Bombay High Court
Prism Johnson Limited Through ... vs Union Of India Through Ministry Of ... on 15 February, 2023
Bench: R.D. Dhanuka, M.M. Sathaye
2023:BHC-AS:383-DB
906 WP 3409 OF 2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3409 OF 2021
Prism Johnson Limited Through Corporate
Office At Kalina, Santacruz East Mumbai ...Petitioner
Versus
Union Of India Through Ministry Of Forest
And Climate Change, New Delhi And Ors. ...Respondents
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Dr.Milind Sathe, Senior Advocate a/w Mr.Saket Mone, Mr.Subit
Chakrabarti, Mr.Abhishek Salian i/b.Vidhii Partners for the
Petitioner.
Mrs.M.S. Bane, AGP for Respondent No.2 to 5.
Ms.Sheetal Shah a/w. Jeyhaan Karnac i/b. Mehta and Girdharlal
for Respondent No.6.
Mr.R.A. Rodrigues a/w.Mr.A.A. Garge, for Respondent No.1.
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CORAM : R.D. DHANUKA &
M.M. SATHAYE, JJ.
DATED : 15th FEBRUARY, 2023 P.C. :
1. Rule. Mrs.Bane, learned AGP waives service for Respondent No.2 to 5. Mr.Rodrigues, learned counsel waives service for Respondent No.1. Ms.Shah, learned counsel waives service for Respondent No.6. Rule is made returnable forthwith.
By consent of the parties, the matter is taken up for final hearing.
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2. By this petition, filed under Article 226 of the Constitution of India, the Petitioner seeks a Writ of Mandamus thereby directing the Respondents Authorities to remove the mangroves present on property admeasuring 12.5 acres (5.03 hectares) situated at Gut Nos.40/2, 42, 43, 44, 45, 46/1, 47 to 51, 53 and 58, by granting leave as contemplated in the Judgment and Order dated 17th September, 2018 in Public Interest Litigation No.87 of 2006.
3. In the alternative, the Petitioner prays for a Writ of Mandamus directing Respondents-Authorities not to insist on the condition of prior leave of this Court in terms of Interim Order dated 27th January, 2010 in PIL No.87 of 2006, as imposed vide letter dated 21st July, 2016 issued by the Respondent No.3 and seeks an order/direction against Respondent Authorities to implement the letter/scheme dated 25th September, 2020 issued by Respondent No.4.
4. It is the case of the Petitioner that he is entitled to land admeasuring 135.15 acres at Village Khardevali, Kharkaravi and Karavi (Gadab), Taluka Pen, District Raigad. The Petitioner became entitled to the said property by virtue of permission Husen Page 2 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 ::: 906 WP 3409 OF 2021.doc dated 6th March, 1995 issued by the Office of Development Commissioner, State of Maharashtra. The portion of the property admeasuring 12.5 acres was transferred to the Forest Department of the State of Maharashtra for carrying out compensatory afforestation.
5. The Petitioner applied for area clearance under the Forest (Conservation) Act, 1980 for non forest use of 4.98 Hectares of private forest land in Survey No.151 of Village Kadawal in Sindhudurg District. The Respondent No.1 granted Stage-I forest clearance under Section 2 of the said Act on 06.07.2008. As part compliance of the conditions of forest clearance the Petitioner transferred 5.3 Hectares land for non forest land in survey No.40/2, 42, 43, 44, 45, 46/1, 47 to 51, 43 & 58 situated inside the manufacturing plant premises of the Petitioner in Village Khardevali in District Raigad to the Forest Department of Maharashtra as compensatory land for undertaking Compensatory Afforestation.
6. The Petitioner had also deposited amount of Rs.57,57,023/- towards Net Present Value, Cost of Compensatory Afforestation and other associated costs with Husen Page 3 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 ::: 906 WP 3409 OF 2021.doc Forest Department, Government of Maharashtra. As per condition of Stage-I approval given by the Respondent No.1, the non-forest land is transferred to Forest Department for the purpose of Compensatory Afforestation. The Respondent No.2 thereafter issued Stage-II approval on 07.05.2007 for non-forest use of 4.98 Hectares of the private forest land.
