Case: Maharashtra Land Development Corporation Vs. State Of Maharashtra

4. The gamut of events that led to the passing of the impugned judgment and order of the High Court may be elaborated here. The land in question was part of an original Survey No. 345 in village Dahisar, Maharashtra, measuring about 650 acres. At all relevant times, it was shown as "forest land" in the Revenue records. In or about 1947, out of 650 acres, around 365 acres was acquired for the purpose of creating a National Park at Borivli. Original Survey No. 345 was subsequently divided into three survey numbers, being Survey Nos.C. The land which was acquired was Survey No.From the remaining land, land admeasuring about 75 acres was given Survey No.It is the case of the State of Maharashtra that village Dahisar wasvillage. The whole land of Survey No. 345 of village Dahisar was originally owned byof the area by name Haji Ali Kasam Agboatwala, who expired in the year 1945. Administration Suit No. 3415 of 1957 was filed in the High Court of Judicature at Bombay and the Court Receiver, High Court of Bombay was appointed as the Court Receiver for administration and management of the estate belonging to Agboatwala. In 1962, in pursuance of an order passed by the High Court, the suit land was sold which was purchased by one M/s. Veekaylal Investment Company ("Company" for short) from the Court Receiver. According to the case of the State, even at that juncture the suit land was "forest land". Inproceedings were initiated under the Bombay Salsette Estate Abolition Act, 1951, and vide an order dated 24th December, 1964, the entire land bearing Survey No.was held "forest" and vested in the State under Section 4 of the said Act.6. On 27th August, 1975, a notice was issued by the State Government to the Company under(3) of Section 35 of the Indian Forest Act, 1927 calling upon the Company, the owner of the land, to show cause as to why notification under(1) of Section 35 of the Act should not be issued for regulating and/or prohibiting theactivities on the land. The said notice was issued in respect of total area of land bearing Survey No.admeasuring 209 acres.7. On 30th August, 1975, the Maharashtra Private Forests (Acquisition) Act, 1975 came into force under which allegedly land bearing Survey No.stood acquired and vested in the State Government on the appointed day i.e. August 30, 1975. Accordingly, on October 8, 1975, the SubDivisional Officer, Bombay Suburban District,in exercise of power under Section 5 of the Act, issued notice to the company to hand over possession of the entire land of Survey No.admeasuring 209 acres. The company filed a reply to the said notice contending that the land bearing Survey No.was not "forest", much less a "private forest". The company also called upon the Collector to hear and decide the question as to whether or not the land was "forest" or "private forest" and whether it vested in the State Government under the Act. An inquiry was conducted under Section 6 of the Act by theOfficer, Bombay Suburban District,wherein notices were issued to the company, being the owner of the land as well as to the Court Receiver. Subsequently, by an order dated 12th November, 1975, theOfficer held the land to be "private forest" and also held that the land stood acquired and vested in the State of Maharashtra. The company was, therefore, called upon to hand over possession of the land within 10 days to the Collector of Bombay.8. The company challenged the said order passed by the SubDivisional Officer by filling an appeal before the Maharashtra Revenue Tribunal and the Maharashtra Revenue Tribunal vide its order dated 20th March, 1976 dismissed the appeal, upholding and confirming the order passed byOfficer and observing that the land in question was "forest" within the meaning of Sectionof the Act of 1975. It was also held to be "private forest" falling under Section 2(f) of the Act and as such, stood acquired and vested in the State of Maharashtra. The said order was never challenged in further proceedings by the company and became final, conclusive and binding on the parties.9. It may be stated that when the question of handing over actual and physical possession of land bearing Survey No.came up, it was revealed that out of 209 acres of land of Survey No.land admeasuring about 53 acres was in possession of the Maharashtra Land Development Corporation (the appellant herein), and 50 acres was in possession of K.N. Shaikh (appellant in Civil Appeal No. 2148 of 2004). The Company, in the circumstances, handed over to theon herein objected to handing over possession of the land which was with it. It filed Miscellaneous Petition No. 512 of 1976 in the Bombay High Court challenging the notice issued byOfficer. It also challenged an order dated November 12, 1975 passed byOfficer, holding the land to be "forest" as also judgment and order dated March 20, 1976 passed