent is gathered from the language of the provision. If the language of the phraseology employed by the legislation is precise and plain and thus by itself, proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean, or evocative or can reasonably bear meaning more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of

34

the legislation, the object sought to be achieved and the consequences that may flow from the adoption of one in preference to the other possible interpretation.”

38. Therefore it is clear that the purpose of the statute and the

intention of the legislature in enacting the same must be of

paramount consideration while interpreting its provisions.

In this instance, moreover, the provisions of the Act present

no apparent conflict with the overarching objective of

vesting ‘private forests’ with the State in the Government’s

efforts to protect them. Further, it is important to note that

the said area was being used for quarrying operations by

the appellant-Corporation. That the said portion in the area

of Survey 345-A measuring 209 acres is claimed to be rocky

and devoid of growth certainly does not change the

character of the forest land. It cannot be disputed that

within forest areas, there exists water bodies swamp land,

grass land etc. The very existence of such land within the

forest area would and could not change the nature and

character of the forest land and the same would still

35

continue to be treated as forest land. In many instances

across the country, mining and quarrying operations, while

regulated, do take place in forest land, and they can very

well be considered as forest produce. However, the harmful

effects of the ecological imbalance that may result as a

consequence of quarrying operations in a forest zone is also

to be considered.

39. Thus, in light of the legislative scheme of the Act, and the

provisions discussed herein, we are of the considered

opinion that the said portion of the land, measuring 53

acres will vest with the respondent-State as a ‘private

forest’. That the area fell within a part designated as ‘forest’

on the 30th of August, 1975 is beyond dispute and is

supported by the evidence on record. Therefore, by virtue of

Section 2 (c-i) (ii) of the Act, the portion in dispute will also

be designated as a ‘private forest’ under Section 2(f) of the

Act, and the authorities are directed to maintain it as such.

40. It may also be cursorily mentioned here that both parties

have made submissions with regard to the requirement of

36

issuance of notice as per Section 35(3) of the Act. Neither

the issuance and service of the notice, nor its publication in

the Government Gazette could be challenged as both the

exercises have been done in the present case. The High

Court in its impugned order has extensively dealt with the

same and has recorded a finding that notice was issued to

the registered owner and served. These conclusions have

not been specifically challenged by the appellant. It is

proved and also recorded that the notice under Section

35(3) of Forest Act was issued to the owner on 8.8.1975 and

was served on the recorded owner. Since the notice was

issued and served on the recorded owner, the same was

sufficient compliance. In order to fortify our conclusions

we also rely on the judgment of this Court in Chintamani

Gajaman Velkar Vs. State of Maharashtra & Ors. reported

in (2003) 3 SCC 143, wherein this Court held that

irrespective of whether the notice was served on the land

owner before the appointed date or not, issuance of notice

before that day would itself be sufficient for vesting the land

in the State.

37

41. The appellant-Corporation has also alleged that the State’s

decision to consider the disputed land as automatically

vested with the Government was irrational and

disproportionate. In this regard, it was the argument of the

learned counsel for the appellant that while it may be

possible for the Government to regulate and prohibit certain

activities in ‘forest’ lands, the ownership would continue to

vest with the private owners, and there cannot be any

automatic vesting of the same. Thus it was argued that

taking away the ownership of the land was wholly

disproportionate in nature.

42. Being called upon to review this administrative action, we

have examined as to whether the same amounts to

irrational or disproportionate. The common yardstick to

determine whether the act on the part of the Government

violates established principles of administrative law has

been the Wednesbury principle of unreasonableness,

employed both by English and Indian Courts. The

Wednesbury principle was enunciated by Lord Greene MR

38

in Associated Provincial Picture Houses Limited v.

Wednesbury Corporation reported at (1947) 2 All ER 680.

To quote the learned Judge on the principle enunciated:

“What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question; the authority must disregard those irrelevant collateral matters.”