7. It is the case of the Petitioner that upon commencement of mining operations during 2007, the Petitioner found that quality of the mineral available in the private forest land diverted for the purpose was of inferior quality and material could not be used for manufacture of ceramic tiles. The Petitioner accordingly stopped the mining operation in March, 2009. Since the forest land was not required by the Petitioner for the purpose of which it was diverted, the Petitioner made a request to the Forest Department on 14.03.2012 to transfer back/retransfer the Compensatory Afforestation land admeasuring 5.03 Hectares which was handed over to the Maharashtra Forest Department.
8. The Petitioner also requested the Respondent No.1 not to proceed with the Notification of non-forest land transferred to the Forest Department for Compensatory Afforestation and to Husen Page 4 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 ::: 906 WP 3409 OF 2021.doc maintain status quo of the compensatory land and not to declare the same as Reserved Forest. The Petitioner by a letter dated 08.03.2015 requested the Principal Secretary Revenue and Forest Department, Government of Maharashtra for cancellation of the diversion of 4.98 Hectares of forest land and restoration of 5.03 Hectares of the Compensatory land transferred to the Forest Department for Compensatory Afforestation. The Principe Chief Conservator of Forests, Nagpur vide letter dated 21.07.2016 recommended to the Principal Secretory, Revenue and Forests Government of Maharashtra for restoration/retransfer of non-forest land/compensatory land on various conditions. One of the conditions imposed under in the said letter was that for cutting of mangroves planted for Compensatory Afforestation by Forest Department the user agency has to obtain permission of this Court, in view of the order passed by this Court, in PIL No.87 of 2006 on 27.01.2010. The Petitioner accordingly applied for permission to this Court.
9. The Central Empowered Committee had submitted a report before the Supreme Court in Interim Application No.108894 of 2018. In the said report, after giving the entire background of the matter, the said committee opined that the Husen Page 5 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 ::: 906 WP 3409 OF 2021.doc project of extraction of the mineral required for manufacturing of ceramic tiles has been abandoned by the Petitioner on the ground of non availability of quality raw material and for various reasons. It was opined that the non-forest land diverted for Compensatory Afforestation has not been notified under the Forest Act. In the said report, it was recommended that the this Court may consider conveying its approval of restoration of 5.03 Hectares non-forest land in Survey 40/2, 42, 43, 44, 45, 46/1, 47 to 51, 53 and 58 situated inside manufacturing plant premises of the Petitioner in Village Kahardevi in Raigad District.
10. Based on the said report, the Supreme Court passed an Order on 05.08.2019 and after perusal of the said report held that, there was no reason why the land belonging to the Petitioner should be withheld from him and accordingly, directed that the subject land shall be restored to the Petitioner within a period of one month from the date of the said Order. The said land was thereafter handed over to the Petitioner. The Petitioner, however, found that there were mangroves grown up on the said plot by the Forest Department. The Petitioner is not in a position to carry out any activities on the said plot. Husen Page 6 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 :::
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11. Dr.Sathe, learned senior counsel for the Petitioner invited our attention to various orders passed by this Court from time to time and correspondence exchanged between the parties. He submitted that by an order dated 25.09.2020 the Additional Principal Chief Conservator of Forests, Mangrove Cell, Mumbai after considering the order passed by the Supreme Court and the report, recommended that instead of shifting and replanting the mangroves at any other location belonging to Forest Department, the Petitioner can consider providing funds to Mangrove Foundation for undertaking new mangrove plantation in 5 Hectares on land belonging to the Forest Department, subject to approval of the State Government.
12. In the said Order, it is provided that the number of saplings planted for 5 Hectares would be around 22,220 mangroves and costs involved for plantation and maintenance would be more than Rs.21,76,633/-. Learned senior counsel for the Petitioner, on instruction states that his client is ready and willing to pay the said costs involved for plantation as directed by the Additional Principal Chief Conservator of Forests, Mangrove Cell, Mumbai.
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13. It is submitted by the learned senior counsel that the Judgment of this Court relied upon by the Respondents No.6 in PIL No.87 of 2006 would not advance the case of the Respondent No.6 on the ground that in the said judgment itself, paragraph No.65 clarifies that every mangroves area which is privately owned will not fall in the definition of private forest in clause (f) of the Section 2. He also relied upon the said report submitted by the Central Empowered Committee clearly admitting that non-forest land diverted for Compensatory Afforestation had not been notified under the Forests Act.
