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Saturday, February 1, 2014

Section 35(3) of the Indian Forest Act, 1927, Section 2(f)(iii) of the Maharashtra Private Forests (Acquisition) Act, 1975, Section 24 of the Private Forests Act, and Salsette Estates (Land Revenue Exemption Abolition) Act, 1951 and Urban Land (Ceiling and Regulation) Act,1976 -Godrej purchased a kowl land and obtained decree against the government when action was intiated action under Salsette Estates Act - and also obtained exemption under Urban land ceiling also and with the approval raised multi storied buildings for the staff and after the lapse of half century , it came to the light that the forest department issued notice under sec.35 to the Godrej - but there is no evidence that it was served on the Godrej nor it was published in Gazette claiming that the land was forest land and like wise there is no evidence that it was acted upon - hence the claim of forest to demolish the buildings and to deliver the vacant possession of land for developing forest under private forest Act - Apex court set aside the Bombay High court order and held that silence of Forest the word "issue" interpreted in chintamani case was over ruled - and held that The silence of the State in all the appeals before us led the appellants and a large number of citizens to believe that there was no patent illegality in the constructions on the disputed land nor was there any legal risk in investing on the disputed land. -Apex court allowed the appeals = Godrej & Boyce Mfg. Co. Ltd. & Anr. ..….Appellants Versus The State of Maharashtra & Ors. …..Respondents = 2014 (January part) judis.nic.in/supremecourt/filename=41193

  Section 35(3) of the Indian Forest  Act, 1927, Section  2(f)(iii)  of  the Maharashtra Private Forests (Acquisition) Act, 1975, Section  24  of  the  Private Forests Act, and Salsette Estates (Land Revenue Exemption  Abolition)  Act,  1951 and Urban Land  (Ceiling  and  Regulation)  Act,1976 -Godrej purchased a kowl land and obtained decree against the government when action was intiated action under Salsette Estates Act - and also obtained exemption under Urban land ceiling also and with the approval raised multi storied buildings for the staff and after the lapse of half century , it came to the light that the forest department issued notice under sec.35 to the Godrej - but there is no evidence that it was served on the Godrej nor it was published in Gazette claiming that the land was forest land and like wise there is no evidence that it was acted upon - hence the claim of forest to demolish the buildings and to deliver the vacant possession of land for developing forest under private forest Act - Apex court set aside the Bombay High court order and held that silence of Forest the word "issue" interpreted in chintamani case was over ruled - and held that The silence of the State in  all  the  appeals before us led the appellants and a large number of citizens to believe  that there was no patent illegality in the constructions  on  the  disputed  land nor was there any legal risk in  investing  on  the  disputed  land.   -Apex court allowed the appeals = 

whether the mere  issuance
of a notice under the provisions of Section 35(3) of the Indian Forest  Act,
1927 is sufficient for any land being declared  a  “private  forest”  within
the meaning of that expression  as  defined  in  Section  2(f)(iii)  of  the
Maharashtra Private Forests (Acquisition) Act, 1975.  In  our  opinion,  the
question must be answered  in  the  negative.  Connected  therewith  is  the
question
whether the word “issued” in Section 2(f) (iii) of the  Maharashtra
Private Forests Acquisition Act, 1975 read with Section  35  of  the  Indian
Forest Act, 1927 must be given a literal interpretation or a broad  meaning.
 In our opinion the word must be given a broad meaning  in  the  surrounding
context in which it is used.

3.    A tertiary question that arises is, assuming the  disputed  lands  are
forest  lands,  can  the  State  be  allowed   to   demolish   the   massive
constructions made thereon over the last half a  century. 
Given  the  facts
and circumstances of these appeals, our answer to this question is  also  in
the negative. =
We have no option, under these circumstances,  but  to  hold  that  to
this extent, Chintamani was incorrectly decided and it is overruled to  this
extent. 

 The application of the principle laid down by this  Court,  therefore,
depends on the independent facts found in a case. 
The remedy  of  demolition
cannot be applied per se with a broad brush to all cases.   
The  State  also
seems to have realized this and that is perhaps the reason why it moved  the
application that it did in Godavarman.

81.   Looking at the issue from point of view of the citizen  and  not  only
from the point of view of the State or a well  meaning  pressure  group,  it
does appear that even though the basic principle is that  the  buyer  should
beware and therefore if  the  appellants  and  purchasers  of  tenements  or
commercial  establishments  from  the   appellants   ought   to   bear   the
consequences of unauthorized construction,  the  well-settled  principle  of
caveat emptor would  be  applicable  in  normal  circumstances  and  not  in
extraordinary circumstances as these appeals  present,  when  a  citizen  is
effectively led up the  garden  path   for  several  decades  by  the  State
itself.  
The present appeals do not relate to a stray or a few instances of  unauthorized
constructions and, therefore, fall in a class of their own. 
In a  case  such
as the present, if  a  citizen  cannot  trust  the  State  which  has  given statutory permissions and provided municipal facilities, whom should  he  or she trust?

82.   Assuming the disputed land was a private forest,  the  State  remained
completely inactive when construction was going on over acres and  acres  of
land and of a very large number of buildings thereon and for a few  decades.
The State permitted the construction through the development  plans  and  by
granting exemption under the Urban Land (Ceiling and Regulation)  Act,  1976
and providing necessary  infrastructure  such  as   roads   and   sanitation
on  the disputed land and the surrounding area.  When  such  a  large  scale
activity involving the State is being carried  on  over  vast  stretches  of
land exceeding a hundred acres, it is natural for a  reasonable  citizen  to
assume that whatever actions are being taken  are  in  accordance  with  law
otherwise the State would certainly step in to prevent such  a  massive  and
prolonged breach of the law.  
The silence of the State in  all  the  appeals
before us led the appellants and a large number of citizens to believe  that
there was no patent illegality in the constructions  on  the  disputed  land
nor was there any legal risk in  investing  on  the  disputed  land.   
Under
these circumstances, for the State or the Bombay  Environment  Action  Group
to contend  that  only  the  citizen  must  bear  the  consequences  of  the
unauthorized construction may  not  be  appropriate.  
 It  is  the  complete inaction of the State, rather  its  active  consent  that  has  resulted  in
several citizens being placed in a precarious position where  they  are  now
told that their investment is actually in unauthorized  constructions  which
are liable to be demolished any time even after several  decades.  
There  is
no reason why these citizens should be the only victims of such a  fate  and
the State be held not responsible for this state of affairs;  
nor  is  there
any reason why under such circumstances this Court should not  come  to  the
aid of victims of the  culpable  failure  of  the  State  to  implement  and
enforce the law for several decades.

83.   In none of these cases is there  an  allegation  that  the  State  has
acted arbitrarily or irrationally so as to voluntarily benefit  any  of  the
appellants.  
On  the  contrary,  the  facts  show  that the appellants
followed the due legal process in making the  constructions  that  they  did
and all that can be said of the State is that its Rip Van Winkleism  enabled
the appellants to obtain valid permissions from  various  authorities,  from
time to time, to make constructions over a  long  duration.  The  appellants
and individual citizens cannot be faulted or punished for that.
84.    These  appeals  raise  larger  issues  of  good  administration   and
governance and the State has, regrettably, come out in poor  light  in  this
regard.  It is not necessary for us to say  anything  more  on  the  subject
except to conclude that even if the State  were  to  succeed  on  the  legal
issues before us, there is no way, on the facts and circumstances  of  these
appeals, that it can reasonably put the clock back and ensure that  none  of
the  persons  concerned  in  these  appeals  is  prejudiced  in  any  manner
whatsoever.
Conclusion:
85.   Accordingly, for the reasons given, all these appeals are allowed  and
the impugned judgment and order of the Bombay High Court  is  set  aside  in
all of them and the notices impugned in  the  writ  petitions  in  the  High
Court are quashed.



2014  (January part) judis.nic.in/supremecourt/filename=41193
   
R.M. LODHA, MADAN B. LOKUR, KURIAN JOSEPH

                                                       REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                         CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.1102 OF 2014
                (Arising out of S.L.P. (C) No.10677 of 2008)


Godrej & Boyce Mfg. Co. Ltd. & Anr.                         ..….Appellants

                            Versus

The State of Maharashtra & Ors.                          …..Respondents

                                    WITH

                        CIVIL APPEAL NO.1103  OF 2014
                (Arising out of S.L.P. (C) No. 10760 of 2008)


                                    WITH

                       CIVIL APPEAL NO. 1104  OF 2014
                (Arising out of S.L.P. (C) No. 11055 of 2008)


                                    WITH

                       CIVIL APPEAL NO.1105   OF 2014
                (Arising out of S.L.P. (C) No. 11057 of 2008)








                                    WITH

                       CIVIL APPEAL NO.1106   OF 2014
                (Arising out of S.L.P. (C) No. 11393 of 2008)


                                    WITH

                       CIVIL APPEAL NO. 1107   OF 2014
                (Arising out of S.L.P. (C) No. 11398 of 2008)


                                    WITH

                       CIVIL APPEAL NO. 1108   OF 2014
                (Arising out of S.L.P. (C) No. 11401 of 2008)


                                    WITH

                       CIVIL APPEAL NO. 1109   OF 2014
                (Arising out of S.L.P. (C) No. 11509 of 2008)


                                    WITH

                        CIVIL APPEAL NO.1110  OF 2014
                (Arising out of S.L.P. (C) No. 11622 of 2008)


                                    WITH

                       CIVIL APPEAL NO. 1111  OF 2014
                (Arising out of S.L.P. (C) No. 11634 of 2008)


                                    WITH

                        CIVIL APPEAL NO.1112  OF 2014
                (Arising out of S.L.P. (C) No. 11640 of 2008)





                                    WITH

                       CIVIL APPEAL NO. 1113   OF 2014
                (Arising out of S.L.P. (C) No. 12408 of 2008)

                                    WITH

                       CIVIL APPEAL NO. 1114  OF 2014
                (Arising out of S.L.P. (C) No. 21389 of 2008)


                                    WITH

                      CIVIL APPEAL NO.  1115   OF 2014
                (Arising out of S.L.P. (C) No. 15791 of 2008)


                                    WITH

                       CIVIL APPEAL NO. 1116  OF 2014
                (Arising out of S.L.P. (C) No. 16470 of 2008)


                                    WITH

                       CIVIL APPEAL NO. 1117  OF 2014
                (Arising out of S.L.P. (C) No. 24149 of 2008)


                                    WITH

                       CIVIL APPEAL NO. 1118  OF 2014
                (Arising out of S.L.P. (C) No. 10730 of 2008)


                                    WITH

                       CIVIL APPEAL NO. 1119  OF 2014
                (Arising out of S.L.P. (C) No. 25747 of 2010)







                                    WITH

                       CIVIL APPEAL NO. 1120  OF 2014
                (Arising out of S.L.P. (C) No. 25748 of 2010)

                                     AND

                       SPECIAL LEAVE PETITION (C) No. 34691 of 2011


                               J U D G M E N T
Madan B. Lokur, J.

