BEFORE THE NATIONAL GREEN TRIBUNAL (PRINCIPAL BENCH), NEW DELHI APPLICATION No. 29/2012 21st February, 2013
Coram: 1. Hon’ble Shri Justice V.R. Kingaonkar (Judicial Member) 2. Hon’ble Shri P.S. Rao (Expert Member) 3. Hon’ble Dr. P.C. Mishra (Expert Member) 4. Hon’ble Shri Ranjan Chatterjee (Expert Member) 5. Hon’ble Shri Bikram Singh Sajwan (Expert Member)
B E T W E E N: NISARGA NATURE CLUB, A7 Kurtarkar Classic, Near Power House, Aquem, Margao,Goa. Represented by Mr. Sandeep Azrencar, In capacity as President as above.
…..Applicant V/S
1. SHRI SATYAWAN B PRABHUDESSAI Gaonkarwadem-Usgao, Ponda, Goa
2. ASSISTANT DEPUTY CONSERVATOR OF FORESTS Forest Department, Office of Deputy Conservator of Forests, Panaji, Goa
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3. UNION OF INDIA Ministry of Environment and Forests Paryavaran Bhavan, CGO Complex, Lodi Road, New Delhi 110003
4. HINDUSTAN PETROLEUM CORPORATION LIMITED Vasco Retail Region, C/o Vasco Terminal, F.L. Gomes Road, P.B. No. 48 Vasco-Da-Gama – 403802 (Goa) ….Respondents (Advocates appeared: Mr. Ritwick Dutta, Advocate with Ms. Srilekha Sridhar, Advocate for Applicant, Mr. Yashraj Singh Deora, Advocate with Mr. Prashant Narang, Advocate for Respondent No. 1 and Mr. V. Madhukar, Advocate with Mr. Paritosh Anil, Advocate for Respondent No. 2 and Mr. Anuj Puri, Advocate for Respondent No. 4)
J U D G M E N T
By this Application, Applicant seeks withdrawal of permission granted on 2nd April, 2008 by Additional Collector-II, South Goa Distt., Margao to convert a part of land in survey no. 25/2 from agricultural to non-agricultural purpose. In addition, the Applicant further seeks restitution of the balance area out of 74,875 sq. mtrs. in Survey No. 25/2, which has been deforested by felling of trees by Respondent No. 1, along with payment of costs as well as initiation of criminal action against him for committing forest offence.
2.
Nisarga Nature Club, the Applicant in this case, is a Registered Society
having its office at Aquem, Margao, Goa. There is no dispute about the fact that Respondent No. 1 (Satyawan B. Prabhudessai) owns land in Survey No. 25/2 situated at Village Sangod in Sanguem Taluka, (Goa). Somewhere in 2
December, 2009, the then President of the Applicant Society noticed felling of certain trees in Survey No. 25/2. He, therefore, made a complaint dated 8th December, 2009 to the Deputy Conservator of Forests. His complaint was unheeded by the said authority. On enquiry and after making certain efforts, the Applicant collected documents which indicated that vide application dated 11th July, 2006 Respondent No. 1 (Satyawan B Prabhudessai) had sought permission for conversion of a part of land in Survey No. 25/2 from agricultural to non-agricultural use.
It was also noticed that the Sub Divisional Forest
Officer (S.D.F.O.) recommended the proposal for conversion by expressing opinion that the Forest (Conservation) Act, 1980 was not applicable to the land in question in Survey No. 25/2.
