On Fulfilment of all conditions by the user of land as laid down, the Central government to send approval under Section 2 of the Forest (Conservation) Act, 1980: Bombay High Court

 on 04 05 2021 on 22 03 civil wp st 4416 21.docR.M. AMBERKAR(Private Secretary) IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITIONNO. 4416 OF 20211. Percy Jamshed Driver2. Navaz Percy Driver Both adults Indian Inhabitants Residing at Generalna Estate Golunji Hill Parel Tank Road Mumbai 400 012. ..Petitioners Versus 1. State of Maharashtra Revenue and Forest Department Government of Maharashtra Mantralaya Mumbai 400 032.2. Union of India Through its Ministry of Environment Forest and Climate Change Regional OfficeEast Wing New Secretariat Building Civil Lines Nagpur 440001.3. Office of the Principal Chief Conservator of Forest Nagpur through its Nodal Officer 1st Floor Van Bhavan Ramgiri Road Civil Lines Nagpur 440001..Respondents...................Mr. Jamsheed Master i by Natasha Bhot for the PetitionersMs. R.M. Shinde AGP for Respondent Nos. 1 and 3Mr. A.M. Sethna a w Mr. D.P. Singh for Respondent No. 2...................CORAM : S.J. KATHAWALLA & MILIND N. JADHAV JJ.RESERVED ON : APRIL 1 2021. PRONOUNCED ON : MAY 4 2021. on 04 05 2021 on 22 03 civil wp st 4416 21.doc JUDGMENTThat this Hon ble Court bepleased to quash and set asidethe recommendations made inthe impugned letter dated 17thOctober 2019 and 10thFebruary 2021 by RespondentNo. 3 and direct Respondent No.1 not to act on the saidrecommendationsThat this Hon ble Court bepleased to issue a writ ofmandamus or a writ in thenature of mandamus or suchother writ as this Hon ble Courtmay deed fit to RespondentNos. 1 and 2 to expeditiouslydecide the pending applicationunder section 2 of the Forest(Conservation) Act 1980." 3. The Petitioners have challenged the validity andlegality of two communicationsdated 17.10.2019 and10.02.2021 issued by Respondent No.3 i.e the Principal Chief on 04 05 2021 on 22 03 civil wp st 4416 21.docConservator of Forest NagpurtoRespondent No. 1 i.e the Principal Secretary Revenue andForest Department State Government of Maharashtrarecommending withdrawal of the recommendation made bythe State Government vide letter dated 01.06.2007 to theCentral Government for seeking approval under section 2(ii)of the ForestAct 1980. 4. Before we advert to the submissions made onbehalf of the respective parties it would be apposite to referto the relevant facts briefly:4.1.Petitioners are the owners of land ad measuring0.056 HA out of Gat No. 199 Original Survey No. 65 2 inVillage Aundholi Taluka Maval District Puneof the Maharashtra Private Forest(Acquisition) Act 1975to show cause as to why the Petitioners should not beevicted from the said land for unauthorized encroachment onforest land and cancellation of any permission licencesgranted to the Petitioners. By letter dated 27.06.2003Petitioners replied to the above notice stating that thePetitioners were not aware of any acquisition proceedings inrespect of the said land and at the time of purchase of thesaid land in the year 1996 there was no such embargo orencumbrance stated in the land record pertaining to thesaid land. 4.3. On 18.07.2003 Petitioner No. 1 filed anapplication before the Sub Divisional OfficerMaval(hereinafter referred to as the "SDO Maval") under theprovisions of section 22A of the said Act for restoration of thesaid land in favour of the Petitioners by enclosing thenecessary documentation. On 19.08.2003 the SDO Mavaladdressed a letter to Tehsildar Maval for carrying out theinquiry and submit a report in respect of the Petitioners on 04 05 2021 on 22 03 civil wp st 4416 21.docholding and application seeking restoration and submit thesame to the office of SDO Maval.4.4. On 5.12.2003 the Deputy Conservator of Forest Pune Division addressed a letter to SDO Maval giving his"no objection" to the Petitioners application for restoration ifthe Petitioners were eligible for seeking restoration undersection 22A of the said Act.4.5. By order dated 29.12.2003 SDO Maval passedorder of restoration under the provisions of section 22A ofthe said Act in favour of the Petitioners after following thedue process of law subject to the following conditions to becomplied by the Petitioners viz status of the land shallremain forest prior permission of Central Government willbe required to carry out any non forestry work andtheorder will be implemented after the