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3.3 According to the State Government, four officers responsible for carrying out such a faulty survey were proceeded departmentally and action was also taken against such officers.

3.4 At that point of time a proposal was received by the State Government from the company to permit them to use the forest land for non-forest purpose. After the receipt of such proposal the State Government noticed that there were in all 628 families residing in the buildings constructed by the company. The company, in its proposal, agreed to provide additional 110 hectares (almost five times the area in question) of non-forest land at Village-Sanada, Taluka-Palitana, District-Bhavnagar, which is a part of Lion Corridor area suitable as lion's habitat.

3.5 The State Government accordingly after considering all the relevant aspects recommended to the Central Government to impose levy of penalty of 2.5 times of the prevailing market value and thereby grant approval to permit the company to make use of the forest land for non-forest purpose. According to the State Government, the company encroached upon the land mainly due to the failure on the part of the Government to fix the boundaries of the forests at appropriate stage, more particularly, in the year 2005.

5.14 According to the company, three two storey buildings for residential purposes are standing as on today on the disputed land and in all 745 individuals are residing in the said buildings since 2008.

5.15 In such circumstances, the company has prayed that the Central Government may be permitted to take an appropriate decision in the matter and this Court may not grant any of the reliefs as prayed for by the petitioner.

5.16 At this stage, it may not be out of place to state that initially after taking into consideration the pleadings of the parties and the oral submissions of the respective counsel, we were of the opinion that since the proposal of the State Government dated 24th February 2011 addressed to the Ministry of Environment and Forests of the Central Government for the use of forest land for non-forest purpose was still pending with the Central Government and as the Central Government is yet to take an appropriate decision, we should not go into the larger aspects of the matter and just ask the Central Government to take an appropriate decision in the matter as early as possible. However, Mr.Y.N.Oza, the learned Senior Advocate appearing for the petitioner very vehemently submitted before us that the pendency of the proposal of the State Government before the Central Government would be nothing but just an empty formality since the Central Government cannot grant any ex-post facto approval for diversion or use of the disputed forest land for non-forest purpose in view of the specific language used in Section 2 of the Forest (Conservation) Act, 1980. To put it in other words, according to Mr.Oza, Section 2 of the Act of 1980 speaks about prior approval and once the legislature has thought fit to use the word prior it necessarily suggests that there cannot be any ex-post facto approval. Such being the vociferous submission of Mr.Oza, we were left with no other option but to hear the petition at length and accordingly we have decided to look into the matter on merits.

38. In the present case, indisputably there is no order passed by the State Government or other authority directing that the forest land which the respondent no.2 is occupying as on today may be used for non-forest purpose. Even if the State Government or any other authority wants to pass any such order directing that any of the forest land or any portion thereof may be used for any non-forest purpose, prior approval of the Central Government is necessary. This is very much evident on plain reading of the Section 2 itself and there cannot be any debate on this issue. The only question with which we are confronted in the peculiar facts of the present case is whether the Central Government at this stage can grant the prior approval or the same would amount to ex-post facto approval which is not permissible in law.