SC clears constructions on Mumbai's private forest lands

New Delhi: The Supreme Court today held that State cannot be allowed to demolish massive constructions made over the years by declaring the disputed land as a "private forest" after long and inordinate delay.

The apex court said it cannot put the clock back when the 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 raised by the State.

It said citizens, who invested huge amount believing that there was no illegality in construction, should not suffer for the silence of the State for decades.

"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

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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 land was declared a private forest about three decades ago and that it vests in the State," a three-judge bench headed by justice R M Lodha said.

The bench also questioned, "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?"

[caption id="attachment_53507" align="alignnone" width="300"] The apex court questioned the state government's inaction. AFP[/caption]"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," the bench, also comprising justices Madan B Lokur and Kurian Joseph said.

The bench delivered the judgement on a batch of 20 appeals where the principal question for consideration was 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 this case, the state government, despite issuing showcause notices in 1957 about the disputed lands in Vikhroli inMumbai, made no attempt to take over possession of the land atany point of time and on the contrary permissions were grantedto Godrej and others from time to time for the construction ofbuildings on the disputed land.

Holding that unusually long period and "undoubtedly" muchmore than a reasonable time had elapsed between 1957 and 2006for enabling the State to take a decision on the show causenotice, the bench said,"Therefore, following the law laiddown by this Court, the show cause notice must, for allintents and purposes be treated as having become a dead letterand the seed planted by the State yielded nothing".

The bench said in its opinion, the failure of the Stateto take any decision on the show cause notice for severaldecades (assuming it was served) is indicative of its desireto not act on it.

"This opinion is fortified by a series of events thathave taken place between 1957 and 2006, beginning with theconsent decree of Janaury 8, 1962 in the Suit of 1953 wherebythe disputed land was recognized as not being forest land;permission to construct a large number of buildings (bothresidential and otherwise) as per the Development Plans of1967 and then of 1991.

"Exemptions granted by the Competent Authority under theUrban Land (Ceiling and Regulation) Act, 1976 leading toGodrej making unhindered but permissible constructions; andfinally, the absence of any attempt by the State to takepossession of the 'forest land' under Section 5 of the PrivateForests Act for a couple of decades," the bench said.

Keeping away the allegation of collusion betweenauthorities and developers, the bench said, "It is difficult at this distant point of time to conclude, one way or theother, whether there was or was not any collusion (as alleged)or whether it was simply a case of poor governance by theState."

"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 appellants, the institutions, the State and the residents of the tenements that have been constructed in the meanwhile," the bench said.

The apex court said the provisions of 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.

It said the remedy of demolition cannot be applied per se with a broad brush to all cases as has been sought by an NGO and the state counsel who said this is easily achievable.

"But it is easier said than done," observed the bench about the states submission the acceptance of which would have resulted in the 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, the bench noted.

The bench said the appeals in hand was a reflection of extraordinary circumstances "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," the bench observed.

The apex court said even 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 bench noted the State permitted the construction through the development plans and provided 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 led people to believe that there was no patent illegality in constructions on the disputed land nor was there any legal risk in investing on the disputed land."

"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," the bench said.

"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," the court said.

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 Winkleism" enabled

the appellants to obtain valid permissions for which they cannot be faulted, it said.

PTI