By order dated 1st November, 2007, the
Respondent No. 2 reported to the Competent Authority that density of the tree cover in the plot of 2500 sq. mtrs., of which conversion was sought, was nil. The said land is adjoining to the Government forest. The Respondent No. 1 obtained permission on two occasions from the Respondent No. 2 for felling of trees. After obtaining the permission, the Respondent No. 1 has felled forty one (41) trees from Survey No. 25/2. A Writ Petition was filed by the Applicant in the Hon’ble High Court of Bombay, Bench at Goa vide Writ Petition (PIL) No. 14/2011 challenging the permission for conversion of the land to nonagricultural use as well as for the purpose of restoration of the environment by way of afforestation in Survey No. 25/2. The issue involved in the said Writ Petition was whether Survey No. 25/2 of Village Sangod is a forest land and a part thereof was illegally diverted by the Respondent No. 1 for non-forest purpose, namely, to construct / install a Petrol filling station. The Hon’ble High Court of Bombay, Bench at Goa appointed a State Level Expert Committee, South Goa, to examine whether the land Survey No. 25/2 is or was a forest 3
land and to submit a report in this behalf. The Member Secretary of the State Level Expert Committee (for short, SLEC) submitted a report dated 2nd November, 2011 to the Hon’ble High Court of Bombay, Bench at Goa. The Writ Petition was withdrawn by the Applicant with liberty to approach this Tribunal. By its order dated 5th March, 2012 Division Bench of the Hon’ble High Court of Bombay, Bench at Goa permitted the Applicant to withdraw the said Writ Petition without expressing any opinion regarding maintainability of the proceedings before the National Green Tribunal or on the merits of the matter. However, liberty to approach this Tribunal was granted to the Applicant.
3.
The Applicant thereafter filed the present application on the basis of the
report dated 2nd November, 2011 submitted by the SLEC to the Hon’ble High Court of Bombay, Bench at Goa. The Applicant alleges that the Respondent No. 1 has cleared vegetative cover from 18000 sq. mtrs. area in Survey No. 25/2 which has been bulldozed and a Petrol Pump was installed on an area of 4000 sq. mtrs. The Applicant further alleges that forty one (41) trees were cut illegally from Survey No. 25/2. The Applicant has come out with a case that the Respondent no. 1 has planted cashew trees in the entire area of 74,875 sq. mtrs. after illegally cutting the trees standing thereon. Thus, the Respondent No. 1 degraded the forest area and committed forest offence. The Applicant alleges that natural forest standing on 18000 sq. mtrs. of the land (Survey No. 25/2) has been cut by the Respondent No. 1. Consequently, the Applicant has sought revocation of the permission granted by the Additional Collector to the Respondent No. 1 for conversion of the part of Survey No. 25/2, to the extent of 2500 sq. mtrs., from agricultural to non-agricultural use. So also, the Applicant seeks restitution of the balance area out of 74,875 sq. mtrs. of Survey No. 25/2 4
which has been degraded by the Respondent No. 1. The Applicant also seeks direction to the Respondent No. 2 for taking photographs of the area prior to issuance of No Objection Certificate (NOC) for conversion of the land or for felling of trees under the Goa, Daman and Diu, Preservation of Trees Act, 1984.
4.
All the Respondents resisted the application mostly on identical grounds.
They denied that permission was illegally granted for conversion of a part of Survey No. 25/2 for non-agricultural purpose to the extent of 2500 sq. mtrs. That apart, the land is not a private forest and therefore provisions of the Forest (Conservation) Act, 1980 are not applicable to the said land. The Respondents further denied that there is degradation of entire area of 74,875 sq. mtrs. within Survey No. 25/2. They also disputed correctness of google map sought to be relied upon by the Applicant. They would submit that the aerial view of the location provided by the google map is incapable to distinguish between green shrubs and tree cover.
5.
The Respondent No. 1 further submits that the application is barred by
limitation. It is also alleged that the Applicant has no locus standi to file such application. According to the Respondent No. 1, Survey No. 25/2 is not private forest land nor it was identified as such by the two State Level Expert Committees, namely, the Sawant Committee and Karapurkar Committee as per topographical area wise situation in village Sangod. He further asserted that out of 74,875 sq. mtrs. of Survey No. 25/2 only 2500 sq. mtrs. area is converted for non-agricultural use in accordance with due permission granted under Section 32 of the Goa Land Revenue Code. He states that such permission was duly granted by the Additional Collector of South Goa, vide Sanad dated 5
2nd April, 2008.
