No conservation fee if construction takes place outside of the ESZ: Bombay HC

MUMBAI: The Bombay High Court dismissed a Rs 4 crore demand made on a Thane developer, ruling that the forest department cannot levy a “conservation fee” on commercial activities outside the eco-sensitive zones (ESZs) surrounding national parks and wildlife sanctuaries.

According to the HC, the moot question is whether the 2% of project cost must be deposited even if the petitioner’s property is not within the ESZ, and the forest officer was acting “beyond the authority” because the department was unable to show any legal provision that allows them to seek such a fee as deposit.

As per a May 4 judgement by a division bench of Justices SV Gangapurwala and Vinay Joshi, the principal chief conservator of forest and director, Sanjay Gandhi National Park, and the national board of wildlife, they may not be able to exercise their authority beyond the ESZ. On May 7, the HC summer vacation began.

The developer, Sai Pushp Enterprises and its director Yogesh Puranik, had petitioned the high court challenging a 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 Rs 200 crore project cost as “conservation fee”

“When the petitioner’s activity exceeds the ESZ, they would not have any authority to demand the deposit of the amount,” the bench said.

In June of this year, the builder applied to Thane Municipal Corporation (TMC) for a plinth commencement certificate and a part occupancy certificate (OC). According to the TMC, he must first pay the forest department’s “conservation fee.” The developer then petitioned the High Court, claiming that the forest department lacked legal authority to levy such a “conservation fee” because the project was outside the ESZs of both Sanjay Gandhi National Park and Tungareshwar Wildlife Sanctuary.

The forest department stated that it was within 10 kilometres of the national park and referred the case to the NBWL standing committee.