Mere issuance of notice under Section 35(3) of Indian Forest Act, 1927 is not sufficient for any land being declared a “private forest”

The Apex Court deals with the issue that whether the mere issuance of a notice under Section 35(3) of the Indian Forest Act, 1927 is sufficient for any land being declared a “private forest” within the meaning of the expression as defined in Section 2(f)(iii) of the Maharashtra Private Forests (Acquisition) Act, 1975. 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.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.



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
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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 30 th July
1948 from Nowroji Pirojsha, successor in interest of Framjee
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Cawasjee Banaji who, in turn, had been given a perpetual
lease/kowl for the land by the Government of Bombay on 7 th 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 1 st
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 14 th August 1951
shall vest in and be the property of the State. 1
1
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,
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8.
According
to
the
State,
the
disputed
land
was
not
appropriated or brought under cultivation before 14 th 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.
(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.
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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 14 th 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
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‘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 7 th 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.
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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
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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 4 th 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
2
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.
3
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.
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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
4
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;
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Forest Act5 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
(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.
5
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.
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were: (i) Amendment to Section 35(3) of
the Forest Act; 6 (ii)
Insertion of sub-sections (4),
6
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.
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(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
7
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.
8
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.
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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 8 th 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)
9
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.
10
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.
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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.
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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
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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;
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(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),
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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.”
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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
11
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.
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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
12
AIR 1978 Bombay 119
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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
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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
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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 12 th
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
13
(2000) 3 SCC 143
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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
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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 30 th 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
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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 8 th
May 2006 had informed that the disputed land was “affected” by
the reservation of a private forest and therefore no construction
14
Paragraph 19 of Chintamani
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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 31 st 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
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published in the Bombay Government Gazette of 6 th 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 8 th 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
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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 24 th 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
15
Paragraph 123
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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
16
Paragraph 126
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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.
17
Paragraph 149
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(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
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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 13 th 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’.
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“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 17 th February
2010. The relevant extract of the order dated 17 th 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.
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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.
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48. In Jagir Singh v. State of Bihar18 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
18
(1976) 2 SCC 942
19
(1998) 1 SCC 458
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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 Law20 which in turn referred to the
following passage from Robinson v. Barton-Eccles Local
Board21:
“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
20
7th Edition 1.214
21
(1883) 8 AC 798
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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.
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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 Bihar23 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.”
22
(1964) 6 SCR 784
23
(2000) 5 SCC 346
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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
24
(2002) 5 SCC 397
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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.
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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 land25 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
25
The correct factual position is that Section 2(f)(iii) of the Private Forests Act excluded
“an area not exceeding two hectares”.
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and that, therefore, the decisions rendered in Banarsi Debi v.
ITO27 and CWT v. Kundan Lal Behari Lal28 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
26
1993 Supp (3) SCC 530
27
(1964) 7 SCR 539
28
(1975) 4 SCC 844
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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
re29 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 Pathak30 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 Shevale31 it was held:
29
(2012) 5 SCC 1 paragraph 232
30
(1984) 1 SCC 125
31
(2009) 9 SCC 352
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“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
Civil Appeal Nos.1102 of 2014
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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 8 th
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
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(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 13 th 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 27 th August 1975
enclosing a copy of the said Act and informing that under Section
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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
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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
Chenai32 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 Sharma33 and Khub
.
Chand v. State of Rajasthan.34 The same rationale would apply
32
(2005) 7 SCC 627
33
(1966) 3 SCR 557
34
(1967) 1 SCR 120
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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
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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 Officer35, M.I. Builders v. Radhey Shyam
Sahu36, Pleasant Stay Hotel v. Palani Hills Conservation
35
(1974) 2 SCC 506
36
(1996) 6 SCC 464
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Council37 and Pratibha Coop. Housing Society Ltd. v. State
of Maharashtra38 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.
37
(1995) 6 SCC 127
38
(1991) 3 SCC 341
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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
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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
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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
establishments
purchasers
from
the
of
tenements
appellants
ought
or
to
commercial
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
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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
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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.
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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 5 th May,
2008
in these appeals and the applications for directions in all other
appeals are disposed of in terms of the judgment pronounced.
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.................................J.
(R.M.Lodha)
................................J.
(Madan B. Lokur)
................................J.
(Kurian Joseph)
New Delhi;
January 30, 2014
Civil Appeal Nos.1102 of 2014
(Arising out of SLP (C) No.10677 of 2008 etc.)