The Respondent No. 1 alleges that after taking due
permissions certain trees were felled, on two occasions, from approximately 1000 sq. mtrs. area out of 74,875 sq. mtrs. land. The land in question is never identified as forest land. The Respondent No. 1 further alleges that the third (3rd) State Level Expert Committee Report is based on conjectures and surmises. The Respondent No. 1 denied that any forest offence has been committed by him. He also denied that he caused environmental degradation to the area by cutting the trees. On these premises, the Respondents sought dismissal of the application.
6.
We have heard learned counsel for the parties. We have also carefully
examined the documents placed on the record.
Mr. Ritwick Dutta, learned
Counsel for the Applicant, would point out that the Forest Officer gave report to the effect that the density of trees in the said land was “NIL”. He further pointed out that the very act of the Respondent No. 1 of removal of forty one (41) trees from Survey No. 25/2 is contradictory to such report of the Forest Officer. He pointed out that trees viz. Matti, Kindal, Zamba, Siras, Ghoting, Nano Sissam, Kawach, Dhaman, Sewar etc. were standing on the land Survey No. 25/2 and are of forest species. He further submits that whether the land was recorded in the Government record as forest land or not will not make any difference but the criteria to be applied is whether there were forest trees standing on that land and whether density of tree cover was in accordance with the parameters laid down by the State Government. He contends that the third (3rd) Report submitted by the committee appointed pursuant to the order of the Hon’ble High Court of Bombay, is sufficient to reach conclusion that Survey No. 25/2 is a private forest land. He argued that the report of the Forest Officer to the effect 6
that density of the tree cover in Survey No. 25/2, was “NIL” is patently untrue. He submits that the Respondents have attempted to suppress the facts. He further submits that the application is maintainable in as much as relief for restitution of the degraded forest land is covered by Section 15 of the National Green Tribunal Act, 2010 (for short, NGT Act) and filing of the application within a period of five (5) years from the date of cause of action is permissible . He contended that Respondent no. 1 illegally felled trees from Survey No. 25/2 in order to cause disappearance of the evidence which could establish identity of Survey No. 25/2 as private forest land.
He urged, therefore, to allow the
application in terms of the prayer clauses.
7.
Mr. Yashraj Deora, learned Counsel for Respondent No. 1 argued that
the application is barred by limitation. He contended that since the Writ Petition (PIL) No. 14/2011 was withdrawn by the Applicant, the Applicant cannot seek extension of period of limitation in as much as Section 14 of the Limitation Act, 1963 is not applicable to the present case. He would submit further that the application is filed under Section 14 of the NGT Act, 2010 which does not permit filing of the dispute after a period of six months from the date on which the cause of action has arisen. He would point out that the application itself reveals that somewhere in December, 2009, the Applicant noticed illegal felling of trees and therefore the cause of action started running from such date of knowledge. He further points out that by order dated 12 th December, 2010 withdrawal of the Writ Petition (PIL) No. 14/2011 was allowed by the Hon’ble High Court of Bombay and as such the Application is barred by limitation provided under the special enactment i.e. NGT Act, 2010.
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8.
Mr. Yashraj Deora further contended that the conversion sought by the
Respondent No. 1 is restricted to 2500 sq. mtrs. area out of Survey No. 25/2 and as such the reports of the concerned Forest Authorities are truth bearing. He contended that Survey No. 25/2 was not identified as private forest by either Sawant Committee or Karapurkar Committee. He contended that the third (3rd) Committee, constituted under orders of the Hon’ble High Court gave opinion on hypothetical basis. He submitted that the third (3rd) Committee’s Report cannot be the basis for declaration of land in Survey No. 25/2 as private forest. He further submits that google map is not of any help because the picture may depict even shrubs or small plants as green cover. 9.