1.    Leave granted.
2.    The principal question for consideration is
whether the mere  issuance
of a notice under the provisions of Section 35(3) of the Indian Forest  Act,
1927 is sufficient for any land being declared  a  “private  forest”  within
the meaning of that expression  as  defined  in  Section  2(f)(iii)  of  the
Maharashtra Private Forests (Acquisition) Act, 1975.  In  our  opinion,  the
question must be answered  in  the  negative.  Connected  therewith  is  the
question
whether the word “issued” in Section 2(f) (iii) of the  Maharashtra
Private Forests Acquisition Act, 1975 read with Section  35  of  the  Indian
Forest Act, 1927 must be given a literal interpretation or a broad  meaning.
 In our opinion the word must be given a broad meaning  in  the  surrounding
context in which it is used.

3.    A tertiary question that arises is, assuming the  disputed  lands  are
forest  lands,  can  the  State  be  allowed   to   demolish   the   massive
constructions made thereon over the last half a  century.  Given  the  facts
and circumstances of these appeals, our answer to this question is  also  in
the negative.
4.    This is a batch of 20 appeals and they were argued  on  the  basis  of
the facts as in the appeal of Godrej. In each  appeal,  the  minute  details
would, of course, be different but the legal issues are  the  same  and  all
the appeals were argued by learned counsel  on  the  basis  that  the  legal
issues and questions of law are the same. For  convenience,  we  have  taken
into consideration the facts in the appeal of Godrej.
Facts
5.    Godrej acquired land in Vikhroli in Salsette taluka in Maharashtra  by
a registered deed of conveyance dated 30th July 1948 from Nowroji  Pirojsha,
successor in interest of Framjee Cawasjee Banaji  who,  in  turn,  had  been
given a perpetual lease/kowl for the land by the  Government  of  Bombay  on
7th July 1835.

6.    The land was described in the perpetual  lease/kowl  as  “waste  land”
and one of the purposes of the lease was to cultivate  the  waste  land.
We
are concerned in this appeal with an area of 133 acres  and  38  gunthas  of
land bearing Old Survey Nos. 117,118 and 120 (New Survey Nos. 36 (Part),  37
and 38).  For convenience this land is hereafter referred as  the  “disputed
land”.
Consent decree in the Bombay High Court
7.    On 27th August 1951 the Legislative Assembly of the  State  of  Bombay
passed the Salsette Estates (Land Revenue Exemption  Abolition)  Act,  1951.
This statute was brought into force on 1st March 1952.   Section  4  of  the
Salsette Estates Act provided that waste lands  granted  under  a  perpetual
lease/kowl not appropriated or brought under cultivation before 14th  August
1951 shall vest in and be the property of the State.[1]

8.    According to the State, the disputed  land  was  not  appropriated  or
brought under cultivation before 14th August 1951 and, therefore, it  vested
in or was the property of the State by virtue of Section 4 of  the  Salsette
Estates Act.
9.    This factual position was  disputed  by  Godrej  and  to  resolve  the
dispute, Suit No. 413 of 1953 was filed by Godrej in the Bombay  High  Court
praying, inter alia, for  a  declaration  that  it  was  the  owner  of  the
disputed land in village Vikhroli as  the  successor  in  title  of  Framjee
Cawasjee Banaji; that the provisions of the  Salsette  Estates  Act  had  no
application to the disputed land  and,  that  the  disputed  land  had  been
appropriated  by  Godrej  before  14th  August  1951  for   its   industrial
undertaking.
10.   The suit was contested by the State by filing a written statement  but
eventually the Bombay High Court passed a  consent  decree  on  8th  January
1962 to the effect that except for an area of 31 gunthas,  all  other  lands
were appropriated and  brought  under  cultivation  by  Godrej  before  14th
August 1951 and are the property of Godrej. The consent decree reads,  inter
alia, as follows:-


           “AND THIS COURT by and with such  consent  DOTH  FUTHER  DECLARE
           that it is agreed by and between the parties  of  the  following
           lands namely
           S. No.                            Area
                                             A.G.A.
           15 Part                           0-21-0
           16 Part                           0-10-0
                                             0-31-0

           in the village of Vikhroli vest in Government under Section 4(c)
           of the said Act” [Salsette Estates Act].


           “AND THIS COURT by and with such consent  DOTH  FURTHER  DECLARE
           that it is agreed by and  between  the  parties  that  save  and
           except the lands mentioned above all other lands in the  village
           of Vikhroli  were  appropriated  or  brought  under  cultivation
           before the fourteenth day of August one  thousand  nine  hundred
           and fifty-one and are the property of the Plaintiff….”

11.   These events establish two facts: (i) Even  according  to  the  State,
the disputed land was ‘waste land’ and not a ‘forest’. This  is  significant
since the Indian Forest Act, 1927 did not apply to ‘waste land’ (due to  the
Indian Forest (Bombay Amendment) Act, 1948) with effect  from  4th  December
1948. (ii) It was acknowledged by the State that the disputed land (even  if
it was a forest) was appropriated or brought  under  cultivation  by  Godrej
before 14th August 1951.



Development Plan for the City of Bombay

12.   A development  plan  for  the  City  of  Bombay  (and  Greater  Bombay
including  Vikhroli)  was  published  on  7th  January  1967  and  the  next
development plan was published in  1991.  In  both  development  plans,  the
disputed land was designated as ‘R’ or ‘Residential’. On publication of  the
first development plan, Godrej applied for and was  granted  permission,  on
various dates, by the Municipal Corporation of Greater Bombay  to  construct
residential buildings  on  the  disputed  land.   Godrej  is  said  to  have
constructed four such buildings on the basis  of  permissions  granted  from
time to time and these building were occupied for  residential  purposes  by
its staff.
13.   On 17th February 1976 the Urban Land  (Ceiling  and  Regulation)  Act,
1976 came into force.
Since the disputed land was in excess of  the  ceiling
limit, Godrej filed statements (under Section  6  of  the  Act)  and  sought
exemption from the Competent  Authority  for  utilizing  the  excess/surplus
vacant lands for industrial and residential purposes (under  Section  20  of
the Act).
Pursuant to the request made by Godrej, it was  granted  exemption
by the State Government, as prayed for and  subject  to  certain  conditions
which included (both  initially  and  subsequently  by  a  corrigendum)  the
construction of tenements for the benefit of its employees  to  be  used  as
staff quarters.
14.   Pursuant to the  grant  of  exemption,  Godrej  applied  for  and  was
granted permission  by  the  Municipal  Corporation  of  Greater  Bombay  to
construct multi-storeyed  buildings  on  the  disputed  land.  According  to
Godrej, over a period of time,  it  has  constructed  more  than  40  multi-
storeyed residential buildings (ground+4 and ground+7), one club  house  and
five electric sub-stations. It is  said  that  over  a  couple  of  thousand
families are occupying these buildings and  that  further  construction  has
also been made, pursuant to permission granted, of  a  management  institute
and other residential buildings.
Amendments to the Indian Forest Act, 1927
15.   Chapter V of the Indian Forest Act, 1927 relates to the  control  over
forests and lands not being the property of government.  It was amended  (as
far as we are concerned) on three  occasions  by  the  State  of  Bombay  or
Maharashtra, as the case may be.[2]
16.   The first amendment was by the Indian Forest (Bombay  Amendment)  Act,
1948 being Bombay Act No. 62 of 1948. 
By this  amendment  (which  came  into
force on 4th December 1948), the  three  significant  changes  that  we  are
concerned with were:
(i) Insertion of  Section  34A  in  the  Forest  Act[3]
whereby an  inclusive  definition  of  “forest”  was  incorporated  for  the
purposes of the chapter;
(ii) Substitution of Section 35(1)  of  the  Forest
Act[4] dealing with protection of forests for  special  purposes,  including
regulatory and prohibitory  measures;
(iii)  The  words  ‘waste  lands’  or
‘land’ occurring in sub-sections (2) and (3) of Section  35  of  the  Forest
Act[5] were deleted.   Therefore,  ‘waste  lands’  were  taken  out  of  the
purview of the Forest Act (as  applicable  to  the  State  of  Bombay)  with
effect from 4th December 1948.
17.   The next amendment was made by the Indian  Forest  (Bombay  Amendment)
Act, 1955 being Bombay Act No. 24 of 1955.  
The  three  significant  changes
that we are concerned with were: (i) Amendment  to  Section  35(3)  of   the
Forest Act;[6]
(ii) Insertion  of sub-sections (4),

(5) and (6) in Section 35 of the Forest Act;[7]
 (iii) Insertion  of  Section
36A (manner of serving notice and order under  Section  36)  in  the  Forest
Act.[8]
18.   The next amendment was by the Indian Forest  (Maharashtra  Unification
and Amendment) Act, 1960 being Maharashtra  Act  No.  6  of  1961.
The  two
changes brought about were:
(i) The words “six months”  in  sub-section  (4)
of Section 35 of  the  Forest  Act  were  substituted  by  the   words  “one
year”;[9]
(ii) Sub-sections (5A) and  (7) were inserted in  Section  35  of
the Forest Act.[10]
Notice issued to Godrej
19.   Completely unknown to Godrej and not disclosed by the  State  in  Suit
No. 413 of 1953 even till 8th January  1962  when  the  consent  decree  was
passed by the Bombay High Court, a Notice bearing No. WT/53 had been  issued
to Godrej under Section 35(3) of the Forest Act (as amended)  and  published
in the Bombay Government Gazette of 6th September 1956  in  respect  of  the
disputed land in village Vikhroli.
Godrej subsequently learnt of the  notice
from a search in the records of  the  Department  of  Archives.
The  search
revealed that the notice, as published in the  Gazette,  bore  no  date  and
according to Godrej,  the  notice  was  not  served  upon  it  and,  it  was
submitted, that the notice was never acted upon. Indeed,  subsequent  events
cast a doubt on whether the notice  was  at  all  issued  to  or  served  on
Godrej. 
Notice No. WT/53 reads as follows:-
                                  “Notice.
                                  No.WT/53
                 In pursuance of sub-section  (3)  of  section  35  of  the
           Indian Forest Act, 1927 (XVI of 1927), read with rule 2  of  the
           rules published  in  Government  Notification,  Agriculture  and
           Forests Department,  No.5133/48513-J,  dated  the  19th  day  of
           September, 1950,  I,  J.V.  Karamchandani,  the  Conservator  of
           Forests, Western Circle, hereby given notice to –
                 The Manager, Godrej Boyce & Manufacture  Factory,  at  and
           post Vikhroli, B.S.D.


           calling on him to appear within two  months  from  the  date  of
           receipt of this notice before  the  Divisional  Forest  Officer,
           West Thana, to show  cause  why  the  accompanying  notification
           (hereinafter referred to as “the notification”)  should  not  be
           made by the Government of Bombay under sub-section  (1)  of  the
           said section 35 in  respect  of  the  forest  specified  in  the
           Schedule hereto appended and belonging to him.


