Supreme Court Ruling: Shewalkar Developers Granted Permission for Eco-Resort Construction, Conditional on ESZ Compliance
Case title: T.N. GODAVARMAN THIRUMULPAD VS UNION OF INDIA & ORS.
Case no.: WRIT PETITION(CIVIL) NO(S). 202 OF 1995
Dated on: 16th May 2024
Quorum: Hon’ble. MR JUSTICE B.R. GAVAI and Hon’ble. MR JUSTICE SANDEEP MEHTA.
FACTS OF THE CASE
These interlocutory applications have been preferred by the applicant M/s Shewalkar Developers Limited being aggrieved by the inaction of the respondents in deciding the application filed by the applicant seeking permission to construct a health/eco-resort on the subject land being Plot Nos. 14/3 and 14/4, falling in Sheet No. 20, Civil Station, Panchmukhi, District Hoshangabad, Madhya Pradesh. The total area of these two plots is around 59,265 sq. ft. and 49,675 sq. ft., respectively. The applicant herein approached the Madhya Pradesh High Court by filing Writ Petition No. 14478 of 2006 seeking a direction to the respondents to favorably consider the prayer of the applicant. Vide order dated 22nd November, 2006, the Division Bench of Madhya Pradesh High Court permitted the applicant to approach the Central Empowered Committee (hereinafter being referred to as ‘CEC’) constituted under the directions given by this Court in Writ Petition (Civil) No. 202 of 1995. Consequently, the applicant preferred an application to the CEC seeking permission to construct the health/eco-resort on the land mentioned above asserting that the said chunk of land was not a forest land and had been acquired under valid title deeds and thus, the prayer for permission to construct may be allowed. However, the prayer made by the applicant was not accepted whereupon, the applications under consideration came to be filed before this Court. The State Government had previously taken a stand in its counter that the land in issue falls within the limits of Pachmarhi Wildlife Sanctuary and therefore, by virtue of the directions issued by the CEC vide letter dated 2nd July, 2004, no commercial activity was permissible thereupon, without the permission of this Court. Much water has flown during pendency of the original application (I.A. No.2930 of 2010) which has remained pending for almost 14 years. Another litigation took place regarding other transactions of land done by Dennis Torry and it will be essential to trace the history thereof. The District Collector, Hoshangabad registered Suo moto revisions against the mutation orders issued in favour of Kripa Torry and Sanjay Bhandari (purchasers of land from Dennis Torry) and vide order dated 9th August, 2004, these revisions were allowed holding that the transfer of land by the perpetual land holder Rodrigues in favour of Dennis Torry on 8th September, 1977 was illegal and without force of law and thus, mutation of land in favour of Dennis Torry was illegal. The transfer and consequent mutation in favour of Sanjay Bhandari and Shri Kripa Torry (son of Dennis Torry) was quashed and set aside by the District Collector vide order dated 9th August, 2004. The issue which has now been raised by the State of Madhya Pradesh is with respect to the identification of the land owned by the applicant contending that the same forms a part of the Pachmarhi Wildlife Sanctuary.
ISSUES
- Whether the applicant, M/s Shewalkar Developers Limited, can proceed with the construction of a health/eco-resort despite the pending writ appeal before the Madhya Pradesh High Court concerning the land’s title and ownership.
- Whether the transfer and mutation of land from Dennis Torry to the applicant were valid and legally recognized, considering past legal challenges and the orders of the District Collector, Hoshangabad.
- Whether the land in question falls within the Pachmarhi Wildlife Sanctuary or Eco-Sensitive Zone (ESZ), thereby restricting commercial activity under the Wild Life (Protection) Act, 1972, and the ESZ notification dated 9th August 2017.
- Whether the applicant has demonstrated that the land is outside the ESZ, based on the site map and the compliance affidavit provided by the State.
- Whether the respondents, including the State Government and the Central Empowered Committee (CEC), have followed due process and provided a fair consideration of the applicant’s request, especially in light of the failure to implead the applicant in relevant litigations.
LEGAL PROVISIONS
Constitutional Provisions
Article 300A of the Constitution of India: This article states that no person shall be deprived of their property save by authority of law. It ensures the protection of property rights of individuals against arbitrary state action.
Environmental and Wildlife Laws
Wildlife (Protection) Act, 1972: This Act provides for the protection of wild animals, birds, and plants, and for matters connected therewith. Key sections relevant to this case include:
Section 29: Restriction on the entry in the sanctuary and regulation of commercial activities therein.
Section 35: Declaration of a sanctuary by the state government.
Environmental Protection Act, 1986: An Act to provide for the protection and improvement of the environment and for matters connected therewith. This Act empowers the central government to take all measures deemed necessary for protecting the environment.
