2021 NearLaw (BombayHC) Online 395
Bombay High Court

JUSTICE MILIND N. JADHAV JUSTICE S. J. KATHAWALLA

Percy Jamshed Driver & Anr. Vs. State of Maharashtra & Ors.

WRIT PETITION (ST) NO. 4416 OF 2021

4th May 2021

Petitioner Counsel: Mr. Jamsheed Master Natasha Bhot
Respondent Counsel: Ms. R. M. Shinde Mr. A. M. Sethna Mr. D. P. Singh
Act Name: Maharashtra Private Forest (Acquisition) Act, 1975 Forest (Conservation) Act, 1980 Constitution of India, 1950

HeadNote : The Petitioners have challenged the validity and legality of two communications dated 17.10.2019 and 10.02.2021 issued by Respondent No3 i.e the Principal Chief Conservator of Forest, Nagpur (through its Nodal Officer) to Respondent No 1 i.e the Principal Secretary, Revenue and Forest Department, State Government of Maharashtra recommending withdrawal of the recommendation made by the State Government vide letter dated 01.06.2007 to the Central Government for seeking approval under section 2(ii) of the Forest (Conservation) Act, 1980.
By letter dated 18.10.2016, the Additional Principal Chief Conservator of Forests and Nodal Officer, Maharashtra State, Nagpur sent a reminder letter to the Addl.
By letter dated 17.10.2019, the office of the Principal Chief Conservator of Forests, Maharashtra State, Nagpur intimated the Principal Secretary (Forests), Revenue & Forest Department that the recommendations made by the State Government vide its letter dated 01.06.2007 deserve to be withdrawn in view of the order dated 13.11.2000 passed by the Hon'ble Supreme Court in Writ Petition (Civil) No 337/1995 directing that pending further orders, no dereservation of forests / sanctuaries / national park shall be affected; taking into account the provisions of section 22A of said Act and under the provisions of section 2 of the Forest (Conservation) Act, 1980 no order for restoration under section 22A can be made without approval of the Central Government; therefore, the restoration order in the case of the Petitioners' land amounted to regularization of encroachment on forest land and was bad in law.
Principal Chief Conservator of Forests and Nodal Officer addressed a letter dated 10.02.2021 to the Principal Secretary (Forests) Revenue and Forest Department, inter alia, stating that the recommendations made by the State Government vide its letter dated 01.06.2007 deserve to be withdrawn and the Collector Pune be directed to examine the case of the Petitioners on merits and seek prior approval of the Central Government under section 2(i) of the Forest (Conservation) Act, 1980 before passing restoration order.
However, there shall be no order as to costs.

Section :
Section 35(1) Maharashtra Private Forest (Acquisition) Act, 1975 Section 2 Forest (Conservation) Act, 1980 Section 2(i) Forest (Conservation) Act, 1980 Section 2(ii) of the Forest (Conservation) Act, 1980 Section 22A of the Forest (Conservation) Act, 1980

JUDGEMENT

MILIND N. JADHAV, J.

1. Heard Mr. Jamsheed Master, learned counsel for the Petitioners, Ms. R.M. Shinde, learned AGP for Respondent Nos. 1 and 3 and Mr. A.M. Sethna, learned counsel for Respondent No. 2.

2. By the present Petition filed under Article 226 of the Constitution of India, the Petitioners have prayed for the following reliefs:-
"(a) That this Hon'ble Court be pleased to quash and set aside the recommendations made in the impugned letter dated 17th October, 2019 and 10th February, 2021 by Respondent No. 3 and direct Respondent No. 1 not to act on the said recommendations;
(b) That this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or such other writ as this Hon'ble Court may deed fit to Respondent Nos. 1 and 2 to expeditiously decide the pending application under section 2 of the Forest (Conservation) Act, 1980."

3. The Petitioners have challenged the validity and legality of two communications dated 17.10.2019 and 10.02.2021 issued by Respondent No.3 i.e the Principal Chief Conservator of Forest, Nagpur (through its Nodal Officer) to Respondent No. 1 i.e the Principal Secretary, Revenue and Forest Department, State Government of Maharashtra recommending withdrawal of the recommendation made by the State Government vide letter dated 01.06.2007 to the Central Government for seeking approval under section 2(ii) of the Forest (Conservation) Act, 1980.