           2. If  the  said  The  Manager,  Godrej  Boyce  and  Manufacture
           Factory, at and post Vikhroli, B.S.D., fails to comply with this
           notice, it shall be assumed that the said  The  Manager,  Godrej
           Boyce and Manufacture Factory, at and post Vikhroli, B.S.D., has
           no objection to the making of the notification.


           3. I further require that for a period of six months or till the
           date of the making of the notification,  whichever  is  earlier,
           the said The Manager, Godrej Boyce and Manufacture  Factory,  at
           and post Vikhroli, B.S.D. and all  persons who are  entitled  or
           permitted to do, therein, any or all of the things specified  in
           clause (1) of sub-section (1) of the said section 35, whether by
           reason of any right, title or interest or under any  licence  or
           contract, or otherwise, shall not after the date of this notice,
           and for the period or until the date aforesaid, as the case  may
           be, do any of the following things specified in  clause  (1)  of
           sub-section (1) of the said section 35, namely :-


           (a) the cutting and removal of trees and timber
           (b) the firing and clearing of the vegetation.


                                  Schedule
                District Thana, taluka Salsette, village Vikhroli
           S.No.118; area, 63 acres 23 gunthas, Boundaries:- North-Boundary
           of Pavai;   East-Boundary  of  Haralayi;  South-S.No.117;  West-
           Boundary of Ghatkopur.
           S.No.117;  area,  36  acres,  35  gunthas,  Boundaries:-  North-
           S.No.118;  East-S.No.120;   South-S.No.112;   West-Boundary   of
           Ghatkopur.
           S.No.120;  area,  33  acres,  13  gunthas.  Boundaries:-  North-
           Boundary of  Haralayi;  East-Agra  Road;  South-S.No.115;  West-
           S.Nos.116, 117.”


 Maharashtra Private Forests (Acquisition) Act, 1975

 20.  Sometime in 1975 the State Legislature passed the Maharashtra  Private
Forests (Acquisition) Act, 1975. The Private Forests Act came into force  on
30th August 1975 when it was published  in  the  Official  Gazette.  We  are
concerned with the definition of “forest” and “private forest” as  contained
in Section 2(c-i) and Section 2(f) respectively in the Private Forests  Act.
These definitions read as follows:
“2(c-i)  "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-logged 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 or let for purpose of agriculture or for any purposes
ancillary thereto;

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

“2(f) "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
34A 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;”



21.   We are also concerned with Section 3 (vesting of  private  forests  in
State Government), Section 5 (power  to  take  over  possession  of  private
forests) and Section 6 (settlement of disputes) of the Private Forests  Act.
These provisions read as follows:
           “Section 3 - Vesting of private Forests in State Government

            (1) 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  any  Court,  Tribunal  or
           authority or any other document, with effect  on  and  from  the
           appointed day, all private forests  in  the  State  shall  stand
           acquired and vest, 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 rights, title and interest of the owner or any person  other
           than Government subsisting in any such forest on  the  said  day
           shall be deemed to have been extinguished.

           (2) Nothing contained in sub-section (1) shall apply to so  much
           extent of land comprised in a private forest as in  held  by  an
           occupant or tenant and is  lawfully  under  cultivation  on  the
           appointed day and is not in excess of the ceiling area  provided
           by section 5 of the Maharashtra Agricultural Lands  (Ceiling  on
           Holdings) Act, 1961 (Mah. XXVII of 1061), for the time being  in
           force  or  any  building  or  structure  standing   thereon   or
           appurtenant thereto.

           (3) All private forests vested in the State Government under sub-
           section (1) shall be deemed to be reserved  forests  within  the
           meaning of the Forest Act.”













           “Section 5 - Power to take over possession of private forests

           Where any private forest stands acquired and vested in the State
           Government  under  the  provisions  of  this  Act,  the   person
           authorised by the State Government or by the Collector  in  this
           behalf, shall enter into and take over possession  thereof,  and
           if any person resists the taking over  of  such  possession,  he
           shall without prejudice to any other action to which he  may  be
           liable, be liable to be removed by the use or such force as  may
           be necessary.”

           “Section 6 - Settlement of disputes

           Where any question arises as to whether or not any forest  is  a
           private forest, or whether or not any private forest or  portion
           thereof has vested in the State Government or whether or not any
           dwelling house constructed in a  forest  stands  acquired  under
           this Act, the Collector  shall  decide  the  question,  and  the
           decision of the Collector shall, subject to the decision of  the
           Tribunal in appeal which may be preferred to the Tribunal within
           sixty days from the date of the decision of  the  Collector,  or
           the order of the State Government under section 18, be final.”



22.   Finally, it may be  mentioned  that  by  Section  24  of  the  Private
Forests Act, Sections 34A, 35 and 36A of the Forest Act were repealed.[11]

 23.  The narrative of the events discloses that Notice No. WT/53 after  its
publication in the Gazette was not acted upon either  under  the  provisions
of the Forest Act as amended from time to time or under the Private  Forests
Act.  Admittedly, no attempt was made by the State to take  over  possession
of the disputed land at any point of  time.   On  the  contrary  permissions
were granted to Godrej from time to time for the construction  of  buildings
on the disputed land, which permissions were availed of by  Godrej  for  the
benefit of thousands of its employees.
Judgment in the case of Waghmare
24.   The constitutional validity of  the  Private  Forests  Act  (including
Section 3 thereof) was challenged in the Bombay High Court on the ground  of
legislative competence of the State Legislature to enact the  statute.  This
issue was referred to a Bench of five Judges and the decision  of  the  High
Court is reported as Janu Chandra  Waghmare  v.  State  of  Maharashtra.[12]
During the course of hearing, the Bench also considered as to  “what  is  it
that the State  legislature  has  intended  to  include  in  the  expression
‘forest  produce’  for  the  purpose  of  vesting  the  same  in  the  State
Government under -
Section 3 of the Act.” While answering this question, the  High  Court  felt
it necessary to “consider the true effect of the artificial  definitions  of
the two expressions ‘forest’ and ‘private forest’ given  in  Section  2(c-i)
and Section 2(f) read with Section 3 of the impugned Act”.
25.   In doing so, the High Court held  that  a  land  owner  who  had  been
issued a notice under Section 35(3) of the Forest Act (but  was  not  heard)
has an opportunity to contend that his or her land is not a ‘forest’  within
the meaning of Section 2(c-i) of the Private Forests Act and that  the  land
does not vest automatically in the State by  virtue  of  Section  3  of  the
Private Forests Act. This  position  was  not  contested,  but  conceded  by
learned counsel appearing for the State of Maharashtra in the High Court.
26.   The High Court held in paragraph 30 of the Report as follows:-
           “It is thus clear that Sub-clauses (i), (ii) and (iv) of Section
           2(f) deal with declared, adjudicated or  admitted  instances  of
           forests. Sub-clause (iii) of Section  2(f)  no  doubt  seeks  to
           cover land in respect of which merely a notice has  been  issued
           to the owner of a private forest under  Section  35(3)  and  his
           objections may have remained unheard till 30-8-1975  as  Section
           35 has  stood  repealed  on  the  coming  into  force   of   the
           Acquisition Act. Here also, as in the case  of  owners  of  land
           falling  under  Sub-clause  (iii)   of   Section   2(c-i),   his
           objections, if any, including his objection that his land cannot
           be styled as forest at all can be heard and  disposed  of  under
           Section 6 of the Acquisition Act, and this position was conceded
           by Counsel appearing for the State  of  Maharashtra.  Sub-clause
           (v)  includes  within  the  definition  of  private  forest  the
           interest of another person who along with Government is  jointly
           interested in a forest, while Sub-clause (vi) includes sites  of
           dwelling houses constructed in such forest which are  considered
           to be necessary for the convenient enjoyment or  use  of  forest
           and lands appurtenant thereto.”

      It was further held in paragraph 32 of the Report as follows:


           “In the first place, the scheme [of  the  Private  Forests  Act]
           clearly shows that under Section 3 all private forests  vest  in
           the State Government and since both the expressions  -  'forest'
           as well as 'private forest' - have been defined in the Act  what
           vests in the State Government is 'private forest' as per Section
           2(f) and in order to be 'private forest' under Section  2(f)  it
           must be 'forest' under Section 2(c-i) in the first instance  and
           read in this manner the expression  'all  the  private  forests'
           occurring in Section 3 will include 'forest produce.' It is  not
           possible to accept the argument that the word 'forest' occurring
           in the composite expression 'private forest' should not be given
           the meaning which has  been  assigned  to  it  in  Section  2(c-
           i)…………….. Definitions in  Interpretation  Clauses  may  have  no
           context (though this may not be true  of  all  definitions)  but
           therefore, all the more reason, why the  word  'forest'  in  the
           composite expression 'forest-produce' in Section 2(f) should  be
           given the meaning assigned to it in Section 2(c-i). Moreover, as
           stated earlier, the scheme itself suggests that  what  vests  in
           the State under Section 3 are  private  forests  as  defined  by
           Section 2(f) but such private forests must in the first instance
           be 'forests' as defined by  Section  2(c-i)  and  read  in  that
           manner the forest produce would vest  in  the  State  Government
           along with the private forest under Section 3 of the Act.”