Mr. Anuj Puri, learned Counsel for Respondent No. 4 (HPCL) supported
the above arguments. He submitted that felling of trees by the Respondent No. 1 was permitted because they were the old and matured trees. He further argued that there is no tangible evidence to infer existence of 75% of the forest cover in the land in question. According to the learned Counsel for Respondent No. 4, the Applicant has tried to mix-up the issues of conversion of a part of Survey No. 25/2 and felling of trees. Though, the tree growth in the area of 2500 sq. mtrs. was reported to be ‘Nil’ yet it is being erroneously projected as if the report is pertaining to the entire land. He argued that the report submitted by the Forest Authority was only in respect of 2500 sq. mtrs. area about which conversion permission was sought.
He argued that the Applicant could not establish
existence of more than 0.4 canopy density in the context of Survey No. 25/2. In other words, both the learned Counsel for the contesting Respondents contended that the land in Survey No. 25/2 cannot be termed as “private forest” by applying the settled yardsticks. Hence, they urged to dismiss the Application.
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10.
Considering the rival submissions, the following issues are required to be
addressed and answered. They are:(i).
Whether the application is barred by limitation and liable to be rejected
on this account? (ii).
Whether the area of 2500 sq. m, which has been converted for non-
agricultural use, under Sanad granted by the Additional Collector, Margao, is part of private forest land or that part itself is a private forest? (iii).
Whether the remaining area of Survey No. 25/2, excluding 2500 sq.
mtrs. out of 74,875 sq. mtrs. land of Survey No. 25/2 is a “private forest”? (iv).
Whether it is proved that the Respondent No. 1, by act of cutting the
trees from the Survey No. 25/2 has caused damage to the environment? If so, as to what extent and how restitution of the environment for such area is required to be made?
11.
So far as the question of limitation is concerned, it is pertinent to note
that the Applicant has come out with a case that the felling of trees was noticed somewhere in the month of December, 2009. The President of the Society made a complaint to the Deputy Conservator of Forest (in short, DCF) on 8th February, 2009.
There was no response to the complaint.
The Applicant, therefore,
requested for certain documents under provisions of Right to Information Act, 2005. He obtained copies of the correspondence made between the Respondent No. 1 and the Forest Officer. The application is filed on 6th June, 2012. It is obvious that if the dispute is considered to be regarding felling of trees only and the application is filed under Section 14 of the NGT Act, 2010 then the application for adjudication of such dispute can be said to be barred by limitation. 9
For,
Section 14(3) provides that the dispute has to be ventilated through application within a period of six months from the date of cause of action for such dispute. The Tribunal may extend the period of limitation only upto sixty (60) days thereafter. Further, if the application is covered by Section 15 of the NGT Act, 2010, having regard to the prayers of the Applicant, then period of five (5) years limitation is available to the Applicant. Herein, the Applicant seeks restitution of the environment of the area, in addition, to the prayer for revocation of the permission to convert part of Survey No. 25/2 to non-agricultural purpose. That permission (Sanad) was granted on the recommendation dated 1st November, 2007 of the Respondent No. 2. So, in case only the first clause of the prayer is considered then the application may appear to be barred by limitation.
The second prayer in the application may be reproduced for ready reference. It is prayed : “order of restitution of the balance 74875 sq.mts. of Survey No. 25/2 which has been deforested or degraded by respondent no. 1 in a manner and form that the Tribunal thinks fit.
The applicant submits that the
information provided by the Goa Forest Department provides the basis on which the respondent no. 1 should be ordered to pay for the forest to be restituted.” 12.
