Summary
Applications in the Godavarman forest matter concerning 11.89 hectares of reserved forest at Kondhwa Budruk, Pune, allotted by the Maharashtra Government in 1998 to a family and then sold with official permission to a housing society for multi-storeyed construction. The Supreme Court held that the land remained reserved forest since 1879, that its allotment without prior Central Government approval violated Section 2 of the Forest (Conservation) Act, 1980 and the Court's 1996 directions, that desuetude did not apply, that the society was neither a bona fide purchaser nor entitled to alternate land, and that the Revenue Minister and Divisional Commissioner breached the public trust; the allotment, sale permission and environmental clearance were quashed and nationwide directions issued to return revenue-held forest lands to Forest Departments.
Issues
- Whether the subject land (Survey No. 21, formerly 20-A, Kondhwa Budruk) is forest land.
- Whether the Divisional Commissioner was justified in recommending allotment of the entire land to the 'Chavan Family' and the State Government in accepting it without prior approval of the Central Government under Section 2 of the Forest (Conservation) Act, 1980.
- Whether the doctrine of desuetude applied so that the 1879 reservation ceased to have effect.
- Whether the purchaser housing society (RRCHS) was a bona fide purchaser of the subject land.
- Whether RRCHS was entitled to allotment of alternate land as had been directed in I.A. No. 2771 of 2009.
- Whether the doctrine of public trust was breached by the State functionaries.
Provisions considered
- Section 2, Forest (Conservation) Act, 1980Section 2 bars any State Government or authority, without prior approval of the Central Government, from ordering that a reserved forest cease to be reserved, that forest land be used for a non-forest purpose, or that forest land be assigned by lease or otherwise to a private person. The Court held the 1998 allotment to the Chavan Family violated clause (iii) in particular; the one-year 1968 lease had long expired, no non-forest use had been permitted before 1980, and Banshi Ram Modi could not be relied on after Ambica Quarry Works and the Court's order of 12 December 1996. (¶¶ 23, 24, 26, 27, 28, 33, 34, 36, 38, 91)
- Section 34, Indian Forest Act, 1878The subject land was notified as reserved forest under Section 34 by notification dated 1 March 1879; only 3 acres 20 gunthas were de-reserved in 1934, and the balance 29 acres 15 gunthas (11.89 ha) continued as reserved forest. A 1944 gazette notification relied on by RRCHS to show de-reservation was found on a CID enquiry to be fabricated. (¶¶ 2.1, 2.2, 2.3, 12, 13, 20, 21, 46, 47)
- Regional Plan zoning, Maharashtra Regional and Town Planning Act, 1966RRCHS argued that the Final Regional Plan of Pune Region showed the land in a public/semi-public or agricultural zone, not a green zone, so it could not have known the land was forest. The Court rejected the bona fide purchaser plea on the facts of the pre-allotment transactions. (¶¶ 8, 48, 62, 63, 64)
Held
- Land notified as reserved forest in 1879 under Section 34 of the Indian Forest Act, 1878, and continuously shown as reserved forest in Forest Department records, remains forest land notwithstanding that revenue records describe it as government grazing ground; after the 1980 Act no forest land could be de-reserved without Central Government permission. (¶¶ 12, 13, 14, 20, 21)
- After the Forest (Conservation) Act, 1980 came into force, no State Government or authority may, without prior Central Government approval, de-reserve any reserved forest, permit forest land to be used for non-forest purposes, or assign forest land by lease or otherwise to any private person. The Court's order of 12 December 1996 in these proceedings required all ongoing non-forest activity in any forest without such approval to cease forthwith and effectively overruled Banshi Ram Modi; a State legal opinion relying on Banshi Ram Modi while ignoring Ambica Quarry Works and that order was wholly erroneous, and the 1998 allotment orders were unsustainable. (¶¶ 24, 29, 30, 31, 32, 33, 34, 36, 37, 38)
- The doctrine of desuetude is ordinarily viewed with disfavour and requires two essentials: that the statute has not been in operation for a very considerable period, and that a contrary practice has been followed over time; mere neglect is insufficient. Forest law has consistently evolved towards greater protection since 1878, the land was continuously recorded as reserved forest and Forest authorities repeatedly sought its transfer, so the doctrine had no application. (¶¶ 42, 44, 45, 46, 47)
- Entries in revenue records confer no title and have only a fiscal purpose. A purchaser cannot be bona fide where its chief promoter had obtained development agreements and powers of attorney from the allottees years before the land was allotted to them, a pending suit over the land was compromised the day after the Collector's allotment order, and the allotment itself prohibited transfer and non-agricultural use; the allottee family was merely a front for the developers. (¶¶ 49, 50, 51, 52, 53, 58, 59, 60, 61, 62, 63, 64)
- The direction for alternate land in I.A. No. 2771 of 2009 rested on special circumstances (a decree-holder whose land the State had illegally taken for a defence establishment) and offers no parallel to a purchaser who, with open eyes, entered into illegal transactions over forest land before its allotment; granting alternate land would be a premium on illegality. (¶¶ 66, 67, 68, 71, 72, 73, 74)
- Under the public trust doctrine the State holds forests and other natural resources as trustee for the people and cannot convert them to private ownership or commercial use. The then Revenue Minister and Divisional Commissioner, who allotted the entire forest land despite the Collector's recommendation limiting it to 3 acres 20 gunthas, the Forest Department's objections and the Collector's own refusal of the land to MSEB as forest, acted in total breach of public trust to cause gain to private individuals. (¶¶ 76, 77, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91)
- Forest lands remaining in possession of Revenue Departments create complexities and lead to illegal allotments; any allotment of such land to private persons for non-forestry purposes after 12 December 1996 is unsustainable. States and Union Territories must hand such lands over to Forest Departments, take back allotted lands where possible and, where repossession is not in the larger public interest, recover the land's cost from the allottees for afforestation and conservation. (¶¶ 92, 93, 94, 95)
Result
Applications and writ petition disposed of. 1998 allotment of 11.89 ha of reserved forest and 1999 permission for its sale to RRCHS held illegal; 2007 environmental clearance quashed; State's recall of the allotment approval upheld. Land to go to the Forest Department within three months. All States and UTs to form Special Investigation Teams to identify revenue-held forest land allotted for non-forestry use, take it back (or recover its cost for forest development where repossession is not in the public interest) and complete transfers to Forest Departments within one year.