TaxTMI 
TaxTMI 
2010 (11) TMI 1061
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.... 1998, the High 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....
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....Government under the Act. An inquiry was conducted under Section 6 of the Act by the Sub-Divisional Officer, 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, 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 p....
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....3rd 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 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 confirme....
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....ons 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. 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 Tr....
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....cluding 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, according to the counsel for the appellant-Corporation, stemmed from the language of Section 6 of the Act. Emphasis was also placed 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 Tr....
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....ue Code, and in the enquiry held in respect of the applicability of the Bombay Salsette Estate Abolition Act, 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 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 1....
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....f preserving the environment on the other. This Court has for long been an outspoken critic of attempts to degrade the environment, and a vocal supporter of sustainable development. 28. Since Independence, India has travelled a long way on the path of progress and industrialization to achieve a better quality of life. A developing country like ours cannot afford to ignore the growing needs of teeming millions, 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....
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....tecting 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) whose total holdings of lands 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....
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....etermination of amount to be paid to the owners of private forests, deduction of amount of encumbrances and extinguishment of rights of other persons, appeals, revisions etc. Section 21 empowers the State Government to declare certain lands as private forests. It also provides that on publication of the notification by the State Government regarding 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 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 w....
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....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 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 contemporaneou....
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.... [of statutory provisions] must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives 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 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....
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.... 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 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 ....
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....ise 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 irrelevant collateral matters." 43. However, the 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 e....
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....ed against him. 48. In Coimbatore District Central Coop. Bank v. Employees Assn. reported at (2007) 4 SCC 669 this Court stated that the doctrine of proportionality has not only arrived in our legal system but is here to stay. With the increasing presence and visibility of administrative law and the need to control possible abuse of discretionary powers by various administrative authorities, 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 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....
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.... 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 private forest in terms of Section 2(f) of the Maharashtra Private Forest Act, 1975 and that it stood vested in the State Government in terms of Section 3(1) thereof. The Bombay High Court, while dismissing Writ Petition No. 1383 of 2002, held: "So far 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 dismi....