TMI Blog2010 (11) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court reversed the order and concurrent findings recorded by the Sub-Divisional Officer on 23rd April, 1985 and the Maharashtra Revenue Tribunal on 21st February, 1998 wherein it was held that the land in question is neither forest nor private forest as referred to in the Maharashtra Private Forests (Acquisition) Act, 1975 (hereinafter referred to as the Act ). 4. The gamut of events that led to the passing of the impugned judgment and order of the High Court may be elaborated here. The land in question was part of an original Survey No. 345 in village Dahisar, Maharashtra, measuring about 650 acres. At all relevant times, it was shown as forest land in the Revenue records. In or about 1947, out of 650 acres, around 365 acres was acquired for the purpose of creating a National Park at Borivli. Original Survey No. 345 was subsequently divided into three survey numbers, being Survey Nos. 345-A, 345-B and 345-C. The land which was acquired was Survey No. 345-B. From the remaining land, land admeasuring about 75 acres was given Survey No. 345-C and the land in question admeasuring about 209 acres was given Survey No. 345-A. 5. It is the case of the State of Maharashtra t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Suburban District, wherein notices were issued to the company, being the owner of the land as well as to the Court Receiver. Subsequently, by an order dated 12th November, 1975, the Sub-Divisional Officer held the land to be private forest and also held that the land stood acquired and vested in the State of Maharashtra. The company was, therefore, called upon to hand over possession of the land within 10 days to the Collector of Bombay. 8. The company challenged the said order passed by the Sub- Divisional Officer by filling an appeal before the Maharashtra Revenue Tribunal and the Maharashtra Revenue Tribunal vide its order dated 20th March, 1976 dismissed the appeal, upholding and confirming the order passed by Sub-Divisional Officer and observing that the land in question was forest within the meaning of Section 2(c-i) of the Act of 1975. It was also held to be private forest falling under Section 2(f) of the Act and as such, stood acquired and vested in the State of Maharashtra. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such did not stand acquired and vested in the Government of Maharashtra in accordance with the provisions of the Act. 12. The Respondent State challenged the said order passed by the Sub-Divisional Officer by filing an appeal before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal, vide its judgment and order dated 29th September, 1986, allowed the appeal, set aside the order passed by the Sub-Divisional Officer and declared that the land admeasuring 53 acres in possession of respondent No. 1 as 'forest and private forest as defined in the Act. The Tribunal also held that in accordance with the provisions of the Act, the land stood acquired and vested in the State of Maharashtra. 13. Aggrieved with the order passed by Maharashtra Revenue Tribunal dated 29th September, 1986, the appellant- Corporation filed Writ Petition No. 4726 of 1986 in the Bombay High Court. A Division Bench of the Bombay High Court vide its judgment and order dated 13/17th March, 1992 confirmed the order passed by Maharashtra Revenue Tribunal, holding that the land in possession of respondent No. 1 was forest and private forest , and as such, stood acquired and vested in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid 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. 19. The Bombay High Court, however, allowed the petition (Writ Petition No. 1052 of 1998] and decided in favour of the State of Maharashtra, Respondent herein. In deciding the matter, the Bombay High Court held: 81. The Tribunal then stated: In this view of the admitted position, we cannot altogether refrain ourselves from finding some substance in the submission of respondent No. 1 to the effect that in the absence of any fresh evidence from the appellant, there is no fresh material to disturb the finding of the Maharashtra Revenue Tribunal as given in its last judgment of 4th December, 1992. With respect, the above approach of the Maharashtra Revenue Tribunal is not in consonance with law and cannot be approved. It is not open to the Tribunal to proceed on the basis that since there is no fresh material to disturb the finding of the MRT as given in its judgment dated 4th December, 1992, the said finding called for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the counsel on the fact that the Sub-Divisional Officer, while deciding the matters, considered the fact that the land was dropped from acquisition in earlier land acquisition proceedings and it was not found suitable for the development of a National Park. 21. According to the counsel for the appellant-Corporation, the Indian Forest Act, 1927 clearly differentiates between Government Forest and Privately Owned Forest . While it was admitted that the Government can regulate or prohibit certain activities in such land, ownership would continue to vest with the private party. It was the counsel's submission that there is therefore, no automatic vesting of a privately owned forest, i.e. private forest' with the Government. Learned counsel also took us through the reasons behind the decision of Maharashtra Revenue Tribunal to buttress his arguments. Adjudication as to the nature of land