Mr. Yashraj Deora, learned Advocate for the Respondent No.1 argued
that the application is covered only under Section 14 of the National Green Tribunal Act, 2010 and as such is barred by Limitation. He would submit that the second prayer for restitution of the environment is dependent on first relief i.e. cancellation of the order in question. He argued that withdrawal of W.P. (PIL) No. 14 of 2011 by the Applicant on
5th March, 2012 will not be of any help to
extend the period of limitation. He points out that such withdrawal was without
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specific direction of the Hon’ble High Court of Bombay to condone the delay. He seeks to rely upon following authorities: a)
The Kerala State Electricity Board, Trivandrum vs. T.P. Kunhaliumme,
1976 (4) SCC 634, para 2-4, 9, 10-13, 16, 18, 20-22. b)
L.S. Synthetic Ltd. vs. Fair Growth Financial Services Ltd. and another,
2004 (11) SCC 456, para 32, 33 and 37-38. c)
France B. Martin and another vs. Mafalda Maria Teresa Rodrigues, 1999
(6) SCC 627, paras 2 and 3. 13.
Mr. Anuj Puri, learned Advocate for the Respondent No. 4 vehemently
argued that Section 14 of the Limitation Act is inapplicable to the present case and as such the delay cannot be condoned. He heavily relied upon Judgements of this Tribunal in “Thervoy Graman Munnetra Nala Sangam vs. Union of India and another” (Appeal No. 14 of 2011) and in “Shri Dilip Namdeo Dherange vs. Ministry of Environment & Forests” (Appeal No. 24 of 2012) 14.
We have gone through the above noted case law cited by the learned
Advocates. We do agree that if the application is covered only under Section 14 of the National Green Tribunal Act, 2010 and cannot be considered under Section 15 thereof then the same will have to be held as time barred. There cannot be duality of opinion that the Tribunal cannot grant extension of time beyond the statutory period expressly provided under the special enactment like the National Green Tribunal Act, 2010. Still, however, the second prayer of the Applicant falls within the period of Limitation i.e. within five years from the date of cause of action. We are of the opinion that the second relief sought by the Applicant is within prescribed period of limitation. The Application cannot be 11
outrightly rejected as the prayer for the restitution of land in question will have to be considered. In view of the forgoing discussion the objection raised by the Respondents No. 1 and 4 is not sustainable.
15.
The record shows that the said area is without any standing trees and is
rather having a gentle slope. It appears from the report of the Sub-Divisional Forest Officer, North Goa Division that during inspection density of tree growth in the area (plot of 2500 sq. mtrs.) was found to be “nil’. The inspection was carried out on 5th September, 2007. The inspection further revealed that the said plot is having a gentle slope and is without tree growth. It is further reported by the SubDivisional Forest Officer that the plot in question has not been identified as private forest by the SLEC and therefore provisions of Forest (Conservation), Act, 1980 are not applicable to the said land i.e. plot of 2500 sq. meters.
The
question is whether Survey No. 25/2 or any part thereof is “Forest” within the meaning of Section 2 of The Forest (Conservation) Act, 1980.
16.
Before adverting the above noted controversial issue, it is pertinent to
note that the land Survey No. 25/2 is not recorded as private forest in the concerned revenue record. A copy of Form No. I & XIV is placed on record. Perusal of the entries in the concerned record go to show that as on 9 th April, 2010 Survey No. 25/2 was shown to be a garden land, admeasuring 7.4875 ha. It goes without saying that the Government record did not show identity of Survey No. 25/2 as a private forest. So also, the entries in the revenue record Form No. I & XIV do not show existence of trees of forest species, much less particular number of such trees existing in the said land. The Applicant points out that the Sub-Divisional Forest Officer gave report regarding conversion of land from 12
agricultural to non-agricultural purpose, wherein it is stated that the density of the tree growth in the area in question (plot) is “Nil”. It is urged by the learned Counsel for the Applicant that when tree felling licenses were issued in favour of the Respondent No. 1 and there is the existence of certain trees, which are of forest species, the report that the tree growth was found to be “NIL” is obviously untrue. We do not agree with such contention of the learned Counsel for the Applicant. A careful scrutiny of the record shows that the reports of the SDFO and that of the other authorities were only in the context of 2500 sq. mtrs. of land out of Survey No. 25/2. The land was inspected by the SDFO on 5 th September, 2007. At the relevant time, it was found that the plot was having a gentle slope without any tree growth. The report submitted by the Deputy Conservator of Forests on 1st November, 2007 to the Additional Collector-II South Goa Dist., Margao-Goa cannot be said to be incorrect. It is true that the Respondent No. 1 had sought permission to fell certain trees from Survey No. 25/2 on two (2) occasions, in 2006 and 2009. It is also true that some of the trees are of forest species. Still, however, there is no reliable material placed on record to show that those trees were standing on the plot of which conversion was sought by the Respondent No. 1 from agricultural to non-agricultural use. Consequently, it is difficult to infer that the plot comprising of 2500 sq. mtrs. is or was a private forest.