4. Before we advert to the submissions made on behalf of the respective parties, it would be apposite to refer to the relevant facts briefly:

4.1. Petitioners are the owners of land ad-measuring 0.056 HA out of Gat No. 199, Original Survey No. 65/2 in Village Aundholi, Taluka Maval, District Pune (hereinafter referred to as the "said land"). Petitioners purchased the said land by a registered sale deed in the year 1998 after carrying out sufficient due diligence to ascertain the legal title in the said land and also undertook a search in the office of the City Survey Department in respect of the 7/12 extract of the said land for the past 30 years prior to the date of purchase. The 7/12 extract obtained by the Petitioners showed that the said land was neither shown as private forest or reserved forest in the revenue records at any point of time.

4.2. On 23.06.2003, the Deputy Conservator of Forests, Pune Forest Division issued a reminder notice to Petitioner No. 1 giving reference to notice dated 28.02.2003 issued under section 35(1) of the Maharashtra Private Forest (Acquisition) Act, 1975 (hereinafter referred to as the "said Act") to show cause as to why the Petitioners should not be evicted from the said land for unauthorized encroachment on forest land and cancellation of any permission / licences granted to the Petitioners. By letter dated 27.06.2003 Petitioners replied to the above notice stating that the Petitioners were not aware of any acquisition proceedings in respect of the said land and at the time of purchase of the said land in the year 1996 there was no such embargo or encumbrance stated in the land record pertaining to the said land.

4.3. On 18.07.2003, Petitioner No. 1 filed an application before the Sub-Divisional Officer (SDO), Maval (hereinafter referred to as the "SDO, Maval") under the provisions of section 22A of the said Act for restoration of the said land in favour of the Petitioners by enclosing the necessary documentation. On 19.08.2003, the SDO, Maval addressed a letter to Tehsildar, Maval for carrying out the inquiry and submit a report in respect of the Petitioners' holding and application seeking restoration and submit the same 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 if the Petitioners were eligible for seeking restoration under section 22A of the said Act.

4.5. By order dated 29.12.2003, SDO, Maval passed order of restoration under the provisions of section 22A of the said Act in favour of the Petitioners after following the due process of law subject to the following conditions to be complied by the Petitioners viz; (i) status of the land shall remain forest; (ii) prior permission of Central Government will be required to carry out any non-forestry work and (iii) the order will be implemented after the approval of Government of India and entry on 7/12 extract shall be made accordingly.

4.6. On 25.04.2004, Petitioners submitted a proposal under section 2 of the Forest (Conservation) Act, 1980 for diversion of 0.056 HA out of the restored land for development of forest house (bungalow), drinking water tank, septic tank, steel gate and small water tank on the said land. By this application, approval of the Central Government was sought by the Petitioners through the Deputy Conservator of Forests. By letter dated 02.12.2006, the Chief Conservator of Forests and Nodal Officer, Maharashtra State, Nagpur recommended the Petitioners' proposal for sanction to the Principal Secretary (Forest) Department, State Government of Maharashtra to move the Government of India for obtaining approval.

4.7. By recommendation letter dated 1.6.2007, a detailed proposal was sent by the State Government to the Regional Chief Conservator of Forests, Government of India, Ministry of Environment and Forests for placing the same before the Government of India for its approval under section 2(ii) of the Forest (Conservation) Act, 1980.

4.8. By letter dated 18.10.2016, the Additional Principal Chief Conservator of Forests and Nodal Officer, Maharashtra State, Nagpur sent a reminder letter to the Addl. Principal Chief Conservator of Forests (Central), Government of India, Ministry of Environment, Forests and Climate Change stating that approval was awaited from the Central Government in respect of the Petitioners' proposal for diversion of 0.056 HA forest land for construction as forwarded by the Government of Maharashtra.

4.9. By letter dated 20.02.2017, the Government of India, Ministry of Environment, Forests and Climate Change informed the State Government of Maharashtra that the proposal was kept on hold for further scrutiny and if the State Government was still interested in taking up the project, a fresh proposal to reconsider the proposal for approval may be submitted by the State Government with the updated information on the proposal as called for alongwith all supporting documentation.

4.10. On 27.12.2017, the Deputy Conservator of Forests, Pune submitted a fresh proposal to the Chief Conservator of Forests, Pune by updating the information as called for alongwith all supporting documentation.

4.11. On 26.03.2018, the Principal Chief Conservator of Forests (Head of Forest Force) Maharashtra State, Nagpur addressed a detailed letter along with the compliance report on the queries raised by the Government of India vide its letter dated 20.02.2017 requesting to consider the proposal for reopening and move the Government of India for its approval under the provisions of section 2(ii) of the Forest (Conservation) Act, 1980.