by Revenue Tribunal confirming the order passed byOfficer. The orders were not challenged by the aggrieved party and they had become final. Theherein challenged the above decisions, contending that they were inter alia in violation of principles of natural justice. The said Miscellaneous Petition No. 512 of 1976, however, came to be settled on the basis of consent terms arrived at between the parties on 19th April, 1984. The consent terms, inter alia, provided that fresh inquiry will be conducted under Section 6 of the Act regarding vesting of the property admeasuring 53 acres in possession of theIt was also ordered that in case the authority comes to the conclusion that the land in possession ofis a "forest" and "private forest" and that it stood acquired and vested in the Government of Maharashtra, thewould hand over possession of the land to theOfficer.11. In pursuance of the consent terms arrived at between the parties, theOfficer conducted fresh inquiry under Section 6 of the Act, after issuing necessary notice to theherein. After hearing theal Officer, by an order dated 23rd April, 1985, held that land admeasuring 53 acres out of Survey No.in possession of thewas neither a forest nor "private forest" and as such did not stand acquired and vested in the Government of Maharashtra in accordance with the provisions of the Act.12. The Respondent State challenged the said order passed by theOfficer by filing an appeal before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal, vide its judgment and order dated 29th September, 1986, allowed the appeal, set aside the order passed by theOfficer and declared that the land admeasuring 53 acres in possession of respondent No. 1 as forest" and "private forest" as defined in the Act. The Tribunal also held that in accordance with the provisions of the Act, the land stood acquired and vested in the State of Maharashtra.13. Aggrieved with the order passed by Maharashtra Revenue Tribunal dated 29th September, 1986, the appellantCorporation filed Writ Petition No. 4726 of 1986 in the Bombay High Court. A Division Bench of the Bombay High Court vide its judgment and order dated 13/17th March, 1992 confirmed the order passed by Maharashtra Revenue Tribunal, holding that the land in possession of respondent No. 1 was "forest" and "private forest", and as such, stood acquired and vested in the State of Maharashtra.14. Thechallenged the order passed by the Maharashtra Revenue Tribunal and confirmed by a Division Bench of the Bombay High Court by carrying the matter to this Court. This Court, by an order dated 27th August, 1992, allowed the appeal, set aside the order passed by this Court as well as by Maharashtra Revenue Tribunal and remanded the matter to the Tribunal, directing it to dispose of the appeal afresh by affording to both the parties an opportunity of adducing additional evidence.15. After remand, the matter was placed before the Maharashtra Revenue Tribunal. It wasand vide its judgment and order dated 4th December, 1992, the Tribunal held that the entire land bearing Survey No.admeasuring 209 acres was neither "forest" nor "private forest" and did not stand acquired and vested in the State of Maharashtra.16. The Department of Forest, being aggrieved by the above decision of Maharashtra Revenue Tribunal, filed Writ Petition No. 2023 of 1994 in the Bombay High Court and the High Court vide its judgment and order dated 11/15/16/17th April, 1996 allowed the petition and quashed and set aside the order passed by Maharashtra Revenue Tribunal concluding that the entire land bearing Survey No.admeasuring 209 acres was "forest" and "private forest" which stood vested in the Government of Maharashtra under the provisions of the Act of 1975.17. The judgment and order of the Bombay High Court was again challenged by theapproaching this Court by way of Special Leave Petition No. 14259 of 1996 and this Court vide its order dated 24th September, 1996, again set aside the order of the High Court and remanded the matter to the Maharashtra Revenue Tribunal by granting liberty to the parties to lead further evidence before the Tribunal and by directing the Tribunal to reach a decision having regard to the material on record as also which might be brought on record by the parties.18. The Maharashtra Revenue Tribunal, in pursuance of the direction issued by the Apex Court, considered the question in the light of the rival contentions and the evidence before it and by an order dated 21st February, 1998, and once again held that the land in question cannot be treated as "forest" or "private forest" under the Act of 1975, and hence no action could be taken under the said Act. The appeal filed by the Respondents came to be dismissed. It is that order passed by the Maharashtra Revenue Tribunal on 21st February, 1998 which was challenged by the respondent in Writ Petition No. 1052 of 1998 before the Bombay High Court.

