Is permission from the Central government necessary for land development if the collector has declared it non-forest land?

 8.2. The Petitioners have placed on record sufficient material to prove that the said lands admittedly are agricultural lands and not 'forest land'. Admittedly, there is no documentary proof available with the Respondents to establish that the said lands are "private forest" or "reserved forest". In fact, the Respondents never treated the said lands as 'forest land'. The Petitioners submit that admittedly, no notification and/or notices, either under Section 35 or 38 of the Act of 1927 or under Section 21 of the State Act were ever published and/or issued in respect of the said lands; that no entry is made in the "Golden Register" maintained by the Respondent No. 1 recording that the said lands stood acquired as "forest lands."

8.3. Section 2 of the Central Act refers to restrictions on the de-reservation of forests or use of forest land for non-forest purpose. Perusal of this Section shows that the said provision applies to forests or use of forest land for non-forest purpose and clearly implies that the land in question to which the said provision applies should be reserved forests or forest land or any portion of forest land. The said Section states that no State Government shall make except with the prior approval of the Central Government any order directing any reserved forest or any forest land or any portion thereof to be dealt with or de-reserved. It is implicit by the bare reading of the Section that the said provision applies in the case of reserved forest/forest land or any portion thereof. In the present case Respondent No. 2 - Collector by his draft speaking order dated 13.11.2011 has conclusively determined that the said lands are not forest lands. This determination is pursuant to the statutory inquiry as contemplated under the provisions of Section 6 of the State Act. This determination has been done on 13.01.2011. The State Government has not filed any Appeal challenging the decision of the Collector within the prescribed period of sixty days before the Tribunal and as such the decision of the Collector in respect of the said lands has become final. The said lands therefore cannot be deemed to be forest land/reserved forest or any portion thereof as forest for the purpose of obtaining prior approval of the Central Government for its de-reservation and use for non-forest purpose under the Central Act.

9. In the above backdrop it is stated that for the provisions of Section 2 of the Central Act to come into force, a jurisdictional fact that the land in question is a 'forest' needs to exist. If the land in question is 'not a forest', then the provisions of Section 2 of the Central Act cannot be invoked or made applicable. Section 2 of the Central Act come into play only if the subject land is a forest and not otherwise. In the present case, the decision of the Collector under the provisions of Section 6 of the 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.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 95 of 2020

Decided On: 15.03.2022

Sankalp Resorts Limited and Ors.  Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.J. Kathawalla and Milind Narendra Jadhav, JJ.

Authored By : S.J. Kathawalla, Milind Narendra Jadhav

Citation: MANU/MH/0881/2022

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Whether agricultural land can be treated as private forest land?

  In the present case, admittedly there is no declaration /

notice / notification in respect of the said lands being classified and

declared as 'private forest'. Further under the provisions of Section 2

read with Section 3 of the State Act, the said lands have to be a 'forest' before it could be classified as a 'private forest' and thereafter declared to be a 'reserved forest'. According to the Petitioners the provisions of Section 3(2) of the State Act expressly excludes land under cultivation i.e. 'agricultural land' even if it is comprised in a 'private forest'. The said lands stand outside the purview of the provisions of Section 2 of the Central Act as they are not a forest and if that be so there can be no question of de-reservation or denotification or seeking approval for the use of forest land for non-forest purpose. {Para 12}

13. The entire controversy in the present case has arisen due to

the unilateral Mutation entry No.720 recorded in the Mutation

Register pertaining to the said lands which classified the said lands as 'forest lands'; this mutation entry was solely based on the

communication dated 11.11.2005 addressed by the Respondent No.3 - Deputy Conservation of Forest to the Respondent No.2 - Collector

without any substantive basis / evidence as observed by us.

13.1. We have noted that the said Mutation entry was effected

with reference to the State Act. The Petitioners therefore filed the

statutory appeal seeking adjudication under the provisions of Section 6 of the State Act. However, once the Respondent No.2 - Collector has declared the said lands as 'not private forest' under Section 6 of the State Act, the applicability of the Central Act to the said lands does not arise. As seen, the said lands have been certified as 'agricultural lands' in the various revenue records and as such under Section 3(2) of the State Act, on this count also they cannot be deemed to be 'forest land' much less private forest land. Save and except the unilateral Mutation entry, admittedly there is no other evidence or material placed on record by the Respondents to classify, certify or notify the said lands as 'forest land'. The reasoned decision/order passed by the  Respondent No.2 - Collector declaring the said lands as 'not private forest' under the State Act therefore decides the status of the said lands.

14. Under Section 2 of the Central Act the approval of the

Central Government is necessary only if the land is a forest and if the State Government passes an order directing that any reserved forest shall cease to be reserved; or any forest land is used for non-forest purpose; or any forest land is assigned to a private person or a nongovernment organization; or any forest land may be cleared of trees or re-afforestation. Thus it is clear that for the provisions of Section 2 of the Central Act to apply, it it necessary in the first place that the said lands have to be 'forest land'. However if the said lands are not forest land then the provisions of Section 2 of the Act of 1980 are inapplicable and thus the permission sought by the Respondent No.2 - Collector from the Central Government with respect to its decision of

declaration of the said lands as 'not private forest' is wholly illegal.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 95 OF 2020

 Sankalp Resorts Limited  Vs State of Maharashtra,

CORAM : S. J. KATHAWALLA & MILIND N. JADHAV, JJ.

PRONOUNCED ON : 15.03.2022.

JUDGMENT (Per : S.J. Kathawalla & Milind N. Jadhav, JJ.)

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