4.12. On 5.5.2018, the Government of India, Ministry of Environment Forests and Climate Change accorded in-principle approval under section 2 of the Forest (Conservation) Act, 1980 for diversion of 0.056 HA of restored forest land in favour of Petitioner No. 1 for construction of forest house and water tank in Pune district in the State of Maharashtra subject to conditions stated in the letter of approval. The said approval letter stated that after receipt of the report on the compliance of condition nos. (ii), (v) to (viii), (x) and undertakings duly authenticated by the competent authority in the State Government, formal approval will be considered under the provisions of section 2 of the Forest (Conservation) Act, 1980 further stating that transfer of forest land to the user agency shall not be effected by the State Government till formal order approving the diversion of forest land is issued by the Central Government.

4.13. On 27.03.2019, Office of the Chief Conservator of Forests, Pune Forest Circle, Pune addressed a detailed compliance report / letter to the Addl. Principal Chief Conservator of Forests and Nodal Officer, Maharashtra State, Nagpur, inter alia, stating that the conditions enumerated in stage 1 approval letter dated 05.05.2018 were fulfilled by the User Agency i.e the Petitioners and the Deputy Conservator of Forests, Pune and all undertakings and recommendations were submitted for seeking / forwarding the case for stage 2 approval i.e formal approval under the Forest (Conservation) Act, 1980.

4.14. By letter dated 17.10.2019, the office of the Principal Chief Conservator of Forests, Maharashtra State, Nagpur intimated the Principal Secretary (Forests), Revenue & Forest Department that the recommendations made by the State Government vide its letter dated 01.06.2007 deserve to be withdrawn in view of the order dated 13.11.2000 passed by the Hon'ble Supreme Court in Writ Petition (Civil) No. 337/1995 directing that pending further orders, no dereservation of forests / sanctuaries / national park shall be affected; taking into account the provisions of section 22A of said Act and under the provisions of section 2 of the Forest (Conservation) Act, 1980 no order for restoration under section 22A can be made without approval of the Central Government; therefore, the restoration order in the case of the Petitioners' land amounted to regularization of encroachment on forest land and was bad in law. A copy of this letter was endorsed to Petitioner No. 1. This communication is impugned in the present petition.

4.15. Petitioners through their Advocate addressed a detailed reply dated 12.12.2020 to the above letter dated 17.10.2019. It was stated that the Central Government had issued its in-principle approval on 05.05.2018 and the Petitioners had complied with all conditions contained therein, despite which, without giving an opportunity to the Petitioners the recommendation for withdrawal of restoration order was made. The Addl. Principal Chief Conservator of Forests and Nodal Officer addressed a letter dated 10.02.2021 to the Principal Secretary (Forests) Revenue and Forest Department, inter alia, stating that the recommendations made by the State Government vide its letter dated 01.06.2007 deserve to be withdrawn and the Collector Pune be directed to examine the case of the Petitioners on merits and seek prior approval of the Central Government under section 2(i) of the Forest (Conservation) Act, 1980 before passing restoration order. This letter is also impugned in the present petition.

4.16. Being aggrieved, the Petitioners have approached this Court.

5. Mr. Jamsheed Master, learned counsel appearing for the Petitioners, at the outset, submitted that the restoration order has not been withdrawn by any of the impugned communications, save and except that both the impugned communications recommend withdrawal of the restoration order. He submitted that on 05.05.2018, the Government of India granted in-principle approval after taking into consideration the recommendation letter dated 18.10.2016 for seeking approval under section 2 of the Forest (Conservation) Act, 1980 subject to fulfillment of certain conditions. He submitted that Petitioners have fulfilled the prescribed conditions including payment of the Net Present Value (NPV) and filing of all undertakings and only thereupon, the Chief Conservator of Forests (Territorial) has recommended the Petitioners' case for Stage 2 approval. In view thereof, the impugned communications dated 17.10.2019 and 10.02.2021 issued by Respondent No. 3 attempt to put the clock back without the restoration order having being revoked cannot be permissible in law.

5.1. He submitted that the restoration order dated 29.12.2003 categorically states that the said order is subject to the outcome of the pending Civil Writ Petition No. 337 of 1995 before the Hon'ble Apex Court; that the Petitioners had given the undertakings as called for and the same is also stated in the in-principle approval letter granted by the Government of India dated 05.05.2018; thereafter the action on the part of the Forest Department to recommend reversal of the previous permission after a period of 14 years is malafide on the face of record and in the facts and circumstances of the Petitioners' case.