27.   The view of  the  High  Court  has  been  accepted  by  the  State  of
Maharashtra and has not been challenged and has now attained finality.
28.   It is important to note that the High Court was  not  concerned  with,
nor did it advert to the right of a land  owner  to  object  to  the  notice
under Section 35(3) of the Forest Act before the Private  Forests  Act  came
into force on the ground that his land was not a forest  as  defined  in  or
notified under Section 34A of the Forest  Act.   This  will  be  dealt  with
below.
Judgment in the case of Chintamani Velkar
29.   The right to file objections to a notice under Section  35(3)  of  the
Forest Act came up for consideration in Chintamani Gajanan Velkar v.   State
of Maharashtra.[13]
In that case, Chintamani  was  issued  a  notice  under
Section 35(3) of the Forest Act on 29th August 1975.  The notice was  served
on him on 12th September 1975.
In the meanwhile, the  Private  Forests  Act
came into force on 30th August 1975.   Chintamani  raised  a  dispute  under
Section 6 of the Private Forests Act (as postulated in Waghmare)  contending
that his land was not a forest and did not vest in the  State  in  terms  of
Section 3 of the Private Forests Act.
30.   The only question that arose for  consideration  was  whether  or  not
Chintamani’s land was a forest within the meaning of that  word  as  defined
in Section 2(c-i) of the Private Forests Act.  That issue had  already  been
decided, as a matter of fact, by the Maharashtra  Revenue  Tribunal  against
Chintamani and it was held that his land was a forest. The matter  ought  to
have rested there.  However,  this  Court  went  into  a  further  question,
namely, whether the mere issuance of a notice under  Section  35(3)  of  the
Forest Act per se attracted Section 2(f)(iii) of the  Private  Forests  Act.
This Court noticed (in paragraph 18  of  the  Report)  that  where  a  final
notification is issued under Section 35(1)  of  the  Forest  Act  (obviously
after hearing the objections of  the  land  owner  in  compliance  with  the
requirements of Section 35(3) thereof), the entire land of  the  land  owner
would automatically vest in the State on the appointed date, that  is,  30th
August 1975 when the Private Forests Act came into force. In  such  a  case,
the land owner would, ex hypothesi have an opportunity  of  showing  in  the
objections to the Section 35(3) notice that the land is not  a  ‘forest’  as
defined under Section 34A of the Forest Act.  If the  land  owner  succeeded
in so showing, then clearly a final notification under Section 35(1) of  the
Forest Act could not be issued. But if the land owner did not succeed in  so
showing, only then could a final notification under  Section  35(1)  of  the
Forest Act be issued. It must be recalled, at this  stage,  that  the  words
“or land” under Section 35(3) of the Forest Act  had  been  deleted  by  the
Indian Forest (Bombay Amendment) Act, 1948 being Bombay Act  No.62  of  1948
and, additionally therefore, such  an  objection  could  validly  have  been
raised.
31.   Consequently, the situation that presented itself  in  Chintamani  was
that though a notice was issued to the land owner  under  Section  35(3)  of
the Forest Act before 30th August 1975, it could not be decided before  that
date when the Private Forests Act  came  into  force.  (Such  a  notice  was
referred to as a ‘pipeline notice’  by  Mr.  F.S.  Nariman).   Clearly,  the
recipient of a pipeline notice would be entitled to the benefit of  Waghmare
but this seems  to  have  been  overlooked  by  this  Court  in  Chintamani.
However, to mitigate the hardship to a pipeline noticee  who  is  not  given
the benefit of Waghmare this Court read Section  2(f)(iii)  of  the  Private
Forests Act and observed (perhaps as a sop  to  the  land  owner)  that  the
“Maharashtra Legislature thought that the entire  property  covered  by  the
notice in the State need not vest but it excluded  2  hectares  out  of  the
forest land held by the landholder.  That  was  the  consideration  for  not
allowing the benefit of an inquiry under Section 35(3) and for not  allowing
the notification to be issued under Section 35(1) of the 1927 Act”.
32.   It is in this background that this Court narrowly construed the  words
“a notice has been issued under sub-section (3) of section 35 of the  Forest
Act” occurring in Section 2(f)(iii)  of  the  Private  Forests  Act  as  not
requiring “service of such notice before 30-8-1975, nor for an  inquiry  nor
for a notification under Section 35(1).”[14]
33.   In a sense, therefore,  not  only  is  there  a  difference  of  views
between Waghmare and Chintamani but Chintamani  has  gone  much  further  in
taking away the right of a landholder.
Proceedings in the High Court
34.   On or about 24th May  2006,  Godrej  received  six  stop-work  notices
issued  by  the  concerned  Assistant  Engineer  of  the  Bombay   Municipal
Corporation stating that the Deputy Conservator  of  Forests,  Thane  Forest
Division, by a letter dated 8th May 2006  had  informed  that  the  disputed
land was “affected” by the reservation of a private forest and therefore  no
construction could be carried out therein  without  the  permission  of  the
Central Government under the Forest (Conservation) Act, 1980.
35.   On enquiries made by Godrej subsequent to the  receipt  of  the  stop-
work notices, it came to be known that the Bombay High  Court  had  given  a
direction on 22nd June 2005 in PIL No. 17/2002  (Bombay  Environment  Action
Group v. State of Maharashtra) on the claim of the petitioner  therein  that
in the entire State of Maharashtra the land records were  incomplete  and  a
large number of problems were encountered because of not updating  the  land
records  which  in  any  event  is  also  an  obligation   on   the   State.
Accordingly, the High Court gave a direction granting time to the  State  of
Maharashtra up to 31st May 2006 to complete the entire land records  in  the
State and further directed that quarterly reports regarding the progress  of
the work be filed before the Registrar General of the High Court.
36.   Godrej learnt that this triggered an ex parte mutation of the  revenue
records by the State to show that the disputed land was  ‘affected’  by  the
provisions of the Private Forest Act. Godrej also  learnt  that  the  Notice
No. WT/53 (referred to above) had been published in  the  Bombay  Government
Gazette of 6th September 1956, but not served on it.
37.   On these broad facts, Godrej filed Writ Petition No. 2196 of  2006  in
the Bombay High Court praying, inter alia, for a declaration that the  lands
owned by it in village Vikhroli are not forest land; that the  letter  dated
8th May 2006 issued by the Deputy Conservator of Forest as well as six stop-
work notices dated 24th May 2006 be declared as illegal, ab initio null  and
void and that the mutation in the revenue records be also declared  illegal.

38.   During the proceedings in the High Court it  came  to  be  known  that
about 170 notices similar to notice No. WT/53 had  been  issued  to  various
parties in 1956-57, including to the Bhabha Atomic Energy  Complex  and  the
Employees State Insurance Scheme Hospital.  However,  the  lands  of  Bhabha
Atomic Energy Complex and the  Employees  State  Insurance  Scheme  Hospital
were not touched by the State.
39.   The writ petition (along with several other  similar  writ  petitions)
was contested by the State and it was submitted inter alia that in  view  of
the judgment of this Court in Chintamani, the disputed land stood vested  in
the State in terms of  Section  3  of  the  Private  Forests  Act.  
By  the
impugned order dated 24th March 2008, the High Court dismissed all the  writ
petitions. Among other things, it was held in paragraph 152 of the  impugned
judgment:
           “In the light of the authoritative pronouncement in Chintamani's
           case we see no substance in the argument that  the  construction
           activities on the land being in accordance with  the  sanctioned
           plans and  approvals  so  also  the  lands  being  part  of  the
           development plan and affected by Urban Land Ceiling Act, State's
           action impugned in these petitions is without  any  jurisdiction
           or authority in law. All arguments with regard to  the  user  of
           the  land  today  has  no  legal  basis.  User  today  is  after
           development or continuing development. Once  development  is  on
           private forest, then, the same could not have been permitted  or
           carried out. Mere omission or inaction of the  State  Government
           cannot  be  the  basis  for  accepting  the  arguments  of   the
           petitioners.”

40.   The High Court rejected  the  contention  that  “mere  issuance  of  a
notice under Section 35(3) without any notification being published  in  the
official gazette within the meaning of Section 35(1)  would  not  mean  that
the land is excluded from the purview of the  Private  Forest  (Acquisition)
Act enacted by the Maharashtra Government.”[15]
      It was also held that:
           “Once the State Government issues  such  notice  [under  Section
           35(3) of the Forest Act], then, the intention is  apparent.  The
           intention is to regulate  and  prohibit  certain  activities  in
           forest. Merely because such a notice is issued by it in 1957 and
           1958 but it did not take necessary steps in furtherance thereof,
           does not mean that the notices have been abandoned as  contended
           by the petitioners. There  is  no  concept  of  "abandonment  or
           disuse" in such case. Apart from the fact  that  these  concepts
           could not be imported in a modern statute, we are  of  the  view
           that they cannot be  imported  and  read  into  statute  of  the
           present nature. Statutes which  are  meant  for  protecting  and
           preserving forests and achieve larger public interest, cannot be
           construed narrowly as contended. The interpretation,  therefore,
           if at all there is any ambiguity or scope for  construction  has
           to be wider and sub-serving this public  interest  so  also  the
           intent and object in enacting them. The  reason  for  the  State
           Government not being able to pursue the measures for  preserving
           and protecting the forest wealth is obvious.”[16]

      Further, it was held that:

           “The Development Plan proposal and designation so also the  user
           cannot conflict with the character of  the  land  as  a  private
           forest. To accept the arguments of the  petitioners  would  mean
           that despite vesting the private  forest  continues  as  a  land
           covered by the development plan and being within  the  municipal
           limits it loses its character as a  private  forest.  A  private
           forest is a forest and upon its vesting in the State  Government
           by virtue of the Private Forest (Acquisition) Act  would  remain
           as such. Therefore, we see no conflict because of any change  in
           the situation. Vesting was complete on  30th  August,  1975.  On
           30th August, 1975 the lands with regard to which the notice  was
           issued under Section 35(3), being a private forest vested in the
           State, it was a private forest always and, therefore,  there  is
           no question of the development  plan  or  any  proposal  therein
           superimposing itself on its status.”[17]


 41.  Feeling aggrieved by the dismissal of the writ petitions in the Bombay
High Court, Godrej and other aggrieved writ petitioners preferred  petitions
for special leave to appeal in this Court.
Proceedings in this Court
42.   During the pendency of these appeals, the State filed I.A. Nos.  2352-
2353 of 2008 in W.P. No. 202 of 1995 [T.N.  Godavarman  v.  Union  of  India
(Forest Bench matters)] in which it was prayed, inter alia, as follows:
              1) The lands coming under the provisions  of  the  Maharashtra
                 Private Forests (Acquisition) Act 1975 which  were  put  to
                 non forestry use prior  to  25th  October  1980  [when  the
                 Forest (Conservation) Act,1980 came into force] by  way  of
                 having  been  awarded  Approval  of   Plans,   Commencement
                 Certificates, IODS or Non Agriculture  Permissions  by  the
                 Competent Authorities be treated deleted from the  category
                 of forests and the non forestry activity be allowed on such
                 lands without charging CA, NPV  or  equivalent  non  forest
                 land or any charges whatsoever.