14. Learned senior counsel invited our attention to Section 21(A) of the Maharashtra Private Forests (Acquisition) Act, 1975 and submitted that it is clearly provided that nothing in Section 21 shall apply to any non-forest land, not being the property of Government, on which by artificial means or by human agency afforestation is made by planting forest trees species. He submitted that when the land was surrendered by the Petitioner to the Forest Department, there were no mangroves planted on the said plot. In support of this submission, learned counsel invited our attention to the letter dated 21.07.2016 from the Principal Chief Conservator of Forests (Head of Forest Force), Husen Page 8 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 ::: 906 WP 3409 OF 2021.doc Maharashtra State, Nagpur after referring to letter dated 20.05.2015 & 25.05.2016 Chief Conservator of Forests, Thane reported that the 5.03 Hectares non-forest land was transferred to the Forest Department in 2006. There was no mangrove vegetation in this area when it was taken over by the Forest Department and Compensatory Afforestation was done in this area in the year 2009-10. Mangrove species were planted by the Forest Department. Forest Department incurred an expenditure of Rs.17,00,934/- during 2009-10 to 2015-16 towards afforestation, fencing of the area and other activities. He submitted that since mangroves were planted by the human agency such mangroves on the land restored to the Petitioner pursuant to the Order passed by the Hon'ble Supreme Court, cannot be considered as private forest. He submitted in any event the said land of the Petitioner has not been notified till date as forest.
15. Ms.Sheetal Shah, learned counsel for the Respondent No.6 vehemently opposed this petition by placing reliance on the order passed by this Court in PIL No.87 of 2006 and observations made by this Court therein. She submitted that, in any case, in private forest cutting down of the mangroves is Husen Page 9 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 ::: 906 WP 3409 OF 2021.doc totally prohibited. She also relied upon paragraph Nos.60, 66 and the concluding paragraph of the said judgment and submitted that there shall be a total freeze on the destruction and cutting of mangroves in entire State of Maharashtra irrespective of the mangroves being planted on private forest or not. She submitted that in view of the mangroves already planted, the land of the Petitioner is notified under the CRZ and considered as deemed forest.
16. It is submitted by the learned counsel for Respondent No.6 that the Petitioner has not explained any public purpose involved for seeking permission to remove mangroves from the plot of the petitioner. The only objection of the Respondent No.6 is that the mangroves shall not be allowed to be removed from the land in question. If the Petitioner seeks to use the said land without removing the mangroves for any permissible use, Respondent No.6 has no objection.
17. Learned AGP for Respondent Nos.2 to 5 relied upon some of the paragraphs in an affidavit in reply filed by the Respondent Nos.2 to 5. She submitted that it was artificial regeneration and not natural proliferation identified mangroves forest or Husen Page 10 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 ::: 906 WP 3409 OF 2021.doc mangrove area. The Petitioner is required to obtain prior permission from MCZMA for mangrove cutting for the future proposed project. She submitted the land in question falls in category of mangrove and therefore provisions of Forest (Conservation) Act, 1980 shall be applicable in respect of said land for any non-forest activity including cutting of trees.
18. Dr.Sathe, learned senior counsel for the Petitioner in his rejoinder arguments, submitted that since the mangroves are planted by the Forest Department after handing over possession by the Petitioner, which possession is restored pursuant to the Order passed by the Supreme Court, such mangroves planted in Forest Department would not convert the plot of the Petitioner as forest land. He submitted that the Judgment of the Division bench of this Court, relied by the learned counsel for the Respondent No.6 would not advance the case of the Respondent No.6. It is not in dispute that this Court in the said judgment dated 17.09.2018 in PIL No.87 of 2006 had laid down various guidelines in respect of the forest land and also mangroves on private lands.