5.2. He further submitted that the impugned recommendation / letters dated 17.10.2019 and 10.02.2021 have been passed in gross violation of the principles of natural justice without issuing any notice or giving an opportunity of hearing to the Petitioners and in complete disregard of the in-principle approval dated 05.05.2018 granted by the Government of India to the Petitioners; the doubts expressed in the impugned communications were already considered by the predecessor-in-office of Respondent No. 3 while issuing the restoration order dated 29.12.2003 in accordance with law. He therefore submitted that the reliefs prayed for in the petition be allowed.

6. PER CONTRA, Ms. R.M. Shinde, learned AGP appearing on behalf of Respondent Nos. 1 and 3 has drawn our attention to the affidavit-in-reply dated 30.03.2021 filed by Aashutosh Ganpat Shendge, Assistant Conservator of Forest, Pune (on behalf of Respondent Nos. 1 and 3) and contended that though the legal status of the said land is that of private forest within the meaning of the said Act which came into force on 30.08.1975, section 22A inserted by an amendment in the year 1978 authorized the Collector to restore to the owner upto 12 ha. of private forests which stood vested as deemed reserved forests in the State Government by virtue of sub-sections (1) and (3) of section 3 of the said Act. She submitted that with effect from the date of the restoration order under section 22A, such restored forest land ceased to be reserved forest within the meaning of the Indian Forest Act, 1927. She submitted that while formulating the proposal of the Petitioners to the Government of Maharashtra, the Principal Chief Conservator of Forests has given his specific recommendation and is reproduced in paragraph 10 of the affidavit-in-reply which reads thus:-
"The restoration order No. MSC/Appeal/13/2013 dated 29/12/2003 under Maharashtra Private Forests (Acquisition) Act, 1975 of Sub-Divisional Officer, Maval, Pune can be affected only after the due clearance of Government of India and after ban of dereservation of forest land imposed by Hon'ble Supreme court vide order dated 13/11/2000 in W.P. No. 337/1995 is lifted."

6.1. She submitted that perusal of the above condition states that the restoration order dated 29.12.2003 can be effected only after due clearance by the Government of India and after ban of dereservation of forest land imposed by the Hon'ble Supreme Court vide order dated 13.11.2000 in Civil Writ Petition No. 337/1995 is lifted. She, therefore, submitted that unless the restoration order dated 29.12.2003 passed by SDO, Maval is regularized through leave of the Hon'ble Supreme Court and prior approval in that respect is obtained from the Central Government under the Forest (Conservation) Act, 1980, the Petitioners have no locus standi in the said land till such approval is obtained.

7. Mr. Sethna, learned counsel appearing for Respondent No. 2 submitted that in the event if the State Government recommends the proposal of the Petitioners by following the due process of law, Respondent No. 2 shall consider the same appropriately and issue appropriate approval / sanction in accordance with law.

8. Submissions made by the respective counsel are on pleaded lines and have received the due consideration of the Court. Material on record has also been perused.

9. At the outset, it is not disputed that the proposal of the Petitioners has been recommended in accordance with law by the Principal Chief Conservator of Forests and Nodal Officer, Revenue and Forests Department Government of Maharashtra. It is also an undisputed position that Government of India has granted in-principle approval on 05.05.2018 taking into consideration the above recommendation and various other issues and laid down compliance of 26 conditions by the Petitioners and the Deputy Conservator of Forests therein. Condition No. (viii) is relevant to the present issue and answers the doubt raised by Respondent Nos. 1 and 3 in its affidavit-in-reply in so far as obtaining leave of the Supreme Court is concerned. The said condition No. (viii) is extracted and reads as under:-
"The State Government shall charge the Net Present Value (NPV) of the forest land being diverted under this proposal from the User Agency as per the orders of the Hon'ble Supreme Court of India dated 28.03.2008, 24.04.2008 and 09.05.2008 in Writ Petition (Civil) No. 202/1995 and the guidelines issued by the Ministry vide its letter No. 5-3/2007-FC dated 05.02.2009 in this regard;"

9.1. It is seen that the State Government has been directed to charge the Net Present Value (NPV) of the forest land being restored to the Petitioners as per the orders of the Supreme Court of India dated 28.03.2008, 24.04.2008 and 09.05.2008 in Writ Petition (Civil) No. 202/1995 and the guidelines issued by the Ministry of Environment and Climate Change vide its letter No. 5-3/2007-FC dated 05.02.2009 in that regard. The Petitioners have deposited the Net Present Value (NPV) and also satisfied all other conditions as attributable to the Petitioners.