whether it is forest or private forest , according to Counsel for the appellant-Corporation, had to be done in accordance with the provisions of 1975 Act. 22. It was submitted that the respondent-State had two opportunities in separate rounds of litigation to produce evidence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended by the learned counsel appearing for the respondent-State that the Company at the time took the stand that the land in question is a jungle, and not a waste land, with a view to prevent its vesting in the State Government under Section 4 of the Bombay Salsette Estate Abolition Act, 1951. It was urged before this Court that the appellant-Corporation, now as the successor-in-interest of M/s. Veekaylal Investment Company is adopting a diametrical opposite stand that the said land is not a forest land and hence is not permissible. 25. Counsel for the Respondent-State also contended that Survey No. 345-A in its entirety is part of Sanjay Gandhi National Park Division. In view of the interim orders passed by the Bombay High Court from time to time, and in particular, of the orders dated 7th May 1997 and 17th July 1999 which applied to the said land, according to counsel for the State Government, the land over which the State Government claimed ownership was forest and private forest and vested in the State Government. It was also submitted that irrelevant and extraneous factors have been kept in mind by the Tribunal for coming to the conclusion that the land was not fores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, but this development shall have to resonate with the preservation of the environment. Mahatma Gandhi once said that earth provides enough to satisfy every man's need but not every man's greed. It is the greed of the mankind which has brought environment degradation and pollution. Preservation of the eco-system is an immutable duty under the Constitution - a fine balance must be struck between environmental protection and development. Many regions in India are biodiversity `hotspots', known to host a staggering variety of flora and fauna. However, they are under the constant threat of environmental degradation and rapid depletion of natural resources, due to various factors, including the desire to earn quick money. Consequently, a major challenge in this backdrop is to arrive at a successful model of sustainable development - one that aims to preserve the rich ecosystem, while addressing the economic needs of the people in the region. 29. In as recently as September 2010, this Court has observed in Glanrock Estates v. State of Tamil Nadu [Writ Petition (Civil) Nos. 242 of 1988 and 408 of 2003] that : 8. [....] Forests in India [are] an important part of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... became less than twelve hectares on the appointed day on account of acquisition of their forest lands under this Act, or whose total holdings of lands was already less than twelve hectares on the day immediately preceding the appointed day, the whole or the appropriate portion of their forest lands so acquired shall be restored to, and revested in, them, so that their total holdings of lands may be twelve hectares or else, as the case may be, and they may be able to continue to earn their livelihood from such lands; and to provide for certain other purposes hereinafter appearing. The State Act defines forest in section 2(c-i) thus: Forest means a tract of land covered with trees (whether standing, felled, found or otherwise), shrubs, bushes, or woody vegetation, whether of natural growth or planted by human agency and existing or being maintained with or without human effort, or such tract of land on which such growth is likely to have an effect on the supply of timber, fuel, forest produce, or grazing facilities, or on climate, stream flow, protection of land from erosion, or other such matters and includes- (i) land covered with stumps of trees of forest: (ii) land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument of the appellant-Corporation has been that the State's contention to give an expansive interpretation to the term `forest' as defined in Clause (c-i) of section 2 of the Act is erroneous. The State has submitted that `forest' would include even land which was a forest in past irrespective of whether on the appointed day, i.e, 30.8.1975, the same was not a forest. According to the appellant, accepting such an interpretation would tantamount to land which was a forest even 50 or 100 years ago, to stand vested and acquired on the appointed day, resulting in an absurdity. To buttress this argument, it has been the endeavour of the appellant to prove that the said portion of the land was not a forest on the appointed day. 33. The appellant-Corporation has pointed out to us the conclusions reached by both the Authorities in their orders dated 23.4.1985 and 21.2.1998. These orders relied on the fact that the portion of the said land was under quarrying operations, and that it was too rocky and devoid of tree growth. Moreover, land acquisition proceedings initiated vide order dated 15.9.1973 were withdrawn on the recommendation of the Forest Department. All these fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was executed by the Court Receiver to the appellant, clearly describes the land as piece or parcel of forest land with structures . This is further buttressed by the mutation entries till 1969-70 which described the land as a forest. Even the