              2) -
              3) The Collectors of all the districts  be  directed  to  pass
                 appropriate  orders  under  section  6  or   22A   of   the
                 Maharashtra Private Forests (Acquisition) Act, 1975  either
                 on an application or suo motu as provided for it under  the
                 Act,  for  all  the  pieces  of  lands  coming  under   the
                 provisions of the Act under their  jurisdiction  within  30
                 days.

              4) For the lands restored under the Act on  which  residential
                 complexes  have  come  up/are   coming   up   wherein   Non
                 Agriculture Permissions (N.A.)  and  buildings  were  fully
                 constructed  and  completion  certificate  and   occupation
                 certificate were issued by the Competent Authorities  after
                 25th October, 1980 but before 18th May 2006 when the  “stop
                 construction work” notices were issued, only  afforestation
                 charges be  collected  for  afforesting  equivalent  forest
                 land. Neither  equivalent  non  forest  land  nor  the  Net
                 Present Value be charged to them, as these areas are  their
                 own private lands.”

Significantly, it was stated in the applications as follows:-

           “26. As stated earlier since the records  did  not  reveal  that
           these are acquired Private Forests the erstwhile owners went  on
           selling these lands to several persons who also in turn went  on
           selling them to the strangers without there being any  fault  on
           their part.  Subsequently developers purchased these  lands  and
           after getting requisite permissions from the Planning  Authority
           carried on constructions thereon.   Thereafter  individuals  and
           members of the  public  who  wanted  accommodation  for  housing
           probably invested their lifetime savings  and/or  raising  loans
           entered into transactions of purchasing the flats constructed on
           these lands  without  their  fault.   In  some  of  these  areas
           commercial activities have also come up with due permission from
           the Government authorities.  In such cases, injustice  is  being
           alleged by the subsequent purchasers who claimed to be  bonafide
           purchasers.  This has necessitated the State of  Maharashtra  to
           come  out   with   the   present   application.    Abstract   of
           constructions made on private forest lands  in  Mumbai  Suburban
           and Thane City makes it very clear  that  the  problem  is  more
           severe for the common man.  Errors  were  also  committed  while
           declaring the lands as having been acquired  by  the  Government
           under the Maharashtra Private Forest  (Acquisition)  Act,  1975.
           Some of the lands/properties owned by the Government like Bhabha
           Atomic Energy  complex  and  Employees  State  Insurance  Scheme
           hospital  also  came  to  be  declared  as  acquired  under  the
           Maharashtra Private Forest (Acquisition) Act, 1975.”


 43.  The  Forest  Bench  referred  the  matter  to  the  Central  Empowered
Committee which, in its Report dated 13th July 2009 noted in  paragraphs  25
and 26 as follows:-
           “25. It is thus clear that after  the  issue  of  notices  under
           Section 35(3) or Notification under 35(1) of the  Indian  Forest
           Act, no follow-up action was taken  by  the  State  Govt.   Even
           after the Private Forest Act came into force,  neither  physical
           possession of the land was taken nor were the areas recorded  as
           ‘forest’. A  substantial  part  of  such  area  falls  in  urban
           conglomerations  and  have  been  used  for  various  non-forest
           purpose  including   construction   of   buildings   for   which
           permissions have been granted by the concerned State  Government
           authorities.  Sale/purchase and  resale  have  taken  place  and
           third party interests have been generated.  People are  residing
           for last 30-40 years in hundreds of buildings  constructed  with
           the then valid approvals.  It was only  after  the  order  dated
           26.5.2005 of the Hon’ble Bombay High Court, that these areas are
           now being treated as falling in category of “forest”.   Many  of
           such areas are surrounded all  around  by  other  buildings  and
           within  metropolitan  areas  and  are  no  longer  suitable  for
           afforestation or to be managed as ‘forest’.


           “26. In the above complex background, at this belated stage,  it
           is neither feasible nor  in  public  interest  to  demolish  the
           existing   buildings/structures,    re-locate    the    existing
           occupants/owners and physically convert such area  into  forest.
           The CEC in these circumstances considers  that  the  balance  of
           convenience  lies  in  granting  permission  under  the   Forest
           (Conservation) Act for de-reservation and non-forest use of such
           area  on  a  graded  scale  of  payment   depending   upon   the
           category/sub-category in which such land falls.”


44.   The Central Empowered Committee made certain other recommendations  as
a result of which Godrej paid an amount of Rs.14.7 crores  towards  NPV  and
this has been recorded in the order passed by the Forest Bench in its  order
dated 17th February 2010.  The relevant extract  of  the  order  dated  17th
February 2010 passed by the Forest Bench reads as under:-
           “Pursuant to the report filed by the C.E.C. regards the property
           owned and possessed by the Godrej and Boyce Mfg. Co. Ltd., a sum
           of Rs.14,71,98,590/- was deposited as NPV  and  the  deposit  of
           this amount has been confirmed by the learned counsel  appearing
           for the State.


           We have passed an interim order of status  quo  restraining  the
           petitioners from further construction on the lands and also  not
           to create third party rights.  That interim  order  is  vacated.
           The petitioners are at liberty to go on  with  the  construction
           and complete it.  The direction of not  to  create  third  party
           rights is also vacated. This order is subject to the  order,  if
           any, to be passed by MOEF in this regard and also subject to the
           final outcome of this matter.


           Learned counsel for the petitioner states that he will not claim
           any refund of the amount so deposited. ”


 45.  When the present set of appeals came up for hearing before this  Court
on 9th February 2011, the correctness of Chintamani was doubted  by  learned
counsel on the question whether the word “issued” as  occurring  in  Section
2(f)(iii) of the Private Forest Act in the context of “any land  in  respect
of which a notice has been issued under sub-section (3)  of  section  35  of
the Forest Act” should be interpreted literally  or  whether  it  postulates
service of notice on the landholder. It is under  these  circumstances  that
these appeals were listed before us.
The primary question
46.   The initial question is whether the disputed land is at all  a  forest
within the meaning of Section 2(c-i) of the Private Forests Act.
47.   It is quite clear from a reading  of  Waghmare  that  the  “means  and
includes” definition of forest in Section 2(c-i) of the Private Forests  Act
does not detract  or  take  away  from  the  primary  meaning  of  the  word
‘forest’.  We are in agreement with this view.
48.   In Jagir Singh v. State of Bihar[18] the interpretation  of  the  word
“owner” in Section 2(d) of  the  Bihar  Taxation  on  Passengers  and  Goods
(Carried  by  Public  Service  Motor  Vehicles)  Act,  1961  came   up   for
consideration. While interpreting  “owner”  which  ‘means’  and  ‘includes’,
this Court held:
           “The definition of the term “owner” is exhaustive  and  intended
           to extend the meaning of the term by including within its  sweep
           bailee of a public carrier vehicle  or  any  manager  acting  on
           behalf of the owner. The intention of the legislature to  extend
           the meaning of the term by the definition given by  it  will  be
           frustrated if what is intended to be inclusive is interpreted to
           exclude the actual owner.”


49.    The  proposition  was  more  clearly  articulated  in  Black  Diamond
Beverages v. Commercial Tax Officer[19] wherein this  Court  considered  the
use of the words ‘means’ and ‘includes’ in the definition  of  “sale  price”
in Section 2(d) of the W.B. Sales Tax Act, 1954. It was held in paragraph  7
of the Report:
           “The first part of the definition defines  the  meaning  of  the
           word “sale price” and must, in our view, be given its  ordinary,
           popular or natural meaning. The interpretation thereof is in  no
           way controlled or affected by the second part  which  “includes”
           certain other things in the definition. This is  a  well-settled
           principle of construction.”

50.   In coming to this conclusion, this Court referred to  a  passage  from
Craies on Statute Law[20] which in turn referred to  the  following  passage
from Robinson v. Barton-Eccles Local Board[21]:
           “An interpretation clause of this kind is not meant  to  prevent
           the word receiving its  ordinary,  popular,  and  natural  sense
           whenever that would be properly applicable, but  to  enable  the
           word as used in the Act … to be applied to something to which it
           would not ordinarily be applicable.”

51.   In the case of Godrej, the  admitted  position,  as  per  the  consent
decree dated 8th January 1962 is that the disputed  land  was  not  a  waste
land nor was it a forest.
In so far as the other appeals are concerned,  the
disputed lands were built upon, from time to  time,  either  for  industrial
purposes or for commercial purposes or for residential purposes.
Under  the
circumstances, by no stretch of imagination can  it  be  said  that  any  of
these disputed lands are ‘forest’ within the primary meaning of  that  word,
or even within the extended meaning given in Section 2(c-i) of  the  Private
Forests Act.
52.   The next question is whether the notice said to have  been  issued  to
Godrej being Notice No. WT/53 can  be  described  as  a  ‘pipeline  notice’.
Again, the answer must be in the  negative  in  as  much  as  it  cannot  be
reasonably  said  that  the  pipeline  extends  from  1956-57  up  to  1975.
Assuming that a notice issued in 1956-57 is a pipeline notice even in  1975,
the question before us  would,  nevertheless,  relate  to  the  meaning  and
impact of “issued” of Section 2(f)(iii) of  the  Private  Forests  Act  read
with Section 35 of the Forest Act.  This is really the meat of  the  matter.


53.   Undoubtedly, the first rule of interpretation is that the words  in  a
statute must be interpreted literally. But at the same time if  the  context
in which a word is used and the provisions of a statute  inexorably  suggest
a subtext other than literal, then the context becomes important.
54.   In R.L. Arora v. State of U.P.[22] it was  observed  that  “a  literal
interpretation is not always the only interpretation of  a  provision  in  a
statute and the court has to look at the setting  in  which  the  words  are
used and the circumstances in which the law came  to  be  passed  to  decide
whether there is something implicit behind the  words  actually  used  which
would control the literal meaning of the words used in a  provision  of  the
statute.”
      Similarly, in Tata Engg. & Locomotive Co. Ltd. v. State  of  Bihar[23]
it was held:
           “The method suggested for adoption, in cases of doubt as to  the
           meaning of the words used is to explore  the  intention  of  the
           legislature through the  words,  the  context  which  gives  the
           colour,  the  context,  the  subject-matter,  the  effects   and
           consequences or the spirit and reason of the  law.  The  general
           words  and   collocation   or   phrases,   howsoever   wide   or
           comprehensive in their literal sense are  interpreted  from  the
           context and scheme underlying in the text of the Act.”

      Finally, in Joginder Pal v. Naval Kishore Behal[24] it was held:
           “It is true that ordinary rule of construction is to assign  the
           word a meaning which it ordinarily carries. But the  subject  of
           legislation and the context in which a  word  or  expression  is
           employed may require  a  departure  from  the  rule  of  literal
           construction.”


