New Delhi: The Supreme Court on Thursday 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 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?"
"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 show cause notices in 1957 about the disputed lands in Vikhroli in Mumbai, made no attempt to take over possession of the land at any point of time and on the contrary permissions were granted to Godrej and others from time to time for the construction of buildings on the disputed land.
Holding that unusually long period and "undoubtedly" much more than a reasonable time had elapsed between 1957 and 2006 for enabling the State to take a decision on the show cause notice, the bench said, "Therefore, following the law laid down by this Court, the show cause notice must, for all intents and purposes be treated as having become a dead letter and the seed planted by the State yielded nothing".
The bench said in its opinion, the failure of the State to take any decision on the show cause notice for several decades (assuming it was served) is indicative of its desire to not act on it.
"This opinion is fortified by a series of events that have taken place between 1957 and 2006, beginning with the consent decree of Janaury 8, 1962 in the Suit of 1953 whereby the disputed land was recognized as not being forest land; permission to construct a large number of buildings (both residential and otherwise) as per the Development Plans of 1967 and then of 1991.
"Exemptions granted by the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 leading to Godrej making unhindered but permissible constructions; and finally, the absence of any attempt by the State to take possession of the - forest land - under Section 5 of the Private Forests Act for a couple of decades," the bench said.
Keeping away the allegation of collusion between authorities and developers, the bench said, "It is difficult at this distant point of time to conclude, one way or the other, whether there was or was not any collusion (as alleged) or whether it was simply a case of poor governance by the State."
"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 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.