17.
Perusal of the record shows that the Government of Goa has laid down
certain criteria for identification of “Private Forest”. Copy of the said order is placed on record. That order dated 4th September, 2000 reveals that a committee was constituted as State Level Expert Committee comprising of seven members
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under chairmanship of Dr. Hemant Karapurkar.
The criteria/guidelines for
identification of the properties as forest were set out as follows:(i).
75% of the composition should be of forestry species.
(ii).
The area should be contiguous to the government forest and if in
isolation should be more than 5 ha. (iii).
Tree cover canopy density should not be less than 0.4.
18.
The Terms of Reference (TOR) to the State Level Expert Committee
headed by Dr. Karapurkar go to show that the Committee was called upon to identify such private forest lands with a view to mutate all such identified areas in the land records to show the classification as “Forest”.
Before constitution of the SLEC under the Chairmanship of Dr. Hemant Karapurkar, one such Committee was earlier constituted under the Chairmanship of Shr. S.M. Sawant, in pursuance to the Hon’ble Supreme Court’s order dated 12th December, 1996 in “T.N. Godavarman Thirumulpad Vs. Union of India & Ors”. It is undisputed that Sawant Committee did not identify Survey No. 25/2 as a private forest. So also Karapurkar Committee did not identify Survey No. 25/2 as a private forest land. Thus, the two (2) Committees did not find that any part of Survey No. 25/2 fulfills the above referred three criteria. 19.
The main plank of the Applicant’s contention is founded on third (3rd)
report given by the Committee constituted vide order of the Hon’ble High Court of Bombay, Bench at Goa, in W.P. (PIL) No. 14/2011. By order dated 27th June, 2011 Division Bench of the Hon’ble High Court directed the Committee to give report, after spot inspection, whether Survey No. 25/2 is or was a forest. By 14
communication
dated 2nd April, 2011 the report of the Third Committee was
submitted to the Hon’ble High Court of Bombay, at Goa. The first paragraph of the report shows that the report was prepared on the basis of the field verification and data submitted by the Applicant, Respondents and Forest Officer.
The
Committee noted that about 18000 sq. mtrs. area of vegetative cover, was bulldozed and leveled. It was also found that a Petrol Pump has been installed in the area of 4000 sq. mtrs. and remaining area was kept open without any development. It was further noticed that the Respondent No. 1 had planted 20 coconut seedlings in the open area. 20.
Upon close scrutiny of the third (3rd) report, it will be amply clear that
there is no substantial reason ascribed for deviation from findings of earlier two committees. The SLEC opined that the topography of the area is undulating and is having vegetation with “predominance of forest species”.
This opinion is
rendered in the context of two (2) parcels of lands bearing Survey No. 25/2 and Survey No. 25/1-A. The Committee found that forestry species like Matti, Kindal, Zamba, Sirus, Ghoting, Nano Sissam, Kawach, Dhaman, Sewar etc. were existing in the said lands. The third (3rd) report does not, however, clarify the number and species of such trees and the identity of location of such trees separately in context of land Survey No. 25/2 and Survey No. 25/1-A. In the present case, we are only concerned with Survey No. 25/2. In absence of any reliable material, vague report of the third (3rd) Committee appears to be nonclinching on the controversial issue. Moreover, the report does not show 75% of the composition of forest species in Survey No. 25/2 during the course of inspection.
