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
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
