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MAHARASHTRA LAND DEVELOPMENT CORPORATION & ORS. Versus STATE OF MAHARASHTRA & ANR.

2010 (11) TMI 1061 - SUPREME COURT

CIVIL APPEAL NOS. 2147-2148 OF 2004 - Dated:- 11-11-2010 - SHARMA, MUKUNDAKAM AND DAVE, ANIL R., JJ. JUDGMENT Dr. Mukundakam Sharma, J. 1. Since the issues raised and argued in these matters are inter-connected, we propose to dispose both of them by this Order. Civil Appeal No. 2147 is filed by the Maharashtra Land Development Corporation against the State of Maharashtra seeking to challenge the judgment and order of the Bombay High Court dated October 8, 2003 in Writ Petition No. 1052 of 1998. .....

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ed 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 .....

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suring 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 that village Dahisar was Ex-Khot village. The whole land of Survey No. 345 of village Dahisar was originally owned by ex-khot of 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 Cou .....

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ition Act, 1951, and vide an order dated 24th December, 1964, the entire land bearing Survey No. 345-A 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 sub-Section (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 sub-Section (1) of Section 35 of the Act should not be issued for reg .....

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ict, 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. 345-A admeasuring 209 acres. The company filed a reply to the said notice contending that the land bearing Survey No. 345-A 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 whethe .....

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re, 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) .....

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45-A, 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 the Respondent-State, possession of land admeasuring about 106 acres of land out of 209 acres of Survey No. 345-A. 10. The appellant-Corporation herein objected to handing over possession of the land which was with it. It filed Mi .....

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d 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 the appellant- Corporation. It was also ordered that in ca .....

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he appellant-Corporation herein. After hearing the appellant-Corporation, the Sub-Divisional Officer, by an order dated 23rd April, 1985, held that land admeasuring 53 acres out of Survey No. 345-A in possession of the appellant-Corporation was 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 the Sub-Divisional Of .....

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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 .....

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the parties an opportunity of adducing additional evidence. 15. After remand, the matter was placed before the Maharashtra Revenue Tribunal. It was re-heard and vide its judgment and order dated 4th December, 1992, the Tribunal held that the entire land bearing Survey No. 345-A 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 o .....

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The judgment and order of the Bombay High Court was again challenged by the appellant-Corporation, approaching 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 re .....

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y 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 .....

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o 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 no interference. Once a petition was filed against the said judgment in the High Court and the High Court set aside that judgment and the Supreme Court allowed the appeal directing the Tribunal to consider and decide the matter afresh, in the eye of law, it cannot be said that there were "findings" by t .....

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ge Dahisar was neither "forest" nor "private forest" and by taking such view, it exceeded jurisdiction and hence, the said decision deserves to be quashed by this Court by exercising powers under Articles 226 and 227 of the Constitution and accordingly, the said decision is quashed and set aside. 105. For the aforesaid reasons, in our opinion, the petition (Writ Petition No. 1052 of 1998) deserves to be allowed and is accordingly allowed. The order passed by the Maharashtra R .....

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Corporation has approached this Court by way of appeal. 20. In this appeal, we heard the learned counsel appearing for both parties. Mr. Ashok Desai, Senior Advocate and Mr. Jay Savla, appearing on behalf of the appellant- Corporation, submitted that the findings of the Sub- Divisional Officer in concluding that the appellant- Corporation's land was not a private forest' on the appointed day, i.e. 30.08.1975, would be final, subject to the decision of the Tribunal. Such a conclusion, acc .....

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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 Tri .....

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that twice the matter had reached upto the highest Court of the country and that on both the occasions, the Supreme Court allowed the appeal filed by the appellant-Corporation, remanded the matter to the Maharashtra Revenue Tribunal and granted liberty to the parties to adduce additional evidence. It was the contention that additional evidence had not been led by the respondent herein but further materials had been produced on record by the first respondent and that if on the basis of such mater .....

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Act, 1980, must be understood according to its literal, dictionary meaning, and must not be understood to include any area recorded as forest in the Government records irrespective of ownership. Moreover, it was also contended that the provisions of the Forest Conservation Act, 1980 do not deal with the acquisition or vesting of privately owned land' or forest' as the case may be. Lastly, it was also contended by the counsel for the appellant-Corporation that the notice purportedly issu .....

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t, 1951, it was found that the land in Survey No. 345 is a forest land. Before the Mamlatdar, evidence was adduced by the predecessor-in-interest of the appellant-Corporation, M/s. Veekaylal Investment Company, to the effect that Survey No. 345 was a jungle'. It was contended 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 Governme .....

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bay 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 forest/private f .....

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(Acquisition) Act, 1975 must be given an expansive interpretation in view of the fact that the Act was introduced to ameliorate grave concerns over the fact that private forests in Maharashtra had been severely depleted due to unregulated, unrestricted and excessive exploitation. A bare reading of the Act, it was contended, would make it clear that the definition of "forest" under Section 2 (c-i) (ii) includes land which was part of a forest in addition to land which is presently part .....