approval of Governmentof India and entry on 7 12 extract shall be made accordingly.4.6.On 25.04.2004 Petitioners submitted a proposalunder section 2 of the ForestAct 1980 fordiversion of 0.056 HA out of the restored land fordevelopment of forest housedrinking watertank septic tank steel gate and small water tank on the saidland. By this application approval of the Central Governmentwas sought by the Petitioners through the Deputy on 04 05 2021 on 22 03 civil wp st 4416 21.docConservator of Forests. By letter dated 02.12.2006 theChief Conservator of Forests and Nodal Officer MaharashtraState Nagpur recommended the Petitioners proposal forsanction to the Principal SecretaryDepartment State Government of Maharashtra to move the Governmentof India for obtaining approval.4.7. By recommendation letter dated 1.6.2007 adetailed proposal was sent by the State Government to theRegional Chief Conservator of Forests Government of India Ministry of Environment and Forests for placing the samebefore the Government of India for its approval under section2(ii) of the ForestAct 1980. 4.8. By letter dated 18.10.2016 the AdditionalPrincipal Chief Conservator of Forests and Nodal Officer Maharashtra State Nagpur sent a reminder letter to theAddl. Principal Chief Conservator of ForestsGovernment of India Ministry of Environment Forests andClimate Change stating that approval was awaited from theCentral Government in respect of the Petitioners proposalfor diversion of 0.056 HA forest land for construction asforwarded by the Government of Maharashtra. 4.9. By letter dated 20.02.2017 the Government ofIndia Ministry of Environment Forests and Climate Change on 04 05 2021 on 22 03 civil wp st 4416 21.docinformed the State Government of Maharashtra that theproposal was kept on hold for further scrutiny and if theState Government was still interested in taking up theproject a fresh proposal to reconsider the proposal forapproval may be submitted by the State Government withthe updated information on the proposal as called foralongwith all supporting documentation.4.10.On 27.12.2017 the Deputy Conservator ofForests Pune submitted a fresh proposal to the ChiefConservator of Forests Pune by updating the information ascalled for alongwith all supporting documentation. 4.11. On 26.03.2018 the Principal ChiefConservator of ForestsMaharashtraState Nagpur addressed a detailed letter along with thecompliance report on the queries raised by the Governmentof India vide its letter dated 20.02.2017 requesting toconsider the proposal for reopening and move theGovernment of India for its approval under the provisions ofsection 2(ii) of the ForestAct 1980.4.12. On 5.5.2018 the Government of India Ministry of Environment Forests and Climate Changeaccorded in principle approval under section 2 of the Forest(Conservation) Act 1980 for diversion of 0.056 HA of on 04 05 2021 on 22 03 civil wp st 4416 21.docrestored forest land in favour of Petitioner No. 1 forconstruction of forest house and water tank in Pune districtin the State of Maharashtra subject to conditions stated inthe letter of approval. The said approval letter stated thatafter receipt of the report on the compliance of conditionnos.(v) to(x) and undertakings duly authenticatedby the competent authority in the State Government formalapproval will be considered under the provisions of section 2of the ForestAct 1980 further stating thattransfer of forest land to the user agency shall not beeffected by the State Government till formal order approvingthe diversion of forest land is issued by the CentralGovernment. 4.13. On 27.03.2019 Office of the ChiefConservator of Forests Pune Forest Circle Pune addressed adetailed compliance report letter to the Addl. Principal ChiefConservator of Forests and Nodal Officer Maharashtra State Nagpur inter alia stating that the conditions enumerated instage 1 approval letter dated 05.05.2018 were fulfilled bythe User Agency i.e the Petitioners and the DeputyConservator of Forests Pune and all undertakings andrecommendations were submitted for seeking forwardingthe case for stage 2 approval i.e formal approval under the on 04 05 2021 on 22 03 civil wp st 4416 21.docForestAct 1980. 