mutation entries from 1970-71, have only changed the recording to `huts, quarry and grass' which does not in any way dispute the nature of the land. That apart in the enquiry conducted under sub-Section(2) of Section 37 of the Bombay Land Revenue Code, it was admitted by the Company through whom the appellant had derived title that the land was forest land. Therefore, there is overwhelming documentary evidence and also contemporaneous evidence on record to prove and establish that the land, in question, even in recent times was considered as forest land and also retained its character as such. 36.Therefore, the issue of whether the land in question was a `forest' on the appointed day, has to be seen in the context of whether the entire land that encompassed the disputed area was a `forest' on the said date. In order to seek the reasons behind such an analysis, we need only look into the legislative scheme of the Act, which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation, Statutes have to be construed so that every word has a place and everything is in its place. In Chief Justice of Andhra Pradesh and Others v. L. V. A. Dixitulu and Others, reported at (1979) 2 SCC 34, a Constitutional Bench of this Court observed: The primary principle of interpretation is that a constitutional or statutory provision should be construed 'according to the intent of they that made it' (Code). Normally, such intent is gathered from the language of the provision. If the language of the phraseology employed by the legislation is precise and plain and thus by itself, proclaims the legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will vest with the respondent-State as a `private forest'. That the area fell within a part designated as `forest' on the 30th of August, 1975 is beyond dispute and is supported by the evidence on record. Therefore, by virtue of Section 2 (c-i) (ii) of the Act, the portion in dispute will also be designated as a `private forest' under Section 2(f) of the Act, and the authorities are directed to maintain it as such. 40. It may also be cursorily mentioned here that both parties have made submissions with regard to the requirement of 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 serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wednesbury principle of reasonableness has given way to the doctrine of proportionality. Through his decision in the celebrated case of Council of Civil Services Unions v. Minister for the Civil Services reported at [1985] AC 374, Lord Diplock widened the grounds of judicial review. He mainly referred to three grounds upon which administrative action is subject to control by judicial review. The first ground being illegality , the second irrationality and the third `procedural impropriety'. He also mentioned that by further development on a case to case basis, in due course, there may be other grounds for challenge. He particularly emphasized the principles of proportionality. Thus, in a way, Lord Diplock replaced the language of `reasonableness' with that of `proportionality' when he said: By `irrationality' I mean what can by now be succinctly referred to as `Wednesbury unreasonableness'...It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.... 44. The principle of proportionality envisages that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o law, improper, irrational or otherwise unreasonable, a court competent to do so can interfere with the same while exercising its power of judicial review. 49. In Charanjit Lamba vs. Commanding Officer, Southern Command and Ors, reported at AIR 2010 SC 2462, it was held that The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. We are not unmindful of the development of the law that from the doctrine of Wednesbury unreasonableness, the court is leaning towards the doctrine of proportionality.... 50. The test of proportionality is therefore concerned with the way in which the decision-maker has ordered his priorities, i.e., the attribution of relative importance to the factors in the case. Thus, it is not so much the correctness of the decision that is called into question, but the meth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as Writ Petition No. 1383 of 2002 is concerned, the Maharashtra Revenue Tribunal considered the matter again after the review petition was allowed by this Court and dismissed the appeal filed by the petitioner appellant. We see no infirmity in the reasons recorded and conclusions reached by the Tribunal. In our opinion, the said decision requires no interference. The petition, therefore, deserves to be dismissed and is accordingly dismissed. 54. Before this Court, Counsel for the appellant herein has contended that the Bombay High Court failed to consider the additional submissions put forth by the appellant, and proceeded to dismiss the appeal in a common judgment. However, upon hearing the learned counsel and on perusal of the submissions, we find that the appellant herein has placed similar, if not identical, arguments to that of the Maharashtra Land Development Corporation. 55. Counsel for the appellant herein has primarily contended that the meaning of `forest' must be understood in its ordinary sense, and that it would be inconceivable to think of forest land without trees and shrubbery. Consequently, it was submitted, the rocky area devoid of growth cannot be c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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