55.   Applying the law laid down by this Court  on  interpretation,  in  the
context of these appeals, we may be missing the wood  for  the  trees  if  a
literal meaning is given  to  the  word  “issued”.  To  avoid  this,  it  is
necessary to also appreciate the scheme of Section  35  of  the  Forest  Act
since that scheme needs to be kept in mind  while  considering  “issued”  in
Section 2(f)(iii) of the Private Forests Act.
 56.  A notice under Section 35(3) of the Forest Act is intended to give  an
opportunity to the owner of a forest  to  show  cause  why,  inter  alia,  a
regulatory or a prohibitory measure be not made in respect of  that  forest.
It is important to note that such a notice pre-supposes the existence  of  a
forest. The owner of the forest is expected  to  file  objections  within  a
reasonable time as specified in the notice and is also given an  opportunity
to  lead  evidence  in  support  of  the  objections.  After   these   basic
requirements are met, the owner of the forest is entitled to  a  hearing  on
the objections. This entire procedure obviously cannot be  followed  by  the
State and the owner of the forest  unless  the  owner  is  served  with  the
notice. Therefore, service of a notice issued under  Section  35(3)  of  the
Forest Act is inherent in the very language used in the  provision  and  the
very purpose of the provision.

57.   Additionally, Section 35(4) of the Forest Act provides that  a  notice
under Section 35(3) of the Forest Act may provide  that  for  a  period  not
exceeding six months (extended to one year in 1961) the owner of the  forest
can be obliged to adhere to one or more of  the  regulatory  or  prohibitory
measures mentioned in Section 35(1) of the Forest Act.  
On  the  failure  of
the owner of the forest to abide by the said measures, he/she is  liable  to
imprisonment for a term upto six months and/or a fine  under  Section  35(7)
of the Forest Act. Surely, given the penal consequence of  non-adherence  to
a Section 35(4) direction in a Section  35(3)  notice,  service  of  such  a
notice must be interpreted to be mandatory. On the  facts  of  the  case  in
Godrej, such a direction was in fact given and Godrej was  directed,  for  a
period of six months, to refrain from the cutting and removal of  trees  and
timber and  the  firing  and  clearing  of  vegetation.  Strictly  speaking,
therefore, despite not being  served  with  Notice  No.  WT/53  and  despite
having no knowledge of it, Godrej was liable to be  punished  under  Section
35(7) of the Forest Act if it cut or removed any tree or timber or fired  or
cleared any vegetation.

58.   This interplay may be looked at from another point  of  view,  namely,
the need to issue a direction under Section 35(4) of the Forest  Act,  which
can be only to prevent damage to or destruction of a forest. If  the  notice
under Section 35(3) of the Forest Act is not served  on  the  owner  of  the
forest, he/she may continue to damage the forest defeating the very  purpose
of the Forest Act. Such an interpretation cannot be given to Section  35  of
the Forest Act nor can  a  limited  interpretation  be  given  to  the  word
“issued” used in the context of Section 35 of  the  Forest  Act  in  Section
2(f)(iii) of the Private Forests Act.

59.   Finally, Section 35(5) of the Forest Act mandates not only service  of
a notice issued under that provision “in the manner provided in the Code  of
Civil Procedure, 1908, for the service of summons” (a  manner  that  we  are
all familiar with) but also its publication “in  the  manner  prescribed  by
rules”. This double pronged receipt and confirmation  of  knowledge  of  the
show cause notice by the owner of a  forest  makes  it  clear  that  Section
35(3) of the Forest Act is not intended to end the  process  with  the  mere
issuance of a notice but it also requires service of a notice on  the  owner
of the forest. The need for ensuring  service  is  clearly  to  protect  the
interests of the owner of the forest who may have valid reasons not only  to
object to the issuance of regulatory or prohibitory directions, but to  also
enable him/her to raise a jurisdictional issue that the land in question  is
actually not a forest. The need for ensuring  service  is  also  to  prevent
damage to or destruction of a forest.

60.  Unfortunately, Chintamani missed these finer  details  because  it  was
perhaps not brought to the notice of this  Court  that  Section  35  of  the
Forest Act as applicable  to  the  State  of  Maharashtra  had  sub-sections
beyond sub-section (3). 
This Court proceeded on the basis of Section  35  of
the Indian Forest Act, 1927  as  it  existed  without  being  aware  of  the
amendments made by the State of  Maharashtra  and  the  erstwhile  State  of
Bombay. This, coupled with the factually incorrect view  that  two  hectares
of forest land[25] were excluded for the benefit of the landholder led  this
Court to give a restrictive meaning to “issue”.

61.   In Chintamani this Court relied on the decision  rendered  in  CIT  v.
Bababhai Pitamberdas (HUF)[26] to conclude that a word has to  be  construed
in the context in which it is used in a statute  and  that,  therefore,  the
decisions rendered in Banarsi Debi v. ITO[27] and CWT v. Kundan  Lal  Behari
Lal[28] to  the  effect  that  “the  word  ‘issue’  has  been  construed  as
amounting to ‘service’ are not relevant for interpreting the  word  ‘issued’
used in Section 2(f) [of the Private Forests Act].” It is true, as  observed
above, that a word has to be construed in the context in which  it  is  used
in a statute. By making a reference in  Section  2(f)(iii)  of  the  Private
Forests Act to ‘issue’ in Section 35 of the Forest Act,  it  is  clear  that
the word is dressed in borrowed robes. Once that is appreciated (and it  was
unfortunately  overlooked  in  Chintamani)  then  it  is  quite  clear  that
‘issued’ in Section 2(f)(iii)  of  the  Private  Forests  Act  must  include
service of the show cause notice as postulated in Section 35 of  the  Forest
Act.

62.   We have no option, under these circumstances,  but  to  hold  that  to
this extent, Chintamani was incorrectly decided and it is overruled to  this
extent.
We may add that in Chintamani the land in  question  was  factually
held to be a private forest and therefore the subsequent discussion was  not
at all necessary.

63.   Assuming that the word ‘issued’ as occurring in Section  2(f)(iii)  of
the Private Forests Act must be literally and strictly construed, can it  be
seriously argued that it also has reference to a show  cause  notice  issued
under Section 35(3) of the Forest Act at any given time (say in 1927  or  in
1957)? Or would it be more reasonable to hold that it  has  reference  to  a
show cause notice issued in somewhat closer proximity  to  the  coming  into
force of the Private Forests Act, or a  ‘pipeline  notice’  as  Mr.  Nariman
puts it?

64.   In the absence of any time period having been specified  for  deciding
a show cause notice issued under Section 35 of the Forest Act,  it  must  be
presumed that it must be decided within a reasonable time.  Quite  recently,
in Ramlila Maidan Incident, In re[29] it was held: “It is a settled rule  of
law that wherever provision of a statute does not  provide  for  a  specific
time, the same has to be done within a  reasonable  time.  Again  reasonable
time cannot have a fixed connotation. It must  depend  upon  the  facts  and
circumstances of a given case.”

65.   Similarly, in Mansaram v. S.P. Pathak[30] it was held: “But  when  the
power is conferred to effectuate a purpose, it has  to  be  exercised  in  a
reasonable manner. Exercise of power in  a  reasonable  manner  inheres  the
concept of its exercise within a reasonable time.”

      So  also,  in  Santoshkumar  Shivgonda  Patil  v.  Balasaheb   Tukaram
Shevale[31] it was held:
           “It seems to be fairly  settled  that  if  a  statute  does  not
           prescribe the time-limit for exercise of  revisional  power,  it
           does not mean that such power can  be  exercised  at  any  time;
           rather it should be exercised within a reasonable time. It is so
           because the law does not expect a settled thing to be  unsettled
           after a long lapse of  time.  Where  the  legislature  does  not
           provide for any  length  of  time  within  which  the  power  of
           revision is to be  exercised  by  the  authority,  suo  motu  or
           otherwise, it is  plain  that  exercise  of  such  power  within
           reasonable time is inherent therein.”