CONTENTIONS OF THE APPELLANT
Shri D.S. Naidu, learned senior counsel representing the applicant drew the Court’s attention to the order dated 15th December, 2000 passed by the Department Officer (SDO), Pipariya on the application preferred by the applicant seeking mutation based on a registered sale deed dated 13th September, 1991 executed by the land owner Dennis Torry in favour of the applicant. The SDO accepted the said application taking note of the fact that Plot No.14 admeasuring 3,23,365 sq. ft. was entered in the name of Dennis Torry who sought and was granted permission to sell the plot in question, by the Government of Madhya Pradesh vide order dated 1st May, 1991. Thereafter, by a registered sale deed dated 13th September, 1991, Dennis Torry had sold the subject plots of land to Ashutosh Shewalkar on behalf of the applicant company. Consequently, the SDO directed that the land sold by Dennis Torry should be mutated in the name of M/s Shewalkar Developers Ltd. through Ashutosh Shewalkar, resident of Nagpur. There is no dispute that the aforesaid order passed by the jurisdictional Revenue Officer in favour of the applicant has not been questioned in any Court of law. Further Shri Naidu also drew the Court’s attention to the report of the CEC dated 16th June, 2020, as per which the permission to construct has been denied to the applicant on the ground that the State of Madhya Pradesh had filed an affidavit stating that the land falls in the Pachmarhi Wildlife Sanctuary and that the same had been purchased in violation of the provisions of the Wild Life (Protection) Act, 1972. Shri Naidu contended that this objection raised by the State with reference to the Eco Sensitive Zone (hereinafter being referred to as ‘ESZ’) notification dated 9th August, 2017 is totally against the material available on record. He drew the Court’s attention to the site map dated 26th December, 2023(Annexure A-1 annexed with the compliance affidavit dated 12th February, 2024 filed by the respondent-State of Madhya Pradesh) to contend that as a matter of fact, the land owned by the applicant is located right on the periphery of the Nazul land, at a distance of about 10 kms. from the forest area and therefore, the same is well beyond the ESZ area. Shri Naidu further submitted that in view of the categoric assertion made in the compliance affidavit dated 12th February, 2024, filed on behalf of the State, it is clear that the plots in question are located in the urban area of Pachmarhi and thus, there is no question of these plots being covered either under the wildlife sanctuary or the ESZ area. He thus urged that the applicant deserves the relief sought for.
CONTENTIONS OF THE RESPONDENTS
learned counsel appearing for the respondents have opposed the submissions advanced by Mr. Naidu. Learned counsel for the State of Madhya Pradesh urged that the plots in question are subject matter of litigation in the writ appeal pending before the Division Bench of the Madhya Pradesh High Court and thus, the applicant should await the outcome of the aforesaid writ appeal before seeking permission to construct the health/eco resort on the land in question. His further contention was that the plots in question are recorded in the name of the State of Madhya Pradesh and hence, the applicant cannot claim any right thereupon. Mr. K. Parameshwar, learned Amicus Curiae appearing on behalf of the CEC submitted that in view of the ESZ notification dated 9th August, 2017, permission to raise a new construction on the land in question cannot be granted and whatever permissions are sought for, have to be routed through the CEC.
COURT’S ANALYSIS AND JUDGEMENT
In this background, the applicant is justified in claiming that its proprietary rights guaranteed under Article 300A of the Constitution of India cannot be infringed merely on account of the pending writ appeal before the Madhya Pradesh High Court. Resultantly, we are of the firm opinion that the permission sought by the applicant for raising construction of health/eco resort cannot be opposed only on account of pendency of the writ appeal before the Madhya Pradesh High Court. However, it can be said without a cavil of doubt that activities, if any, on the Plot Nos. 14/3 and 14/4 purchased by the applicant from Dennis Torry would have to be carried out strictly in accordance with the ESZ notification dated 9th August, 2017, issued by the Ministry of Environment, Forest and Climate Change. Neither the Revenue Department nor the State Government authorities took the trouble of impleading the applicant as party in any of the abovementioned litigations. The title acquired by the applicant over the subject plots not having been challenged, attainted finality and thus the State cannot claim a right thereupon simply because at some point of time, the plots came to be recorded as Nazul lands in the revenue records. The categoric stand in the compliance affidavit filed by the State (reproduced supra) fortifies the claim of the applicant that these plots are falling under the urban area. Nonetheless, the applicant would be at liberty to satisfy the authorities that the plots in question are beyond the Eco-Sensitive Zone. Furthermore, since the writ appeal pending before the Madhya Pradesh High Court arises out of the orders passed in relation to the title rights of Dennis Torry, from whom the applicant purchased the plots in question, the activities, if any, undertaken by the applicant on the said plot of land would also remain subject to the outcome of the said writ appeal. While deciding the application filed by the applicant, the authorities shall also bear in mind the fact that it is the pertinent case presented before this Court that a large number of resorts of Madhya Pradesh Tourism Development Corporation and Special Area Development Authority (SADA) are existing on areas abutting the land owned by the applicant. The application/s shall be decided within a period of two months from today. Needless to say, that in the event of any adverse orders being passed, the applicant shall be at liberty to challenge the same as per law. The applications are disposed of in above terms. No order as to costs.
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Judgement Reviewed by – HARIRAGHAVA JP
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