The Bombay high court has struck down the demand of ₹4 crore from a developer in Thane, saying the forest department could not levy a “conservation fee” on commercial activities outside the eco-sensitive zones (ESZs) surrounding national parks and wildlife sanctuaries.
“The respondent nos. 5 [principal chief conservator of forest and director, Sanjay Gandhi National Park] and 6 [national board of wildlife] may not be in a position to exercise their authority beyond the ESZ,” a division bench of justice SV Gangapurwala and justice Vinay Joshi said.
“When the activity of the petitioner is beyond the ESZ, then in that case, they would not have any authority to demand the deposit of the amount,” the bench said, while striking down the demand made from the petitioner – M/s. Sai Pushp Enterprises.
Though the order was passed on May 5, it was available on May 9.
The developer, who is building a residential and commercial complex at Kavesar on Ghodbunder Road in Thane, had moved the high court challenging the June 2018 order of the standing committee of the national board of wildlife (NBWL), which had approved the project proposal subject to payment of 2% of the project cost ( ₹200 crore) towards a “conservation fee”.
After part completion of the work, the developer had on May 28, 2021, applied to the local authority, Thane Municipal Corporation (TMC), for a plinth certificate and on July 12, 2021, for part occupation certificate. The civic body, however, refused to process the applications for want of payment of the “conservation fee” to the forest department, prompting the builder to approach the high court.
The developer contended that the forest department had no authority under the law to levy and demand the “conservation fee”, as the project was outside the ESZs of both – Sanjay Gandhi National Park and Tungareshwar Wildlife Sanctuary.
The forest department, on the other hand, claimed that the project was within 10 km periphery of the national park and it was referred to the standing committee of NBWL after the developer applied for environmental clearance for the project and approval was granted subject to payment of 2% of the project cost, and now, the developer could not refuse to pay the amount.
The HC, however, found that there was no legal authority to levy the fee and make the demand, as the project was beyond the limits of the ESZs of both the protected forests; while the notified ESZs were extended only four km outside the boundaries of the national park and the wildlife sanctuary, the project was located beyond five km from the boundary of the ESZs.
“In the present case, we do not find any authority with the respondents to demand a deposit of 2% of the project cost either under the statute or the executive instructions on the development activity beyond the ESZs,” the bench said.
“The demand would be without authority of law and arbitrary,” the court concluded and directed the TMC to process the developer’s applications without insisting on deposit of the “conservation fee”.