Reasoning:
34. Despite these averments, we are unable to agree with the contention of theThe definition of a `forest as enunciated in Section 2(ii) of the Act specifically includes "land which is part of a forest or lies within it or was part of a forest or was lying within a forest on the 30th day of August, 1975". It is already established that subsequent to proceedings initiated under the Bombay Salsette Estate Abolition Act, 1951, the entire land bearing Survey No.was held to be a "forest" vide an order dated 24th December, 1964. A bare reading of the provision also indicates that the definition of `forest is an inclusive definition and therefore, it could have a wider connotation and it would not be appropriate to give it a restrictive meaning. Every word and phrase of the Act is to be understood in its context and must be given significance so that they are not rendered redundant. The appellant has steadfastly maintained that the interpretation of the provisions cannot mean land which was a forest in the past (i.e. before 30th August, 1975) to be a `forest according to the Act. This argument might have had some force had the time period in question related to many decades or even a century before. The aforementioned proceedings were concluded in proximity to the appointed day in question, and the character of land cannot be said to have changed over such a relatively short period of time. It is beyond doubt that the land which encompassed the said portion of 53 acres belonging to thewas a `forest on the appointed day. In our considered opinion, the facts on record seem to overwhelmingly support such a conclusion.35. The appellant has submitted that although the word `Forest was added in the Record of Right after such proceedings, it was later dropped when the matter went up in appeal to the Commissioner. Even if this were to be considered, it is to be noted that the preponderance of evidence seems to indicate the land in Survey No. 345 was considered as `forest. This is amply supported by documentary evidence, including the mortgage deed of 1900, and the revenue records of the past 50 years. Moreover, the conveyance deed dated 29.3.1975 which was executed by the Court Receiver to the appellant, clearly describes the land as "piece or parcel of forest land with structures". This is further buttressed by the mutation entries tillwhich described the land as a forest. Even the mutation entries fromhave only changed the recording to `huts, quarry and grass which does not in any way dispute the nature of the land. That apart in the enquiry conducted underof Section 37 of the Bombay Land Revenue Code, it was admitted by the Company through whom the appellant had derived title that the land was forest land. Therefore, there is overwhelming documentary evidence and also contemporaneous evidence on record to prove and establish that the land, in question, even in recent times was considered as forest land and also retained its character as such.36. Therefore, the issue of whether the land in question was a `forest on the appointed day, has to be seen in the context of whether the entire land that encompassed the disputed area was a `forest on the said date. In order to seek the reasons behind such an analysis, we need only look into the legislative scheme of the Act, which has been elaborated hereinabove.Therefore it is clear that the purpose of the statute and the intention of the legislature in enacting the same must be of paramount consideration while interpreting its provisions. In this instance, moreover, the provisions of the Act present no apparent conflict with the overarching objective of vesting `private forests with the State in the Governments efforts to protect them. Further, it is important to note that the said area was being used for quarrying operations by theThat the said portion in the area of Surveymeasuring 209 acres is claimed to be rocky and devoid of growth certainly does not change the character of the forest land. It cannot be disputed that within forest areas, there exists water bodies swamp land, grass land etc. The very existence of such land within the forest area would and could not change the nature and character of the forest land and the same would still continue to be treated as forest land. In many instances across the country, mining and quarrying operations, while regulated, do take place in forest land, and they can very well be considered as forest produce. However, the harmful effects of the ecological imbalance that may result as a consequence of quarrying operations in a forest zone is also to be considered.39. Thus, in light of the legislative scheme of the Act, and the provisions discussed herein, we are of the considered opinion that the said portion of the land, measuring 53 acres will vest with theas a `private forest. That the area fell within a part designated as `forest on the 30th of August, 1975 is beyond dispute and is supported