43. However, the Wednesbury principle of reasonableness has

given way to the doctrine of proportionality. Through his

decision in the celebrated case of Council of Civil Services

Unions v. Minister for the Civil Services reported at

[1985] AC 374, Lord Diplock widened the grounds of

judicial review. He mainly referred to three grounds upon

which administrative action is subject to control by judicial

39

review. The first ground being “illegality”, the second

“irrationality” and the third ‘procedural impropriety’. He

also mentioned that by further development on a case to

case basis, in due course, there may be other grounds for

challenge. He particularly emphasized the principles of

proportionality. Thus, in a way, Lord Diplock replaced the

language of ‘reasonableness’ with that of ‘proportionality’

when he said:

“By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’…It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it….”

44. The principle of proportionality envisages that a public

authority ought to maintain a sense of proportion between

particular goals and the means employed to achieve those

goals, so that administrative action impinges on the

individual rights to the minimum extent to preserve public

interest. Thus implying that administrative action ought to

40

bear a reasonable relationship to the general purpose for

which the power has been conferred. The principle of

proportionality therefore implies that the Court has to

necessarily go into the advantages and disadvantages of any

administrative action called into question. Unless the

impugned administrative action is advantageous and in

public interest such an action cannot be upheld. At the core

of this principle is the scrutiny of the administrative action

to examine whether the power conferred is exercised in

proportion to the purpose for which it has been conferred.

Thus, any administrative authority while exercising a

discretionary power will have to necessarily establish that

its decision is balanced and in proportion to the object of

the power conferred.

45.This principle has found favour in recent times with this

Court, and a number of decisions reflect the shift towards

the doctrine of proportionality.

46. In Bhagat Ram v. State of Himachal Pradesh reported at

(1983) 2 SCC 442, this Court held that if the penalty

41

imposed is disproportionate to the gravity of the

misconduct, it would violate Article 14 of the Constitution.

47. In Ex-Naik Sardar Singh v. Union of India and Ors

reported at (1991) 3 SCC 213 where instead of one bottle

of brandy that was authorized, the delinquent was found

carrying four bottles of brandy while going home on leave.

He was sentenced to three months rigorous imprisonment

and dismissal from service which was found by this Court

to be disproportionate to the gravity of the offence proved

against him.

48. In Coimbatore District Central Coop. Bank v. Employees

Assn. reported at (2007) 4 SCC 669 this Court stated that

the doctrine of proportionality has not only arrived in our

legal system but is here to stay. With the increasing

presence and visibility of administrative law and the need to

control possible abuse of discretionary powers by various

administrative authorities, certain principles have been

evolved by reference to which the action of such authorities

can be judged. If any action taken by an authority is

42

contrary to law, improper, irrational or otherwise

unreasonable, a court competent to do so can interfere with

the same while exercising its power of judicial review.

49. In Charanjit Lamba vs. Commanding Officer, Southern

Command and Ors, reported at AIR 2010 SC 2462, it was

held that

“The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. We are not unmindful of the development of the law that from the doctrine of Wednesbury unreasonableness, the court is leaning towards the doctrine of proportionality....”

50. The test of proportionality is therefore concerned with the

way in which the decision-maker has ordered his priorities,

i.e., the attribution of relative importance to the factors in

the case. Thus, it is not so much the correctness of the

decision that is called into question, but the method to

reach the same. In this context, we are to see if the decision

of the respondent-State in considering the disputed

43

property to be automatically vested with the Government is

commensurate with public interests, in a way that affects

individual rights in a minimal way.

51.The decision of the Government, as we have elucidated

earlier, has been guided by the provisions in the Act, which

seek to conserve and protect private forests in the State of

Maharashtra that have been facing severe depletion and

exploitation. Therefore, the Act, which provides for the

vesting of private forests with the Government, does so in

the general interests of the public in tune with principles of

environmental protection and sustainable development, to

which we have alluded at the outset. In our opinion, the

respondent-State was only acting in accordance with the

principles envisaged in the Act. This action cannot in any

way said to be disproportionate or irrational solely because

it divests the appellant-Corporation of the land within

Survey 345-A. The circumstances of this case, especially in

so far as it relates to the quarrying operations conducted by

the appellant-Corporation in the said area, merit that the

44

State protects the interests of the general public by

acquiring the land as a private forest.