66.   According to the State, a show cause notice was issued  to  Godrej  in
1957 (and assuming it was served) but no decision  was  taken  thereon  till
1975 that is for about 18 years.  
This  is  an  unusually  long  period  and
undoubtedly much more than a reasonable time had elapsed  for  enabling  the
State to take a decision on the show cause notice.
Therefore, following  the
law laid down by this Court, the show cause notice  must,  for  all  intents
and purposes be treated as having become a dead letter and the seed  planted
by the State yielded nothing.
67.   The entire problem may also be looked at from the perspective  of  the
citizen rather than only from the perspective of the State. 
No  citizen  can
reasonably be told after almost half a century  that  he/she  was  issued  a
show cause notice (which was probably not served)  and  based  on  the  show
cause notice his/her land was declared a private forest about three  decades
ago and that it vests in the State.
Is it  not  the  responsibility  of  the
State to ensure that its laws are implemented with reasonable  dispatch  and
is it not the duty of the State to appreciate that  statute  books  are  not
meant to be thrown at a citizen whenever and wherever some official  decides
to do so?
Basic principles of good governance  must  be  followed  by  every
member of the Executive branch  of  the  State  at  all  times  keeping  the
interests of all citizens in mind as also the larger public interest.
68.   In our opinion, the failure of the State to take any decision  on  the
show cause notice for several decades (assuming it was served on Godrej)  is
indicative of its desire to not act on it.
This opinion is  fortified  by  a
series of events that have taken place  between  1957  and  2006,  beginning
with the consent decree of 8th January 1962 in Suit No. 413 of 1953  whereby
the disputed land was recognized as not being  forest  land;  permission  to
construct a large number of buildings (both residential  and  otherwise)  as
per the Development Plans of 1967 and then of 1991;
exemptions  granted  by
the Competent Authority under the Urban Land (Ceiling and  Regulation)  Act,
1976 leading to Godrej making unhindered but permissible constructions;  and
finally, the absence of any attempt by the State to take possession  of  the
‘forest land’ under Section 5 of the Private Forests Act  for  a  couple  of
decades.
The  subsequent  event  of  the  State  moving  an  application  in
Godavarman virtually denying the  existence  of  a  private  forest  on  the
disputed land also indicates that the State had come to terms  with  reality
and was grudgingly prepared to accept that, even if the  law  permitted,  it
was now too late  to  remedy  the  situation.  This  view  was  emphatically
reiterated by the Central Empowered Committee in its report dated 13th  July
2009.
69.   In its written submissions, the Bombay Environment  Action  Group  has
alleged collusion between Godrej and  other  appellants  and  the  State  of
Maharashtra to defeat the purpose of the Private Forests Act.
It  is  stated
that prior to the said Act coming into force, the Secretary in  the  Revenue
and Forests Department of the State Government had written to the  Collector
on 27th August 1975 enclosing a copy of the  said  Act  and  informing  that
under Section 5 thereof,  the  Range  Forest  Officers  and  the  Divisional
Forest Officers will  be  authorized  to  take  possession  of  the  private
forests from the land owners.
It is stated that the  letter  was  issued  to
enable the Collector to coordinate with the Divisional  Forest  Officers  to
ensure that the large private forests are taken over physically as early  as
-
possible.
Subsequently, by another letter (variously described as dated  3rd
February 1977, 14th February 1977 and 3rd February 1979)  the  Secretary  in
the Revenue and Forests Department advised the Conservator of Forests to  go
slow with the taking over of possession of private forests in Thane,  Kulaba
and Ratnagiri districts.
70.   It is difficult at this distant point of time to conclude, one way  or
the other, whether there was or  was  not  any  collusion  (as  alleged)  or
whether it was simply a case of poor  governance  by  the  State.
The  fact
remains that  possession  of  the  disputed  land  was  not  taken  over  or
attempted to be taken over for decades and the issue was never  raised  when
it should have been.
To raise it now after a lapse of  so  many  decades  is
unfair to Godrej, the other appellants, the institutions, the State and  the
residents of the tenements that have been constructed in the meanwhile.
71.   Given this factual scenario, we agree that Section  2(f)(iii)  of  the
Private Forests Act is not intended to apply  to  notices  that  had  passed
their shelf-life and that  only  ‘pipeline  notices’  issued  in  reasonably
close proximity to the coming into force of the  Private  Forests  Act  were
‘live’ and could be acted upon.
72.   In Hindustan Petroleum Corpn. Ltd. v. Darius  Shapur  Chenai[32]  this
Court dealt with the provisions of the Land Acquisition Act  and  held  that
the legislation being an expropriatory legislation, it ought to be  strictly
construed since it deprives a person of  his/her  land.
In  this  decision,
reliance was placed on State of M.P. v. Vishnu Prasad  Sharma[33]  and  Khub
Chand v. State of Rajasthan.[34] The same rationale would apply  to  Section
2(f)(iii) of the Private Forests Act since it seeks to take  away,  after  a
few decades, private land on the ostensible ground  that  it  is  a  private
forest. Section 2(f)(iii) of the  Private  Forests  Act  must  not  only  be
reasonably construed but also strictly so as not to discomfit a citizen  and
expropriate his/her property.
73.   The fact that the Private Forests Act repealed some  sections  of  the
Forest Act, particularly Sections 34A and 35 thereof  is  also  significant.
Section 2(f)(iii) of the Private Forests Act is in a sense a  saving  clause
for pipeline notices issued under Section 35(3) of the Forest Act but  which
could not, for want of adequate time be either  withdrawn  or  culminate  in
the issuance  of  a  regulatory  or  prohibitory  final  notification  under
Section 35(1) of the Forest Act, depending on the objections raised  by  the
land owner. Looked at from any point  of  view,  it  does  seem  clear  that
Section 2(f)(iii) of the Private  Forests  Act  was  intended  to  apply  to
‘live’ and not stale notices issued under Section 35(3) of the Forest Act.
The second question:
74.   The next question is whether at  all  the  unstated  decision  of  the
State  to  take  over  the  so-called  forest  land  can   be   successfully
implemented. What the decision implies is the  demolition,  amongst  others,
of  a  large  number  of  residential   buildings,   industrial   buildings,
commercial buildings, Bhabha Atomic Energy Complex and the  Employees  State
Insurance Scheme Hospital and compulsorily rendering homeless  thousands  of
families, some of  whom  may  have  invested  considerable  savings  in  the
disputed lands. What it also implies is  demolition  of  the  municipal  and
other public infrastructure works already undertaken and  in  use,  clearing
away the rubble  and  then  planting  trees  and  shrubs  to  ‘restore’  the
‘forest’ to an acceptable condition. According to learned  counsel  for  the
State, this is  easily  achievable.   But  it  is  easier  said  than  done.
According to  the  Bombay  Environment  Action  Group  a  patent,  incurable
illegality has been committed  and  the  natural  consequences  (demolition)
must follow.  Reliance was placed, inter  alia,  on  K.  Ramadas  Shenoy  v.
Chief Officer[35], M.I. Builders v. Radhey  Shyam  Sahu[36],  Pleasant  Stay
Hotel v. Palani Hills Conservation Council[37] and  Pratibha  Coop.  Housing
Society Ltd. v. State of Maharashtra[38]  to suggest that  no  party  should
be allowed to take the benefit or advantage of their own wrong and a  patent
illegality cannot be cured.
75.   The broad principle laid down by  this  Court  is  not  in  doubt.  An
unauthorized construction, unless compoundable in law,  must  be  razed.  In
question are the circumstances leading to the application of  the  principle
and the practical application of the principle. More  often  than  not,  the
municipal authorities and builders conspiratorially join hands in  violating
the law but the victim is an innocent purchaser or  investor  who  pays  for
the maladministration. In such a case, how is the victim to  be  compensated
or is he or she expected to be the only  loser?  If  the  victim  is  to  be
compensated, who will do so? These issues have not  been  discussed  in  the
decisions cited by the Bombay Environment Action Group.
76.   In so far as the practical application of the principle is  concerned,
in Shenoy permission was granted to  convert  a  Kalyana  Mantap-cum-Lecture
Hall into a cinema  hall.  A  reading  of  the  decision  suggests  that  no
construction was made and it is not clear whether  any  money  was  actually
spent on the project.  The question  of  compensation,  therefore,  did  not
arise.
77.    M.I. Builders was an extreme case in  which  partial  demolition  was
ordered since the agreement between the Lucknow  Nagar  Mahapalika  and  the
builder was not only unreasonable for  the  Mahapalika,  but  atrocious.  In
paragraph 59 of the Report, this Court said,
           “The agreement defies logic. It is outrageous.  It  crosses  all
           limits of rationality. The Mahapalika has certainly acted  in  a
           fatuous manner in entering into such an agreement.”

      It was further held in paragraph 71 of the Report that,

           “The  agreement  smacks   of   arbitrariness,   unfairness   and
           favouritism. The agreement was opposed to public policy. It  was
           not in public interest. The whole process of law  was  subverted
           to benefit the builder.”


 78.  Pleasant Stay Hotel was a case of deliberately flouting the law.   The
Hotel was granted sanction for the construction of two  floors  but  despite
the rejection of its revised plan,  it  went  ahead  and  constructed  seven
floors. This Court noted that, therefore, five floors had  been  constructed
illegally and unauthorisedly. Under  these  circumstances,  and  subject  to
certain clarifications, the demolition order passed by the  High  Court  was
upheld.  Payment of compensation in a case  of  knowingly  and  deliberately
flouting the law does not arise.
 79.  In Pratibha the eight unauthorized floors were  constructed  in  clear
and flagrant violation and disregard of the FSI. The  demolition  order  had
already  attained  finality  in  this  Court  and  thereafter  six  of   the
unauthorized floors had  been  demolished  and  the  seventh  was  partially
demolished. This Court found no justification to -
 interfere with the demolitions.  
Again, the issue of compensation does not
arise in such a situation.

80.   The application of the principle laid down by this  Court,  therefore,
depends on the independent facts found in a case.
The remedy  of  demolition
cannot be applied per se with a broad brush to all cases.  
The  State  also
seems to have realized this and that is perhaps the reason why it moved  the
application that it did in Godavarman.

81.   Looking at the issue from point of view of the citizen  and  not  only
from the point of view of the State or a well  meaning  pressure  group,  it
does appear that even though the basic principle is that  the  buyer  should
beware and therefore if  the  appellants  and  purchasers  of  tenements  or
commercial  establishments  from  the   appellants   ought   to   bear   the
consequences of unauthorized construction,  the  well-settled  principle  of
caveat emptor would  be  applicable  in  normal  circumstances  and  not  in
extraordinary circumstances as these appeals  present,  when  a  citizen  is
effectively led up the  garden  path   for  several  decades  by  the  State
itself.  
The present appeals do not relate to a stray or a few instances of  unauthorized
constructions and, therefore, fall in a class of their own. 
In a  case  such
as the present, if  a  citizen  cannot  trust  the  State  which  has  given statutory permissions and provided municipal facilities, whom should  he  or she trust?

82.   Assuming the disputed land was a private forest,  the  State  remained
completely inactive when construction was going on over acres and  acres  of
land and of a very large number of buildings thereon and for a few  decades.
The State permitted the construction through the development  plans  and  by
granting exemption under the Urban Land (Ceiling and Regulation)  Act,  1976
and providing necessary  infrastructure  such  as   roads   and   sanitation
on  the disputed land and the surrounding area.  When  such  a  large  scale
activity involving the State is being carried  on  over  vast  stretches  of
land exceeding a hundred acres, it is natural for a  reasonable  citizen  to
assume that whatever actions are being taken  are  in  accordance  with  law
otherwise the State would certainly step in to prevent such  a  massive  and
prolonged breach of the law.  The silence of the State in  all  the  appeals
before us led the appellants and a large number of citizens to believe  that
there was no patent illegality in the constructions  on  the  disputed  land
nor was there any legal risk in  investing  on  the  disputed  land.   Under
these circumstances, for the State or the Bombay  Environment  Action  Group
to contend  that  only  the  citizen  must  bear  the  consequences  of  the
unauthorized construction may  not  be  appropriate.
 It  is  the  complete
inaction of the State, rather  its  active  consent  that  has  resulted  in
several citizens being placed in a precarious position where  they  are  now
told that their investment is actually in unauthorized  constructions  which
are liable to be demolished any time even after several  decades.  
There  is
no reason why these citizens should be the only victims of such a  fate  and
the State be held not responsible for this state of affairs;  
nor  is  there
any reason why under such circumstances this Court should not  come  to  the
aid of victims of the  culpable  failure  of  the  State  to  implement  and
enforce the law for several decades.

83.   In none of these cases is there  an  allegation  that  the  State  has
acted arbitrarily or irrationally so as to voluntarily benefit  any  of  the
appellants.  On  the  contrary,  the  facts  show  that the appellants
followed the due legal process in making the  constructions  that  they  did
and all that can be said of the State is that its Rip Van Winkleism  enabled
the appellants to obtain valid permissions from  various  authorities,  from
time to time, to make constructions over a  long  duration.  The  appellants
and individual citizens cannot be faulted or punished for that.
84.    These  appeals  raise  larger  issues  of  good  administration   and
governance and the State has, regrettably, come out in poor  light  in  this
regard.  It is not necessary for us to say  anything  more  on  the  subject
except to conclude that even if the State  were  to  succeed  on  the  legal
issues before us, there is no way, on the facts and circumstances  of  these
appeals, that it can reasonably put the clock back and ensure that  none  of
the  persons  concerned  in  these  appeals  is  prejudiced  in  any  manner
whatsoever.