by the evidence on record. Therefore, by virtue of Section 2(ii) of the Act, the portion in dispute will also be designated as a `private forest under Section 2(f) of the Act, and the authorities are directed to maintain it as such.40. It may also be cursorily mentioned here that both parties have made submissions with regard to the requirement of issuance of notice as per Section 35(3) of the Act. Neither the issuance and service of the notice, nor its publication in the Government Gazette could be challenged as both the exercises have been done in the present case. The High Court in its impugned order has extensively dealt with the same and has recorded a finding that notice was issued to the registered owner and served. These conclusions have not been specifically challenged by the appellant. It is proved and also recorded that the notice under Section 35(3) of Forest Act was issued to the owner on 8.8.1975 and was served on the recorded owner. Since the notice was issued and served on the recorded owner, the same was sufficient compliance. In order to fortify our conclusions we also rely on the judgment of this Court in Chintamani Gajaman Velkar Vs. State of Maharashtra & Ors. Reported in (2003) 3 SCC 143, wherein this Court held that irrespective of whether the notice was served on the land owner before the appointed date or not, issuance of notice before that day would itself be sufficient for vesting the land in the State.41. Thehas also alleged that the States decision to consider the disputed land as automatically vested with the Government was irrational and disproportionate. In this regard, it was the argument of the learned counsel for the appellant that while it may be possible for the Government to regulate and prohibit certain activities in `forest lands, the ownership would continue to vest with the private owners, and there cannot be any automatic vesting of the same. Thus it was argued that taking away the ownership of the land was wholly disproportionate in nature.42. Being called upon to review this administrative action, we have examined as to whether the same amounts to irrational or disproportionate. The common yardstick to determine whether the act on the part of the Government violates established principles of administrative law has been the Wednesbury principle of unreasonableness, employed both by English and Indian Courts. The Wednesbury principle was enunciated by Lord Greene MR inThe principle of proportionality envisages that a public authority ought to maintain a sense of proportion between particular goals and the means employed to achieve those goals, so that administrative action impinges on the individual rights to the minimum extent to preserve public interest. Thus implying that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. The principle of proportionality therefore implies that the Court has to necessarily go into the advantages and disadvantages of any administrative action called into question. Unless the impugned administrative action is advantageous and in public interest such an action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to examine whether the power conferred is exercised in proportion to the purpose for which it has been conferred. Thus, any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred.45. This principle has found favour in recent times with this Court, and a number of decisions reflect the shift towards the doctrine of proportionality.The test of proportionality is therefore concerned with the way in which thehas ordered his priorities, i.e., the attribution of relative importance to the factors in the case. Thus, it is not so much the correctness of the decision that is called into question, but the method to reach the same. In this context, we are to see if the decision of thein considering the disputed property to be automatically vested with the Government is commensurate with public interests, in a way that affects individual rights in a minimal way.51. The decision of the Government, as we have elucidated earlier, has been guided by the provisions in the Act, which seek to conserve and protect private forests in the State of Maharashtra that have been facing severe depletion and exploitation. Therefore, the Act, which provides for the vesting of private forests with the Government, does so in the general interests of the public in tune with principles of environmental protection and sustainable development, to which we have alluded at the outset. In our opinion, thewas only acting in accordance with the principles envisaged in the Act. This action cannot in any way said to be disproportionate or irrational solely because it divests theof the land within SurveyThe circumstances of this case, especially in so far as it relates to the quarrying operations conducted by thein the said area, merit that the State protects the interests of the general public by acquiring the land as a private forest.