4.14.By letter dated 17.10.2019 the office of thePrincipal Chief Conservator of Forests Maharashtra State Nagpur intimated the Principal SecretaryRevenue& Forest Department that the recommendations made by theState Government vide its letter dated 01.06.2007 deserveto be withdrawn in view of the order dated 13.11.2000passed by the Hon ble Supreme Court in Writ PetitionAct 1980 no order for restoration undersection 22A can be made without approval of the CentralGovernment therefore the restoration order in the case ofthe Petitioners land amounted to regularization ofencroachment on forest land and was bad in law. A copy ofthis letter was endorsed to Petitioner No. 1. Thiscommunication is impugned in the present petition. 4.15. Petitioners through their Advocate addresseda detailed reply dated 12.12.2020 to the above letter dated17.10.2019. It was stated that the Central Government hadissued its in principle approval on 05.05.2018 and the on 04 05 2021 on 22 03 civil wp st 4416 21.docPetitioners had complied with all conditions containedtherein despite which without giving an opportunity to thePetitioners the recommendation for withdrawal of restorationorder was made. The Addl. Principal Chief Conservator ofForests and Nodal Officer addressed a letter dated10.02.2021 to the Principal SecretaryRevenue andForest Department inter alia stating that therecommendations made by the State Government vide itsletter dated 01.06.2007 deserve to be withdrawn and theCollector Pune be directed to examine the case of thePetitioners on merits and seek prior approval of the CentralGovernment under section 2(i) of the ForestAct 1980 subject to fulfillment ofcertain conditions. He submitted that Petitioners havefulfilled the prescribed conditions including payment of theNet Present Valueand filing of all undertakings andonly thereupon the Chief Conservator of Forestsandcontended that though the legal status of the said land isthat of private forest within the meaning of the said Actwhich came into force on 30.08.1975 section 22A insertedby an amendment in the year 1978 authorized the Collectorto restore to the owner upto 12 ha. of private forests which1 on 04 05 2021 on 22 03 civil wp st 4416 21.docstood vested as deemed reserved forests in the StateGovernment by virtue of sub sectionsandof section 3of the said Act. She submitted that with effect from the dateof the restoration order under section 22A such restoredforest land ceased to be reserved forest within the meaningof the Indian Forest Act 1927. She submitted that whileformulating the proposal of the Petitioners to theGovernment of Maharashtra the Principal Chief Conservatorof Forests has given his specific recommendation and isreproduced in paragraph 10 of the affidavit in reply whichreads thus: "The restoration order No.MSC Appeal 13 2013 dated29 12 2003 under MaharashtraPrivate ForestsAct 1975 of Sub Divisional Officer Maval Pune can be affected only after thedue clearance of Government of Indiaand after ban of dereservation offorest land imposed by Hon bleSupreme court vide order dated13 11 2000 in W.P. No. 337 1995 islifted."6.1. She submitted that perusal of the above conditionstates that the restoration order dated 29.12.2003 can beeffected only after due clearance by the Government of Indiaand after ban of dereservation of forest land imposed by theHon ble Supreme Court vide order dated 13.11.2000 in CivilWrit Petition No. 337 1995 is lifted. She therefore 1 on 04 05 2021 on 22 03 civil wp st 4416 21.docsubmitted that unless the restoration order dated 29.12.2003passed by SDO Maval is regularized through leave of theHon ble Supreme Court and prior approval in that respect isobtained from the Central Government under the Forest(Conservation) Act 1980 the Petitioners have no locusstandi in the said land till such approval is obtained. 7. Mr. Sethna learned counsel appearing forRespondent No. 2 submitted that in the event if the StateGovernment recommends the proposal of the Petitioners byfollowing the due process of law Respondent No. 2 shallconsider the same appropriately and issue appropriateapproval sanction in accordance with law . 