Municipal Council, Kalmeshwar, ... vs Union Of India Thru Its Secty. & 6 ...
2017 Latest Caselaw 2962 Bom

                                                                           wp.5528.07

                                                  1



                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT NAGPUR, NAGPUR.
                                       ...

WRIT PETITION NO. 5528/2007

Municipal Council, Kalmeshwar Through its Chief Officer, Kalmeshwar Tah.Kalmeshwar, Dist.Nagpur. ..PETITIONER

v e r s u s

1) Union of India Through its Secretary Ministry of Environment and Forests New Delhi.

2)      The Deputy Conservator of Forest 
        Regional Office, Western Region, 
        E-3/240, Arera Colony
        Bhopal : 462 016 (M.P..)

3)      The State of Maharashtra 
        Through  its Secretary 
        Revenue and Forest Department
        Mantralaya, Mumbai-32. 

4)      The Collector, 
        Nagpur. 

5)      The Tahsildar, Kalmeshwar 
        Tq. Kalmeshwar  Dist. Nagpur. 

6)      The Maharashtra Shikshan Sanstha
        Through its Secretary 
        R/o Kalmeshwar, Tq.kalmeshwar 
        Dist. Nagpur. 

7)      The  State of Maharashtra   
        Through its Secretary 

Ministry of Revenue and Forest Department Mantralaya, Mumbai-32. ..RESPONDENTS

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...........................................................................................................................

None for the petitioner Mr. C.J. Dhumane, Advocate for respondent no.1 Mr. N.S.Rao, Asst.Government Pleader for Respondent nos.2,3,4,5 & 7 Mr. A.M.Gordey, Sr.Advocate with Mrs.R.D.Raskar, Adv.for respondent 6 ............................................................................................................................

                                                     CORAM:    R.K.DESHPANDE &
                                                                    MRS . SWAPNA JOSHI, JJ
                                                                                          . 
                                                     DATED :       8  June,   2017
                                                                     th



ORAL JUDGMENT: (PER R.K.DESHPANDE,  J.)

This petition filed by the Municipal Council, Kalmeshwar

challenges the order dated 03.04.2001 at Annexure "J", passed by the

Ministry of Environment and Forest, Government of India, in exercise of

its powers under Section 2 of the Forest (Conversation) Act, 1980,

permitting the diversion of 0.10 hectares of forest land out of Gut No.

176 of Kalmeshwar, for construction of Indira Gandhi Primary Girls'

School, under the Nagpur Forest Division, on certain conditions

stipulated therein. The petitioner also challenges the order dated

22.01.2004 passed by the Collector, Nagpur allotting 0.10 hectares of

land to the respondent no.6-Maharashtra Shikshan Sanstha for

construction of school building, upon certain terms and conditions

stipulated therein. The petitioner also seeks a direction to respondent

no.3-State of Maharashtra to acquire the land allotted to the respondent

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no.6 and permit the petitioner-Municipal Council to use it for the

purpose for which the said land is reserved in the Development Plan of

Kalmeshwar i.e, for the purposes of public utility.

2. The matter was admitted on 15th July, 2009. It was listed for

final hearing on 06.02.2017, 16.02.2017, 27.02.2017, 07.03.2017,

22.03.2017, 27.03.2017, 29.03.2017, 11.04.2017, 05.06.2017 and

07.06.2017. Although the matter was adjourned at the request of

learned counsel for the petitioner on several occasions, none appeared

for the petitioner on 05.06.2017 and 07.06.2017.

3. We have, therefore, heard Shri Gordey, learned senior

Advocate assisted by Ms.R.D.Raskar, learned counsel for respondent no.

6; Shri C.J. Dhumane, learned Advocate for the respondent no.1-Union

of India and the learned Assistant Government Pleader for respondent

nos.2,3,4,5 and 7.

4. With the assistance of the learned counsels, we have gone

through the averments made in the entire petition. The case of the

petitioner-Municipal Council, as we gathered, is that in the

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Development Plan of Kalmeshwar, published on 14.12.1975 and brought

into force with effect from 15.04.1977, the property in question was

reserved for public utility. It was required by the Municipal Council for

the purposes of parking and also for extension of Bus Stand/Depot. It is

alleged in the petition that the need for construction of a Primary School

for girls on the property in question, is not genuine and, at any rate,

the orders impugned have been passed in ignorance of the reservation of

the property in question for the purposes of public utility in the final

Development Plan which came into force with effect from 15.04. 1977.

5. It is not in dispute that the land in question which is 0.10

hectare out of Gut No.809 at Kalmeshwar was a part of the Zudpi jungle

and in terms of Section 2 of the Forest (Conservation) Act 1980, it was

not permissible for the State Government to allot the land in question for

any private purpose without prior approval of the Central Government.

Accordingly, the Central Government has passed the order dated

03.04.2001 granting its approval for user of the land for construction of

Indira Gandhi Primary Girls' School. The order of allotment of land in

question was issued by the Collector on 22.01.2004 in favour of the

respondent no.6-Maharashtra Shikshan Sanstha, Kalmeshwar. We,

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therefore, do not find any infirmity in passing such orders by the Central

Government and the State Government.

6. If the land was shown to have been reserved in the

Development Plan of 15.04.1977 for the purposes of public utility, as a

Planning Authority, it was open for the petitioner-Municipal Council to

initiate the steps for acquisition of such land and to take the same to its

logical end. The Central Government passed an order on 03.04.2001

under Section 2 of the Forest (Conservation) Act in favour of the

respondent no.6 and except making representation on 31.08.2005, no

steps are taken. This petition was filed on 11.10.2007. As per the

provisions of sub-section(1) of Section 127 of the Maharashtra Regional

and Town Panning Act, the provisions in the Development Plan once

published, continues to operate for a period of ten years unless the same

provision is continued under the revised Development Plan. The period

of ten years came to an end on 14.04.1987. There is nothing to show

that such reservation continued to operate beyond 14.04.1987.

7. Be that as it may, we fail to understand as to how the land

in question can be put to use for any other purpose without prior

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approval of the Central Government as contemplated by Section 2 of the

Forest (Conservation) Act, 1980. The order impugned dated 03.04.2001

passed by the Central Government grants exemption only for the

purpose of construction of Indira Gandhi Primary Girls' School and it is

not the complaint anywhere in the petition that the respondent no.6 has

committed breach of the terms and conditions stipulated, either in the

order passed by the Central Government or the order of allotment passed

by the State Government.

8. In view of the above, we do not find any substance in the petition.

The same is dismissed. However, there shall be no order as to costs.

                         JUDGE                        JUDGE
sahare