What the third (3rd) Committee, ultimately opined is that if it is
presumed that there were about 70 – 80 trees in the bulldozed portion of 18000 sq. m prior to the development of property of the Respondent No. 1, the area 15
could be identified as a private forest as per the criteria prescribed by the Government of Goa. Again, this opinion does not expressly cover the entire land in Survey No. 25/2. There is ambiguity as to whether the opinion is restricted to the bulldozed portion and 18000 sq. m or is in the context of the entire 74875 sq. mtrs. area of Survey No. 25/2. The third (3rd) Committee report appears to be based on presumptions. It is true that the adjacent land is a Government forest. The third (3rd) report also does not show that tree cover canopy of the land in question is, in fact, as per the required standard so as to definitely identify Survey No. 25/2 as a private forest. The third (3rd) Committee gives following opinion : “(i).
the area of 18000 sq. m out of 74800 sq. m within the Survey No. 25/2 of
Sangod Village is presently devoid of any vegetative tree cover. (ii).
If the trees were not removed by any of licenses granted by the
competent authority and illegally felling, the area would have harboured similar vegetative cover as is presently existing in the immediate surroundings”
It is amply clear from such findings of third (3rd) Committee that its second finding enumerated as above, is based upon “ifs” and “buts”. In other words, it is only hypothetical opinion. Under these circumstances, we are unable to accept such opinion of the third (3rd) Committee. It follows therefore that neither part of Survey No. 25/2 is proved to be a private forest.
21.
Learned Counsel for the Applicant Shri Ritwick Dutta invited our attention
to observations of the Apex Court in the case of “T.N. Godavarman Thirumulpad Vs. Union of India & Ors.” (1997) 2 SCC 267. The Apex Court observed :
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“The word “forest” must be understood according to its dictionary meaning. The term “forest land” covering in Section 2 of the Forest (Conservation) Act, 1980 will not only indicate “forest” as understood in the dictionary meaning but also any area related as forest in the government record irrespective of ownership.” So, even private forest if so identified, would attract provisions of the Forest (Conservation) Act, 1980. It is in the wake of said order that State of Goa constituted 1st SLEC under Chairmanship of Shri Sawant.
It need not be
reiterated that Sawant Committee as well as Karapurkar Committee did not identify Survey No. 25/2 as a private forest land. The opinion of the third (3rd) Committee, constituted under order of the Hon’ble High Court is founded on hypothetical and imaginary guess work.
22.
In subsequent Judgement, in RE: Construction of Park at Noida near
Okhla Bird Sanctuary, Anand Arya and Another vs. UOI &Ors. (2011) 1 SCC 744, the Hon’ble Supreme Court clarified the legal position. The Hon’ble Supreme Court observed : “ 35. Almost all the orders and judgments of this Court defining “forest” and “forest land” for the purpose of the FC Act were rendered in the context of mining or illegal felling of trees for timber or illegal removal of other forest produce or the protection of national parks and wildlife sanctuaries.
In the case in hand the context is completely different.
Hence, the decisions relied upon By Mr. Bhushan can be applied only to an extent and not in absolute terms. To an extent Mr. Bhushan is right in contending that a man-made forest may equally be a forest land may 17
also, with the passage of time, change its character and become forest land. But this also cannot be a rule of universal application and must be examined in the overall facts of the case otherwise it would lead to highly anomalous conclusions. 36.
Like in this case, Mr. Bhushan argued that the two conditions in
the guidelines adopted by the State
Level Expert Committee i.e. (i)
“trees mean naturally grown perennial trees”, and (ii) “the plantation done on public land or private land will not be identified as forest like area: were not consistent with the wide definition of forest given in the 12-12-19961 order of the Court and the project area should qualify as forest on the basis of the main parameter fixed by the Committee. If the argument of Mr. Bhushan is accepted and the criterion fixed by the State Level Expert Committee that in the plains a stretch of land with an area of 2 ha or above, with the minimum density of 50 trees per hectare would be a deemed forest is applied mechanically and with no regard to the other factors a greater part of Lutyens Delhi would perhaps qualify as forest.