8.Submissions made by the respective counsel areon pleaded lines and have received the due consideration ofthe Court. Material on record has also been perused.9.At the outset it is not disputed that the proposalof the Petitioners has been recommended in accordance withlaw by the Principal Chief Conservator of Forests and NodalOfficer Revenue and Forests Department Government ofMaharashtra. It is also an undisputed position thatGovernment of India has granted in principle approval on05.05.2018 taking into consideration the aboverecommendation and various other issues and laid down1 on 04 05 2021 on 22 03 civil wp st 4416 21.doccompliance of 26 conditions by the Petitioners and theDeputy Conservator of Forests therein. Condition No.isrelevant to the present issue and answers the doubt raisedby Respondent Nos. 1 and 3 in its affidavit in reply in so faras obtaining leave of the Supreme Court is concerned. Thesaid condition No.is extracted and reads as under: "The State Government shall chargethe Net Present Valueof theforest land being diverted under thisproposal from the User Agency as perthe orders of the Hon ble SupremeCourt of India dated 28.03.2008 24.04.2008 and 09.05.2008 in WritPetitionNo. 202 1995 and theguidelines issued by the Ministry videits letter No. 5 3 2007 FC dated05.02.2009 in this regard "9.1. It is seen that the State Government has beendirected to charge the Net Present Valueof the forestland being restored to the Petitioners as per the orders of theSupreme Court of India dated 28.03.2008 24.04.2008 and09.05.2008 in Writ PetitionNo. 202 1995 and theguidelines issued by the Ministry of Environment and ClimateChange vide its letter No. 5 3 2007 FC dated 05.02.2009 inthat regard. The Petitioners have deposited the Net PresentValueand also satisfied all other conditions asattributable to the Petitioners. 9.2. On perusal of the in principal approval accorded1 on 04 05 2021 on 22 03 civil wp st 4416 21.docby the Central Government under the provisions of section 2of the ForestAct 1980 for diversion of 0.056HA of restored forest land it is seen that the approval isgranted in favour of the Petitioners for construction of foresthouse and water tank subject to fulfillment of the conditionsstated therein. Perusal of the letter of recommendationdated 27.03.2019 issued by the Chief Conservator of Forests Pune Forest Circle Pune to the Addl. Principal ChiefConservator of Forests and Nodal Officer Maharashtra StateNagpur reveals that each and every condition has beenfulfilled and complied with by the Petitioners as well as theDeputy Conservator of Forest in respect of the in principleapproval dated 05.05.2018 issued by the Ministry ofEnvironment and Climate Change. 9.3. We may also usefully extract the objections ofRespondent Nos. 1 and 3 as stated in paragraphs 12 and 13of its affidavit in reply dated 30.03.2021 which duly standanswered as alluded to herein above. Paragraph Nos. 12 and13 read thus: "12.I say that considering theabovementioned legal position Respondent No. 3 vide his letterdated 17 10 2019 recommendedRespondent No. 1 to withdraw itsearlier recommendations toRespondent No. 2 which has beenchallenged in this Writ Petition. In1 on 04 05 2021 on 22 03 civil wp st 4416 21.docview of the above submissions unless the Restoration orders dated29 12 2003 passed by the SDOMawal are regularized through Leaveof Hon ble Supreme Court in terms ofits order dated 13 11 2000 in WP337 1995 and prior approval in thatrespect is obtained by the CollectorPune from the Central Governmentunder ForestAct 1980 the Petitioner has no locus standi on the land in question havingthe legal status of reserve forests vested in the State Government freefrom all encumbrances.13.In view of the above facts andcircumstances stated herein above in view of the order 29.12.2003passed by the SDO Maval and forimplementing the said order it isrequired to take approval of theCentral Government and afterobtaining the permission of theCentral Government prior approvalof the Central Government underForestAct 1980."10. In view of the above discussion and findings it iscommon ground that formal approval of the CentralGovernment as stated in the in principle approval letterdated 05.05.2018 is required to be obtained. We may referto and extract the relevant paragraph in the said approvalletter which is relevant and reads thus: " After receipt of a report on thecompliance of conditions no.