Conclusion:
85.   Accordingly, for the reasons given, all these appeals are allowed  and
the impugned judgment and order of the Bombay High Court  is  set  aside  in
all of them and the notices impugned in  the  writ  petitions  in  the  High
Court are quashed.

Orders in Interlocutory Applications

Civil Appeals arising out of SLP (C) Nos.25747/2010 and 25748/2010

86.   Delay condoned.

SLP (C) No.34691/2011

87.   Permission to file the special leave petition  is  declined.  However,
the petitioner is at liberty to take  such  appropriate  action  as  is  now
permissible under the law.
Civil Appeals arising out of S.L.P. (C) Nos. 10677 of 2008, 10760  of  2008,
11509 of 2008 and 11640 of 2008

88.   Applications for impleadment/intervention stand allowed.

Civil Appeals arising out of S.L.P. (C) Nos. 10760 of 2008   and   11509  of
2008

89.   Applications for modification  of  the order dated 5th May, 2008





in these appeals and the applications for directions in  all  other  appeals
are disposed of in terms of the judgment pronounced.



                                                           ...….……………………..J.
                                                (R.M.Lodha)


                                                            ..….……………………..J.
                                                   (Madan B. Lokur)




                                                          ......……………………..J.
                                                    (Kurian Joseph)
New Delhi;
January 30, 2014









-----------------------
[1]

      [2] Section 4 - Waste lands, etc.. to vest in Government
      (a) All waste lands in any estate which under the terms  of  the  kowl
are not the property of the estate-holder,
      (b) all waste lands in any estate which under the terms  of  the  kowl
are the property of the estate-holder but  have  not  been  appropriated  or
brought under cultivation before the 14th August 1951, and
      (c) all other kinds of property referred to in Section 37 of the  Code
situate in an estate which is not the  property  of  any  individual  or  an
aggregate of persons legally capable of  holding  property  other  than  the
estate-holder and except  in  so  far  as  any  rights  of  persons  may  be
established in or over the same and except as may be otherwise  provided  by
any law for the time being in force, together with all  rights  in  or  over
the same or appertaining thereto,
      and are hereby declared to be the property of the State and  it  shall
be lawful to dispose of and sell the same by the  authority  in  the  manner
and for the purposes prescribed in Section 37 or 38  of  the  Code,  as  the
case may be.



[3]

      [4] Changes brought about by the Government of  India  (Adaptation  of
Indian Laws) Order, 1937 and the Adaptation of Laws  Order,  1950  have  not
been incorporated in the narration of facts.


[5]

      [6] 34A. Interpretation.- For the purposes of this Chapter 'forest'
  includes any land containing trees and shrubs, pasture, lands and any
  other land whatsoever which the Provincial Government may, by
  notification in the Official Gazette, declare to be a forest.




[7]

      [8] Section 35 - Protection of forests for special purposes

      (1) The Provincial Government may, by notification in the Official
  Gazette,-

      (i) regulate or prohibit in any forest -

      (a) the breaking up or clearing of the land for cultivation;

      (b) the pasturing of cattle;

      (c) the firing or clearing of the vegetation;

      (d) the girdling, tapping or burning of any tree or the stripping off
  the bark or leaves from any tree;

      (e) the lopping and pollarding of trees;

      (f) the cutting, sawing, conversion and removal of trees and timber;
  or

      (g) the quarrying of stone or the burning of lime or charcoal or the
  collection or removal of any forest produce or its subjection to any
  manufacturing process;

      (ii) regulate in any forest the regeneration of forests and their
  protection from fire;

      when such regulation or prohibition appears necessary for any of the
  following purposes :-

      (a) for the conservation of trees and forests;

      (b) for the preservation and improvement of soil or the reclamation
  of saline or water-logged land, the prevention of land-slips or of the
  formation of ravines and torrents, or the protection of land against
  erosion, or the deposit thereon of sand, stones or gravel;

      (c) for the improvement of grazing;

      (d) for the maintenance of a water supply in springs, rivers and
  tanks;

      (e) for the maintenance increase and distribution of the supply of
  fodder, leaf manure, timber or fuel;

      (f) for the maintenance of reservoirs or irrigation works and hydro-
  electric works;

      (g) for protection against storms, winds, rolling stones, floods and
  drought;

      (h) for the protection of roads, bridges, railways and other lines of
  communication; and

      (i) for the preservation of the public health.




[9]

      [10] Section 35 - Protection of forests for special purposes

      (2) The State Government may, for any such purpose, construct at its
  own expense, in any forest, such work as it thinks fit.

      (3) No notification shall be made under sub-section (1) nor shall any
  work be begun under sub-section (2), until after the issue of a notice to
  the owner of such forest calling on him to show cause, within a
  reasonable period to be specified in such notice, why such notification
  should not be made or work constructed, as the case may be, and until his
  objections, if any, and any evidence he may produce in support of the
  same, have been heard by an officer duly appointed in that behalf and
  have been considered by the State Government.




[11]

      [12] Section 35 - Protection of forests for special purposes

      (3) No notification shall be made under sub-section (1) nor shall any
  work be begun under sub-section (2), until after the issue by an officer
  authorised by the State Government in that behalf of a notice to the
  owner of such forest calling on him to show cause, within a reasonable
  period to be specified in such notice, why such notification should not
  be made or work constructed, as the case may be, and until his
  objections, if any, and any evidence he may produce in support of the
  same, have been heard by an officer duly appointed in that behalf and
  have been considered by the State Government.





[13]

      [14]Section 35 - Protection of forests for special purposes

      (4) A notice to show cause why a notification under subsection (1)
  should not be made, may require that for any period not exceeding six
  months, or till the date of the making of a notification, whichever is
  earlier, the owner or such forest and all persons who are entitled or
  permitted to do therein any or all of the things specified in clause (i)
  of sub-section (1), whether by reasons of any right, title or interest or
  under any licence or contract or otherwise, shall not, after the date of
  the notice and for the period or until the date aforesaid, as the case
  may be, do any or all the things specified in clause (i) of sub-section
  (1), to the extent specified in the notice.

      (5) A notice issued under sub-section (3) shall be served on the
  owner of such forest in the manner provided in the Code of Civil
  Procedure, 1908, for the service of summons and shall also be published
  in the manner prescribed by rules.

      (6) Any person contravening any requisition made under sub-section
  (4) in a notice to show cause why a notification under sub-section (1)
  should not be made shall, on conviction, be punished with imprisonment
  for a term which may extend to six months or with fine or with both.




[15]

      [16]36-A. Manner of serving notice and order under  section  36.-  The
notice referred to in sub-section (1) of section 36 and the order,  if  any,
made placing a forest under the control of a Forest Officer shall be  served
on the owner of such forest in the manner provided  in  the  Code  of  Civil
Procedure, 1908, for the service of summons.



[17]

      [18] Section 35 - Protection of forests for special purposes

      (4) A notice to show cause why a notification under subsection (1)
  should not be made, may require that for any period not exceeding one
  year, or till the date of the making of a notification, whichever is
  earlier, the owner or such forest and all persons who are entitled or
  permitted to do therein any or all of the things specified in clause (i)
  of sub-section (1), whether by reasons of any right, title or interest or
  under any licence or contract or otherwise, shall not, after the date of
  the notice and for the period or until the date aforesaid, as the case
  may be, do any or all the things specified in clause (i) of sub-section
  (1), to the extent specified in the notice.





[19]

      [20]Section 35 - Protection of forests for special purposes

      (5-A) Where a notice issued under sub-section (3) has been served on
  the owner of a forest in accordance with subsection (5), any person
  acquiring thereafter the right of ownership of that forest shall be bound
  by the notice as if it had been served on him as an owner and he shall
  accordingly comply with the notice, requisition and notification, if any,
  issued under this section.

      (7) Any person contravening any of the provisions of a notification
  issued under sub-section (1) shall, on conviction, be punished with
  imprisonment for a term which may extend to six months, or with fine, or
  with both.




[21]

      [22] Section 24 - Repeal of sections 34A to 37 of Forest Act
      (1) On and from the appointed day, sections 34A,  35,  36,  36A,  36B,
36C and 37 of the Forest Act shall stand repealed.
      (2) Notwithstanding anything contained  in  sub-section  (1),  on  and
from  the  date  of  commencement  of  the   Maharashtra   Private   Forests
(Acquisition) (Amendment) Act, 1978 (Mah. XIV of 1978),  sections  34A,  35,
36, 36A, 36B, 36C and 37 of the Forest Act, shall, in respect of  the  lands
restored under section 22A, be deemed to have been  reenacted  in  the  same
form and be deemed always to have been in force and  applicable  in  respect
of such lands, as if they had not been repealed.



[23]

      [24] AIR 1978 Bombay 119


[25]

      [26] (2000) 3 SCC 143


[27]

      [28] Paragraph 19 of Chintamani


[29]

      [30] Paragraph 123


[31]

      [32] Paragraph 126


[33]

      [34] Paragraph 149


[35]

      [36] (1976) 2 SCC 942


[37]

      [38] (1998) 1 SCC 458


[39]

      [40] 7th Edition 1.214


[41]

      [42] (1883) 8 AC 798


[43]

      [44] (1964) 6 SCR 784


[45]

      [46] (2000) 5 SCC 346


[47]

      [48] (2002) 5 SCC 397


[49]

      [50] The correct factual position is that  Section  2(f)(iii)  of  the
Private Forests Act excluded “an area not exceeding two hectares”.


[51]

      [52] 1993 Supp (3) SCC 530


[53]

      [54] (1964) 7 SCR 539


[55]

      [56] (1975) 4 SCC 844


[57]

      [58] (2012) 5 SCC 1 paragraph 232


[59]

      [60] (1984) 1 SCC 125


[61]

      [62] (2009) 9 SCC 352


[63]

      [64] (2005) 7 SCC 627


[65]

      [66] (1966) 3 SCR 557


[67]

      [68] (1967) 1 SCR 120


[69]

      [70]  (1974) 2 SCC 506


[71]

      [72] (1996) 6 SCC 464


[73]

      [74] (1995) 6 SCC 127


[75]

      [76] (1991) 3 SCC 341




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