19. The question that arises for consideration of this Court is Husen Page 11 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 ::: 906 WP 3409 OF 2021.doc whether guidelines framed by this Court in the said judgment would apply to the facts of this case or not. It is admitted position that pursuance to the order passed by Government of India, the Petitioner was granted various permissions to carry out various activities on the plot allowed to the Petitioner on the condition that the Petitioner would surrender part of its other land for Compensatory Afforestation to Forest Department. Perusal of the records clearly indicates that when the Petitioner was handed over its plot of land for Compensatory Afforestation to the Forest Department, there were no mangroves on the said plot. The mangroves were subsequently planted by the Forest Department by appointing human agency. Section 21(A) of the Maharashtra Private Forests (Acquisition) Act, 1975 clearly provides that nothing in Section 21 shall apply to any non-forest land, not being the property of Government, on which by artificial means or by human agency afforestation is made by planting forest trees species. The Forest Department had planted mangroves after handing over the possession of the said plot by the Petitioner to the Forest Department in compliance with the condition imposed by the Central Government while allotting another plot in the forest area. In our view Section 21(A) thus Husen Page 12 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 ::: 906 WP 3409 OF 2021.doc would apply to the facts of this case. Be that as it may, till date land of the Petitioner is not been declared as private forest under Section 21(A) of the Maharashtra Private Forests (Acquisition) Act, 1975.
20. The Judgment cited by the learned counsel for the Respondent No.6 in PIL No.87 of 2006 thus would not apply to the facts of this case even remotely.
21. In view of the permission applied by the Petitioner, the Central Empowered Committee submitted a detail report before the Hon'ble Supreme Court admitting that the non-forest land was diverted to Compensatory Afforestation, has not been notified under the Forest Act. The Hon'ble Supreme Court accepted the said report submitted by the Central Empowered Committee and clearly held that there was no reason why the land belonging to the Petitioner should be withheld from him and directed the subject land be restored to the Petitioner within a period of one month from the date of the said Order.
22. The Petitioner has already been handed over possession of the said land. When the Petitioner applied for permission, the Additional Principal Chief Conservator of Forests, Mangrove Husen Page 13 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 ::: 906 WP 3409 OF 2021.doc Cell, Mumbai passed an Order dated 25.09.2020 and after considering the Supreme Court Order dated 05.08.2019 observed that the Petitioner intends to use of the land in future by removing planted mangroves, and would be approaching this Court to grant of permission for shifting and re-plantation of the mangroves. Considering the background of the matter, the Additional Principal Chief Conservator of Forests, Mangrove Cell, Mumbai recommended that instead of shifting and replanting the mangroves at any other location belonging to Forest Department, the Petitioner would consider providing funds to Mangrove Foundation for undertaking new mangrove plantation in 5 Hectares on the land belonging to the Forest Department, subject to approval of the State Government.
23. It is thus clear that even if mangroves planted on the land of the Petitioner by Forest Department are allowed to be removed, on payment of Rs.21,76,633/- by the Petitioner in compliance with the Order dated 25.09.2020, the Forest Department with the Mangroves Foundation would undertake new mangroves in 5 Hectares on the land belonging to the Forest Department. There is thus no prejudice caused to the interest of Respondent No.6, if the permission is granted in the Husen Page 14 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 ::: 906 WP 3409 OF 2021.doc facts and circumstances, by this Court to remove the mangroves planted by the Forest Department. Be that as it may, permission granted by the order dated 25.09.2020 passed by Chief Conservator of Forests, Mangroves Cell has not been impugned by any of the Respondents including Respondent No.6 and is still in force. The Petitioner is agreeable to pay the costs quantified at Rs.21,76,633/- to the Mangroves Cell towards costs for undertaking new mangroves plantation in 5 Hectares by planting 4444 saplings.
24. In our view, the Petitioner has made out case for grant of permission, as prayed.
25. We accordingly pass the following Order:
[i] Writ Petition is allowed in terms of prayer clause (a) of the Petition on condition that the Petitioner to pay an amount Rs.21,76,633/- as directed in the Order dated 25th September, 2020 within two weeks from today. Respondent Nos.2 to 5 are directed to implement the Order within two weeks thereafter. [ii] Rule is made absolute in the aforesaid terms. No order as to costs.
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906 WP 3409 OF 2021.doc [iii] All concerned to act on an authenticated copy of this order.
(M.M. SATHAYE, J.) (R.D. DHANUKA, J.) Husen Page 16 of 16 ::: Uploaded on - 23/02/2023 ::: Downloaded on - 05/06/2023 01:26:37 :::