Madhya Pradesh High Court
Anand V.Bhardwaj vs The State Of Madhya Pradesh on 12 January, 2017
1 WP.4869.2009 (PIL)
12/1/2017
Shri V.K. Bharadwaj Sr. Advocate with Shri Raju
Sharma, Advocate for the petitioner.
Smt. Nidhi Patankar, Govt. Advocate for the
respondents/State.
Shri Vivek Khedkar Assistant Solicitor General for the respondent no. 8.
1. An additional reply by way of an affidavit has been filed on 19/12/2016 in purported compliance of the order dated 27.10.2016 and 15.11. 2016 which permitted the Additional PCCF, Regional Office Bhopal to seek clarification from the Apex Court in the pending writ petition no. 202/1995 titled as T. Godavarman in regard to the piece of land bearing Survey nos. 274, 275, 276, 283 and 284 (3.629 hectares) adjacent to the under construction building of the District Court, Gwalior which is earmarked as forest land.
2. Shri Vivek Khedkar learned ASGI submits that in view of the recent amendment in The Forest (Conservation) Rules, 2003 vide notification dated 10th of October, 2014, there is no need for seeking clarification from the Ministry of Environment & Forest, New Delhi. However learned counsel has expressed his inability to grant any further permission for change of use from forest land to non-forest in view of the Clause 4.5 (ii) of the Guidelines issued by Ministry of Environment & Forest, New Delhi.
3. This court by a detailed order dated 27th October, 2016 had held that Guidelines cannot supersede the Forest (Conservation) Rules, 2003 which categorically empower the Regional Office at Bhopal of Ministry of Environment & Forest, New Delhi to grant sanction for change of use from forest to non-forest purpose of land upto five (5) hectares.
4. Admittedly the office at Bhopal has granted permission upto one (1) hectare but has expressed it's inability to 2 WP.4869.2009 (PIL) proceed ahead from granting sanction for land in excess of one (1) hectare in view of the bar contained under Clause 4.5 (ii) of Guidelines issued by the said Ministry.
5. In view of the rule position having been clarified by this court by order dated 27/10/2016, Additional PCCF, Regional Office at Bhopal, Ministry of Environment, Forest Climate Change, Government of India, New Delhi is very much empowered to grant permission for change of use of forest land to non forest purpose for the remaining 3.629 hectares of land adjoining the under construction District Court building at Gwalior.
6. Learned ASGI further submits that permission of the Ministry at New Delhi would be required for the said area of 3.629 hectares.
7. This court leaves it upon the respondents to seek/grant permission for change of use from the higher authority but since the rule position has been clarified and the competency of the Regional Office at Bhopal is not doubted there is no reason for the said authority to shy away from passing appropriate order in public interest.
8. Accordingly this court is compelled to direct that if the appropriate order for change of use of 3.629 hectares from forest to non-forest purpose is not passed before the next date of hearing, the Secretary of Ministry of Environment, Forest and Climate Change, Government of India, New Delhi shall appear in person before this court to explain the default.
9. The above said order of personal appearance is being passed since it is noticed that despite deposit of requisite fee for conversion of the usage of land in question the case is pending between the Regional Office of the Ministry at Bhopal and the Ministry at New Delhi who are both passing the buck to each other since the last more than two years 3 WP.4869.2009 (PIL) with no noticeable progress in the case thereby delaying the completion of the work of construction of new District Court building at Gwalior whose completion is hopelessly behind schedule.
10. As regards Survey numbers 273, 265 and 264, the State was directed to file affidavit disclosing status of ownership which has not been done yet. If the compliance is not made by the State by the next date of hearing, the Collector, Gwalior shall remain personally present to explain the default.
11. As regards I.A. No. 4672/2015 seeking direction for providing facility of underground parking at the under construction District Court building at Gwalior is concerned, it is undisputed that the said building does not have any underground parking facility and therefore provision for underground parking needs to be made under the open available land of the said building.
12. Admittedly, the layout sanctioned by the State has not earmarked any provision for under ground parking which has now become a necessity in view of ever increasing vehicular traffic.
13. Accordingly, the State is directed to consult the Official Architect for making fresh amended plan/layout facilitating under ground parking. Let the same be done before the next date of hearing and compliance report in that regard be filed failing which coercive steps will be taken against the concerned authority.
14. List the case on 23rd of February, 2016.
Copy of the order be supplied free of cost to the State counsel and as well as to the ASGI.
(Sheel Nagu) (S.A. Dharmadhikari)
Judge Judge