52.Therefore, after giving thoughtful consideration to the

issues, we find that the appellant has failed to make out

any case before us for interference with the orders passed

by the High Court. Hence, in the light of the aforesaid

issues, principles and precedents in question, we are of the

considered opinion that the appeal is without merit and

deserves to be dismissed.

Civil Appeal No. 2148 of 2004

53.Civil Appeal No. 2148 is filed by K.N. Shaikh [appellant

herein] against the State of Maharashtra seeking to

challenge the judgment and order of the Bombay High

Court dated October 8, 2003 in Writ Petition No. 1383 of

2002. The said Writ Petition was preferred against the

decision of the Maharashtra Revenue Tribunal upholding

the order of the Sub-Divisional Officer declaring that the

survey No. 345-A constitutes a private forest in terms of

45

Section 2(f) of the Maharashtra Private Forest Act, 1975 and

that it stood vested in the State Government in terms of

Section 3(1) thereof. The Bombay High Court, while

dismissing Writ Petition No. 1383 of 2002, held:

“So far as Writ Petition No. 1383 of 2002 is concerned, the Maharashtra Revenue Tribunal considered the matter again after the review petition was allowed by this Court and dismissed the appeal filed by the petitioner appellant. We see no infirmity in the reasons recorded and conclusions reached by the Tribunal. In our opinion, the said decision requires no interference. The petition, therefore, deserves to be dismissed and is accordingly dismissed.”

54.Before this Court, Counsel for the appellant herein has

contended that the Bombay High Court failed to consider

the additional submissions put forth by the appellant, and

proceeded to dismiss the appeal in a common judgment.

However, upon hearing the learned counsel and on perusal

of the submissions, we find that the appellant herein has

placed similar, if not identical, arguments to that of the

Maharashtra Land Development Corporation.

46

55.Counsel for the appellant herein has primarily contended

that the meaning of ‘forest’ must be understood in its

ordinary sense, and that it would be inconceivable to think

of forest land without trees and shrubbery. Consequently, it

was submitted, the rocky area devoid of growth cannot be

considered a ‘forest’ and must instead be understood as a

wasteland that cannot vest with the State Government. For

reasons elaborated in the previous appeal, we are unable to

agree with the learned counsel for the appellant. The land in

question remains, in essence, a forest and the mere

purported presence of a rocky area therein cannot change

its character.

56.Moreover, it is pertinent to observe that the appellant has

based his claim on the basis of possession of land without

any deed of conveyance or sale deed to support the same.

Moreover, such a claim is not based on any interest on the

land, but on the fact that the appellant used to perform

quarrying operations on the same. Therefore, the

Maharashtra Revenue Tribunal while holding that the land

47

in question cannot be treated as “forest” or “private forest”

under the Act of 1975, still chose to dismiss the claim of the

appellant herein. In appeal, the High Court was also

inclined to do the same. Consequently, it is clear that the

appellant stands on the same, if not weaker, footing as the

Corporation. In the light of the reasons that we have

enunciated in Civil Appeal No. 2147 of 2004, which are

entirely applicable to the case at hand, we find that the

appeal is without merit and deserves to be dismissed.

………………………………..J. [Dr. Mukundakam Sharma]

……………………………….J. [Anil R. Dave]

New Delhi, November 11, 2010.

48

MAHARASHTRA LAND DEVELOPMENT CORPORATION Vs STATE OF MAHARASHTRA

MAHARASHTRA LAND DEVELOPMENT CORPORATION Vs STATE OF MAHARASHTRA