(v)toand undertakings dulyauthenticated by the competentauthority in the State Government inrespect of all other conditions from1 on 04 05 2021 on 22 03 civil wp st 4416 21.docthe State Government formalapproval will be considered in thisregard under section 2 of the Forest(Conservation) Act 1980. Thetransfer of forest land to the UserAgency shall not be affected by theState Government till formal orderapproving the diversion of forest landis issued by the CentralGovernment."10.1.On reading the above paragraph it is clearand unambiguously understood that only on fulfillment andcompliance of the 26 conditions in the in principal approvalgranted by the Ministry of Environment Forests and ClimateChange on 05.05.2018 the case for issuing formal approvalto the Petitioners under the provisions of section 2 of theForestAct 1980 shall be considered. The in principal approval further states that the transfer of forestland to the User Agency i.e the Petitioners shall not beeffected by the State Government till formal order approvingthe diversion of forest land is issued by the CentralGovernment. 10.2. Thus on consideration of the above it isclear that formal approval is still under consideration of theCentral Government and the same is yet to be granted inview of the recommendation given by the Principal ChiefConservator of Forests after considering the compliances andundertakings given by the Petitioners and considering the1 on 04 05 2021 on 22 03 civil wp st 4416 21.docrestoration order dated 29.12.2003 passed under theprovisions of section 22A of the said Act. In this background the impugned communications dated 17.10.2019 and10.02.2021 issued by Respondent No. 3 therefore need to beinterfered with and are hereby set aside since the case of thePetitioners is pending with Respondent No. 2 i.e the CentralGovernment.11.Respondent No. 2 is directed to consider thecompliance proposal dated 27.03.2019 sent by the ChiefConservator of Forests Pune Forest Circle Pune through theAddl. Chief Conservator of Forests and Nodal Officer Nagpur Maharashtra State for Stage 2 approval in respect of the saidland in accordance with law and the in principle Stage 1approval granted on 05.05.2018 and pass appropriate orderswithin a period of 16 weeks from the date of receipt of acopy of this order and inform the same to all concerned. 12.Writ Petition is accordingly disposed of in theabove terms. However there shall be no order as to costs. [ S. J. KATHAWALLA J. ]1 

Summary: When the petitioners have a no-objection letter from the concerned authority and have fulfilled the required conditions laid down for the development of a part of the land that falls under the category of the forest, the central government is to send approval under section 2 of the Forest Act, 1980. This judgment has been passed in the case of Pecry Jamshed Driver and Anr. Vs. State of Maharashtra Revenue and Forest Department and Ors. [WPST/4416/2021] by a Double Bench consisting of Hon’ble Shri Justice S. J. Kathawalla and Hon’ble Shri Justice Milind N. Jadhav. The facts of the case are that the petitioners are the owners of the land in village Aundhol, district Pune. They purchased the said land in 1998 by a registered sale deed and also conducted the requisite due diligence. They also obtained an extract that showed that the land was neither a private forest nor a reserved forest in the revenue records. In 2003 the deputy conservator of forest asked the petitioner to produce a reference under section 35(1) of the Maharashtra private forest act as to why shouldn’t be evicted from the said land. While the petitioner filed an application to the SDO under section 22A of the Act for restoration of land, they were given the same on the condition that the said land is a forest, they would need the central government’s permission to carry out non – forestry work and the order would be effective only after the government approval. The petitioner submitted a proposal for the development of a forest house, drinking water, septic tank, steel gate, and small water tank in 0.056HA out of the said land under section 2 of the Forest Act, 1980. After a fresh proposal was sent by the state government to the government of India in 2017, it received its approval in 2018. However, it also stated that without the formal approval of the Central government the land shall not pass to the user. Based on the letter dated 2007 by the state government and High Court Order the Central Government withdrew its approval. The Hon’ble High Court of Bombay opined that the only dispute condition no. (viii) laid down which made the state government responsible to college the net Present value of the forest land being converted from the user agency and the petitioners had deposited the same. Furthermore, the petitioner had satisfied all the conditions laid down and it is the central government that has to give the approval under section 2 of the Forest Act, 1980.