04 May 2121

Transfer of the forest land to the user agency shall not be affected by the state government till formal order is issued by the Central Government under Section 2 of Forest Conservation Act 1980 - Bombay High Court

Case : Percy Jamshed Driver and Ors. v. State of Maharashtra and Anr. Writ Petition (ST) No. 4416 of 2021

Court : Bombay High Court

Bench : Justice S. Kathawalla & Justcie Milind N. Jadhav

Decided on : 04 May 2121

Relevant Statutes

Sections 22 A and Section 35(1) of the Maharashtra Private Forest Acquisition Act, 1975

Section 2 of Forest Conservation Act, 1980

Procedural History and Brief Facts

1. The Petitioners are the owners of the land ad-measuring 0.056 HA out of Gat No. 199 in Village Aundholi, Taluka Maval, District Pune, which was registered in the year 1998 and also undertook the search in respect of the 7/12 extract of the said land which was obtained by the petitioners and it was shown that the said land was neither shown as private land or reserved forest in the revenue records at the point of time.

2. On 23.06.2003, the Deputy Conservator of the Forest, Pune issued a notice to the petitioner to show because why he should not be evicted from the said land under Section 35(1) of the Maharashtra Private Forest Acquisition Act, 1975 for unauthorized encroachment on forest land and cancellation of any permission/licenses granted to the petitioner, which the petitioner replied and stated that he was not aware of the acquisition proceedings and also there was no encumbrance stated in the land record.

3. On 18.07.2003, the petitioner filed a petition before Sub Divisional Officer, Mala for restoration of the land under Section 22 A of the Maharashtra Private Forest Acquisition Act, 1975. On 29.12.2003. The Sub Divisional Officer, Mala passed the order of restoration after the due process of law with some conditions. 

4. On 25.04.2004, The Petitioner submitted a proposal under Section 2 of Forest Conservation Act 1980 for diversion of 0.056 HA out of the restored land for development of forest house, drinking water and small water tank. The Petitioner through the Deputy Conservator of Forest sought the approval of the Central Government.

5. Afterwards on 5.5.2018, the Government of India, Ministry of Environment and Forests and Climate Change accorded in-principle approval subject to some conditions. The Approval stated that after the receipt of the report on compliance with the conditions and duly authenticated by the competent authority, the formal approval shall be considered. It was also stated that the Transfer of the forest land to the user agency shall not be affected by the state government till a formal order is issued by the Central Government. It was stated that conditions that were specified were fulfilled by the User Agency i.e. the Petitioner and the Deputy Conservator of Forests, Pune and all the undertakings were also submitted. 

6. The office of the Principal  Chief  Conservator of Forests intimated by the order dated 10.2.2021 to the Principal Secretary (Forests) that the recommendations made by the State Government should be withdrawn as per the order by the Honourable Supreme Court and stated that the order of restoration amounted to regularization of encroachment on forest land and order for restoration cannot be made without the approval of Central Government under Section 22 A of the Maharashtra Private Forest Acquisition Act, 1975 and Section 2 of Forest Conservation Act 1980.  The petitioner challenged the validity of two impugned communications dated 17.10.2019 and 10.02.2021

The Issue of the Case

Whether the order for restoration of the property amounted to regularization of the encroachment on forest land or the order for restoration deserved to be withdrawn? 

The Observations of the Court

1. The Honourable Bombay High Court observed that there is no dispute about the proposal of the Petitioners which have been recommended in accordance with the law by the Principal Chief Conservator of forest and Nodal officer in accordance with the law and also the government has granted principle approval on 05.05.2018  and various other issues laid down by the Petitioner and the Deputy conservator of Forests.

2. The Honourable High Court observed that the Petitioners have deposited the Net Present Value directed by the state as per the orders of Supreme Court of India dated 28.03.2008, 24.04.2008 and 09.05.2008 and also fulfilled all the conditions which were specified for the construction of forest house and water tank related to in-principle approval granted in favour of the petitioner.

3. The Honourable High Court observed that the issuing of the formal approval to the petitioner under Section 2 of Forest Conservation Act 1980 shall be considered only on the fulfilment of 26 conditions in the in-principal approval granted by the Ministry of Environments, Forest and Climate Change on 05.05.208. The Honourable High Court held that formal approval is still in the consideration of the Central government i.e. the Petitioner case is pending with the Central Government.

The Decision Held by the Court

1. Writ Petition is disposed of and the impugned communication order dated 17.10.2019 and 10.02.2021 are hereby set aside.

2. Respondent No. 2 is directed to consider the proposal dated 27.03.2019 and pass appropriate orders within 16 weeks from the date of receipt of the copy of this order.

Click here to view/download the judgement >