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it was enough to vest the land in the State Government without any enquiry. 27. This case is placed in the context of the State Government's attempt to acquire the land in question as a "private forest", amidst the efforts of the Maharashtra Land Development Corporation to continue its quarrying operations in the area. Therefore, this case is one that must seek to attain a fine balance between the process of development on the one hand, and the ecological imperative of preserving t .....

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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 o .....

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1988 and 408 of 2003] that : " 8. [....] Forests in India [are] an important part of the environment. They constitute [a] national asset. In various judgments of this Court delivered by the Forest Bench of this Court in the case of T.N. Godavarman v. Union of India (Writ Petition No. 202 of 1995), it has been held that "inter- generational equity" is part of Article 21 of the Constitution. What is inter-generational equity? The present generation is answerable to the next generati .....

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s in the State. When we talk about inter-generational equity and sustainable development, we are elevating an ordinary principle of equality to the level of over- arching principle." 30. However, it is pertinent to note here that the primary issue involved in this case is as to whether on the appointed day, i.e., 30.08.1975 under the Maharashtra Private (Acquisition) Forest Act, 1975 the Appellant's land of 53 acres was a "private forest" or not. In this regard, we have peruse .....

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tate of Maharashtra generally for conserving their material resources and protecting them from destruction or over-exploitation by their owners and for promoting systematic and scientific development and management of such forests for the purpose of attaining and maintaining ecological balance in the public interest [...] AND WHEREAS it is also expedient to provide that in the case of owners of private forests (other than those whose lands were used for extracting minor minerals such as quarries .....

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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 lik .....

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declared to be forest by the State Government: (iv) forest land held to let for purpose of agriculture or for any purposes ancillary thereto: (v) all the forest produce therein, whether standing, felled, found or otherwise;" It also defines "private forest" in Clause (f) of section 2 which reads as under:- "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 34- .....

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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." 31. Section 3 of the Act mandates that all private forests will vest in the State Government. Section 4 enumerates steps to be taken by the Government on acquisition of priv .....

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declaration of any land as private forests, certain consequences would ensue. 32. In the context of this legislative scheme, the primary 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 s .....

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ated 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 findings were put forth by the appellant-Corporation to contend that the land was not a forest as per the provisions of the Act. 34. Despite these averments, we are unabl .....

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st" 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 can .....

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ion of 53 acres belonging to the appellant-Corporation was 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 t .....

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ion 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 que .....

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nd Reasons, which supplement and aid in the interpretation of the provisions, state: "The total forest area in the State [of Maharashtra] is approximately 21 per cent of the total area. This is less that the national average and is also substantially less that the 33 1/3 per cent recommended by the National Forest Policy Out of the total area under Forests, a considerable area is private forests. While no detailed survey has been made, a Committee appointed a decade ago estimated the same a .....

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ed barren and uncultivable and more and more areas are increasingly being brought to the same state..." 37. The Preamble to the Act, which is the guiding light to its interpretation, also expresses similar concerns as to the depletion of forest cover in the State. In this light, it is important to construe the provisions of the Act in tune with the purpose of its enactment. Such a rule of interpretation has been supported by the decisions of this Court in a catena of cases. In Union of Indi .....

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the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. 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 sect .....

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g 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 .....

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itimate for the court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved and the consequences that may flow from the adoption of one in preference to the other possible interpretation." 38. Therefore it is clear that the purpose o .....

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he area of Survey 345-A measuring 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 o .....

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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 is .....

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e 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 .....

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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 Wednes .....

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st be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question; the authority must disregard those irrel .....

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d "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 .....

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lic 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 th .....

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Ram v. State of Himachal Pradesh reported at (1983) 2 SCC 442, this Court held that if the penalty imposed is disproportionate to the gravity of the misconduct, it would violate Article 14 of the Constitution. 47. In Ex-Naik Sardar Singh v. Union of India and Ors reported at (1991) 3 SCC 213 where instead of one bottle of brandy that was authorized, the delinquent was found carrying four bottles of brandy while going home on leave. He was sentenced to three months rigorous imprisonment and dism .....

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certain principles have been evolved by reference to which the action of such authorities can be judged. If any action taken by an authority is contrary to 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 rea .....

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rt 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 method to reach the same. In this context, we are to see if the decision of the respondent-State in considering the disputed property to be autom .....

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ests of the public in tune with principles of environmental protection and sustainable development, to which we have alluded at the outset. In our opinion, the respondent-State was 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 the appellant-Corporation of the land within Survey 345-A. The circumstances of this case, especially in so far as it relates to the quarrying operations .....

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ithout merit and deserves to be dismissed. Civil Appeal No. 2148 of 2004 53.Civil Appeal No. 2148 is filed by K.N. Shaikh [appellant herein] against the State of Maharashtra seeking to challenge the judgment and order of the Bombay High Court dated October 8, 2003 in Writ Petition No. 1383 of 2002. The said Writ Petition was preferred against the decision of the Maharashtra Revenue Tribunal upholding the order of the Sub-Divisional Officer declaring that the survey No. 345-A constitutes a privat .....

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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 sub .....

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