Conflict between Indian Forest Act and Maharashtra Private Forest Act

The Hon’ble Suprem Court in the matter titled as Godrej & Boyce Mfg. Co. Ltd. & Anr. Vs. The State of Maharashtra & Ors. Has held that Notice under section 35(3) of the Forest Act pre-supposes the existence of a forest. It gives an opportunity to the owner of a forest to show cause as to why a regulatory or a prohibitory measure should not be made in respect of the forest concerned. The owner of the forest is then expected to file objections within such reasonable time specified in the notice and also to lead evidence in support of the objections. It is only when these basic requirements are met, the owner of the forest gets entitled for hearing on the objections. In order to ensure that the entire procedure is duly followed, service of a notice becomes natural.  Under Section 35(4) of the forest Act a notice under Section 35(3) of the Forest Act may provide that for a period not exceeding six months the owner of the forest can be obliged to adhere to one or more of the regulatory or prohibitory measures mentioned in Section 35(1) of the Forest Act. The service of notice is mandatory as any failure on the part of owner of the forest to abide by the conditions attracts imprisonment and/or fine as prescribed under Section 35(7) of the Forest Act. The service of notice under Section 35(3) of the Forest Act is also important as in the event of it being not served on the owner of the forest, he/she may continue to damage the forest and thus defeating the very purpose of the Forest Act. Thus, the need of ensuring service is to protect the interests of the owner of the forest who may have valid reasons not only to object to the issuance of regulatory or prohibitory directions, but to also enable him/her to raise a jurisdictional issue that the land in question is actually not a forest and to prevent damage to or destruction of a forest. When, however, no time period is specified to decide show cause notice issued under Section 35 of the Forest Act, it must be presumed that it must be decided within a reasonable time. Section 2(f)(iii) of the Private Forests Act was intended to apply to ‘live’ and not stale notices issued under Section 35(3) of the Forest Act. Section 2(f)(iii) of the private forest Act must be reasonably and strictly construed so as not to discomfit a citizen and expropriate his/her property. The provision is a saving clause for pipeline notices issued under Section 35(3) of the forest Act but which could not, for want of adequate time be either withdrawn or culminate in the issuance of a regulatory or prohibitory final notification under Section 35(1) of the Forest Act, depending on the objections raised by the land owner. In the instant matter, it was held that assuming the disputed land was a private forest the state remained completely inactive when construction was going on over acres and acres of land for a few decades. The state permitted the construction through the development plans and by granting exemption under the Urban Land (Ceiling and Regulation) Act, 1976 and providing necessary infrastructure such as roads and sanitation on the disputed land and surrounded acres. 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 action 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 a large number of citizens to believe that there was no patent illegality in the constructions on the disputed land nor was there any legal risk in investing on the disputed land. Under these circumstances, for the state or the Bombay Environment Action Group to contend that only the citizen must bear the consequences of the unauthorized construction may not be appropriate. It is the complete inaction of the State, and infact its 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. 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 failure of the State to implement and enforce the law for several decades.

©️Vinaykumar Khatu

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