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"Wrongly Denied Benefits For A Decade" - Central Govt's Permission Not Necessary For Development Once Collector Opines Land 'Not A Forest':Bombay HC

Sharmeen Hakim
18 March 2022 8:59 AM GMT
Wrongly Denied Benefits For A Decade - Central Govts Permission Not Necessary For Development Once Collector Opines Land Not A Forest:Bombay HC
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Once the Collector (even in a draft speaking order) opines that a privately owned land parcel is not a "private forest," the Central Government's permission under the Forest (Conservation) Act, 1980 is unnecessary to exploit the land for development, the Bombay High Court has held. A division bench of Justices SJ Kathawalla and Milind Jadhav observed that the Central Act would apply...

Once the Collector (even in a draft speaking order) opines that a privately owned land parcel is not a "private forest," the Central Government's permission under the Forest (Conservation) Act, 1980 is unnecessary to exploit the land for development, the Bombay High Court has held.

A division bench of Justices SJ Kathawalla and Milind Jadhav observed that the Central Act would apply only when a forest land is to be used for non-forest purposes, like when a project is to be set up on the forest land, and particulars of the proposed project are to be set out.

Thus, the bench set aside the Pune Collector's draft speaking order holding a land parcel in Lonavala "not a private forest" to the limited extent that it imposed a condition requiring permission from the Centre under Section 2 of the Forest (Conservation) Act, 1980 before the Collector passed the final order.

"In the present case, the decision of the Collector under the provisions of Section 6 of the Maharashtra Private Forests (Acquisition) Act, 1975 (State Act) adjudicating that the said lands are 'not private forest' having become final, the State Government cannot invoke the provisions of Section 2 of the Central Act for seeking de-reservation of the said lands." the bench held.

Facts of the Case

The petitioners Sankalp Resorts Limited owned six land parcels (total 13 hectares) in Lonavala, a hill station outside Mumbai and had decided to develop the land, and engaged Emerald Acres Private Limited for that purpose.

However, in November 2005 the Deputy Conservator of Forest issued a letter to the Tehsildar stating therein that the land was transferred to State under the Maharashtra Private Forests (Acquisition) Act, 1975 and the Rules formulated thereunder and any construction work (non-forest activities) would require the Centre's permission. The Conservator also ordered a mutation in the land records by which the land became 'forest land.'

After this the petitioners approached the Collector under Rule 6 of the state Act, on January 1, 2011, the Collector in a draft order said that the land is 'not a private forest,' and referred the matter to the Central Government for permission.

Between 2011-18, the petitioners wrote 25 letters to the various authorities and received two letters in response stating therein that their application was pending.

Aggrieved by the inaction the petitioners approached the HC for relief.

Senior Counsel Virag Tulzapurkar argued that the Central Government's permission is not required under Section 2 of the Central Act of 1980 for correction or rectification of an incorrect mutation entry in respect of a land which was never designated or classified as 'forest land.'

Neither did the State take any steps to acquire the land or even issue notices intimating about the acquisition under Section 35 of the Indian Forest Act, 1927, nor was the land referred to as a reserved forest.

Advocate Ashutosh Kulkarni for the State and forest department submitted that till the Central Government doesn't grant permission, the land will continue to be a deemed forest. The collector's draft order had no force in law without the Centre's agreement, as the Collector would pass the final order only thereafter.

Observations

At the outset the bench said that the status of the forest, where it is a 'forest land', 'private forest' or 'reserved forest' is clarified by the collector wherein he held it is 'not private forest'.

Section 2 of the Central Act deals with de-reservation of forests or use of forest land for non-forest purpose. According to the Section the State Government shall not pass any orders regarding forests, especially regarding its de-reservation without the Centre's prior approval.

However, in the present case, after a statutory inquiry the Collector held that the land is "not a private forest" therefore, provisions of the Central Act would not apply. Moreover, the land was never a forest in the Centre's records or State records prior to the 2005 letter, the court noted.

The court further said that the Collector's order was not challenged and had become absolute.

The court cited the following reasons to State the that land parcel is neither a forest nor a private forest,

1.The State Act defines forest in Section 2(c-i) and private forest in section 2(f), making both separate.

2.Mutation entry was made with reference to the State Act therefore provisions of the State Act alone would be attracted.

3.Documentary evidence on record states and establishes that the said lands are 'agricultural lands' and 'not forest' and the said documents were produced before the Collector.

4."The State's argument, if accepted, would lead to an absurd and anomalous situation, and will defeat the scheme of the State Act. A 'forest' belonging to a private person is a 'private forest', and thus, when a private party objects to his land being declared a 'private forest', he is also objecting to it being declared a 'forest'."

The court said that it cannot be that even when a party has succeeded under Section 6 of the State Act, his private land will continue to be a 'forest'.

The court noted that for 11 years the State didn't even submit the petitioner's application to the Central Government. "The Petitioners have been wrongly denied the benefit of the said lands for the last decade on a completely false and erroneous premise that the Petitioners' case was pending approval / permission from the Central Government under the provisions of Section 2 of the Central Act," the court observed.

"In view of the above discussion and findings, it is held that the provisions of Section 2 of the Central Act do not apply to the said lands, hence the contention of the State Government that the approval / permission of the Central Government is required for confirming the declaration arrived at by the Collector is wholly erroneous," the court noted.

The court held that the Central Government's approval is not a condition precedent for the Collector to pass a final order.

Case Title: Sankalp Resorts Limited and anr v State of Maharashtra and ors

Citation: 

Click Here To Read/Download Judgment

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