9.2. On perusal of the in-principal approval accorded by the Central Government under the provisions of section 2 of the Forest (Conservation) Act 1980 for diversion of 0.056 HA of restored forest land, it is seen that the approval is granted in favour of the Petitioners for construction of forest house and water tank subject to fulfillment of the conditions stated therein. Perusal of the letter of recommendation dated 27.03.2019 issued by the Chief Conservator of Forests, Pune Forest Circle, Pune to the Addl. Principal Chief Conservator of Forests and Nodal Officer, Maharashtra State Nagpur reveals that each and every condition has been fulfilled and complied with by the Petitioners as well as the Deputy Conservator of Forest in respect of the in-principle approval dated 05.05.2018 issued by the Ministry of Environment and Climate Change.

9.3. We may also usefully extract the objections of Respondent Nos. 1 and 3 as stated in paragraphs 12 and 13 of its affidavit-in-reply dated 30.03.2021 which duly stand answered as alluded to herein above. Paragraph Nos. 12 and 13 read thus:-
"12. I say that, considering the abovementioned legal position, Respondent No. 3 vide his letter dated 17/10/2019 recommended Respondent No. 1 to withdraw its earlier recommendations to Respondent No. 2, which has been challenged in this Writ Petition. In view of the above submissions, unless the Restoration orders dated 29/12/2003, passed by the SDO Mawal are regularized through Leave of Hon'ble Supreme Court in terms of its order dated 13/11/2000 in WP 337/1995 and prior approval in that respect is obtained by the Collector Pune from the Central Government under Forest (Conservation) Act, 1980, the Petitioner has no locus-standi on the land in question having the legal status of reserve forests, vested in the State Government, free from all encumbrances.
13. In view of the above facts and circumstances stated herein above, in view of the order 29.12.2003 passed by the SDO Maval and for implementing the said order, it is required to take approval of the Central Government and after obtaining the permission of the Central Government, prior approval of the Central Government under Forest (Conservation) Act, 1980."

10. In view of the above discussion and findings, it is common ground that formal approval of the Central Government as stated in the in-principle approval letter dated 05.05.2018 is required to be obtained. We may refer to and extract the relevant paragraph in the said approval letter which is relevant and reads thus:-
"After receipt of a report on the compliance of conditions no. (ii), (v), (viii) to (x) and undertakings duly authenticated by the competent authority in the State Government, in respect of all other conditions, from the State Government, formal approval will be considered in this regard under section 2 of the Forest (Conservation) Act, 1980. The transfer of forest land to the User Agency shall not be affected by the State Government till formal order approving the diversion of forest land is issued by the Central Government."

10.1. On reading the above paragraph, it is clear and unambiguously understood that only on fulfillment and compliance of the 26 conditions in the in-principal approval granted by the Ministry of Environment, Forests and Climate Change on 05.05.2018, the case for issuing formal approval to the Petitioners under the provisions of section 2 of the Forest (Conservation) Act, 1980 shall be considered. The in-principal approval further states that the transfer of forest land to the User Agency i.e the Petitioners shall not be effected by the State Government till formal order approving the diversion of forest land is issued by the Central Government.

10.2. Thus, on consideration of the above, it is clear that formal approval is still under consideration of the Central Government and the same is yet to be granted in view of the recommendation given by the Principal Chief Conservator of Forests after considering the compliances and undertakings given by the Petitioners and considering the restoration order dated 29.12.2003 passed under the provisions of section 22A of the said Act. In this background, the impugned communications dated 17.10.2019 and 10.02.2021 issued by Respondent No. 3 therefore need to be interfered with and are hereby set aside since the case of the Petitioners is pending with Respondent No. 2 i.e the Central Government.

11. Respondent No. 2 is directed to consider the compliance proposal dated 27.03.2019 sent by the Chief Conservator of Forests, Pune Forest Circle, Pune through the Addl. Chief Conservator of Forests and Nodal Officer, Nagpur, Maharashtra State for Stage 2 approval in respect of the said land in accordance with law and the in-principle Stage 1 approval granted on 05.05.2018 and pass appropriate orders within a period of 16 weeks from the date of receipt of a copy of this order and inform the same to all concerned.

12. Writ Petition is accordingly disposed of in the above terms. However, there shall be no order as to costs.