This was obviously not the intent of the order dated 12-12-
19961.” 23.
The Applicant also placed reliance on google map in support of its
contention that both parts of Survey No. 25/2 were having dense vegetative cover. The Google Map is of not much help. In the judgment referred above, the Apex Court observed that the satellite image may not reveal the complete story. Therefore, much reliance cannot be placed on the Google Map produced by the Applicant.
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24.
In “Tata Housing Development Company Limited and Another Vs. Goa
Foundation and Ors.” (2003) 11 SCC 714 a similar question is examined by the Hon’ble Supreme Court. In that case also earlier two (2) reports indicated that the plot in question did not satisfy the required criteria for identification thereof as private forest. However, third SLEC report was submitted to the contrary of the two (2) earlier reports. The Apex Court held that the third (3rd) interim report could not have been accepted by the Hon’ble High Court.
25.
In “Sri Ram Shah Vs. State of W.B. and Ors.” (2004) 11 SCC 497, the
Apex Court held that wherein entries in the record of rights indicated that the land was classified as ‘bagan’ (garden) the owner was not required to seek permission for felling of trees. Of course, that finding is in the context of interpretation of Section 4 of the W.B. Land Reforms Act, 1955. Herein, the Applicant has not furnished any scientific data in order to show that there is/was a composition of 75% of forest species in Survey No. 25/2. It is not proved that there is or was density of 75 trees per ha, which could be of forest species, so as to identify Survey No. 25/2 as deemed forest. Under these circumstances, we are of the opinion that the Applicant failed to prove that Survey No. 25/2 is a deemed private forest.
26.
We may take note of the manner in which the impugned order has been
rendered by the Additional Collector whereby permission was granted for conversion of a part of Survey No. 25/2 to non-agricultural use.
On careful
scrutiny of the record it transpires that the Respondent No 1 submitted application for conversion of 2500 sq. mtr. area out of Survey No. 25/2 for nonagricultural purpose. Copy of the said application (A-4 P14) clearly shows that 19
only 2500 sq. mtrs. area was sought to be converted for non-agricultural purpose, namely, establishment of Petrol filling Station. The application was submitted on 11th July, 2006 to the Collector of South Goa. It was duly processed. The report of Deputy Conservator of Forests was called upon in order to verify whether the land in question is a Government forest or not. The permission granted to the Respondent No. 1 is rather classic example of non-application of mind by the concerned authority, namely, Additional Collector, South Goa. A bare perusal of the relevant permission for conversion of Survey No. 25/2 to the extent 2500 sq. mtrs. area goes to show that it was categorically granted for conversion of the land for “construction of residential house property”. The conversion of land was not specifically permitted for any commercial purpose as such though the permission was sought for installation of petrol filling station yet it was erroneously considered as permission for conversion of said land to residential use. The text of the impugned order need not be fully reproduced yet the relevant portion thereof may be reproduced in order to show as to how there is total failure of the competent authority to apply its mind to the nature of permission sought by the Respondent No. 1.
The permission letter (Sanad) dated 2nd April, 2008
reads, at the end of first paragraph as follow:
“From a Survey No. 25/2 admeasuring 2500 sq. mtrs. be the same a little more or less for the purpose of residential use only.”
The permission letter further shows that the Respondent No. 1 was under obligation to commence the construction work within one year of issuance of the said permission. Thus, the Additional Collector granted the permission (Sanad) for the conversion of the 2500 sq m area for the purpose of “residential 20
use only”.
The permission (Sanad) does not remotely refer to permission to
install a petrol filling station. Needless to say, the permission (Sanad) dated 2nd April, 2008 cannot be said to be for conversion of the land to commercial use. The Respondent No. 1 did not get the said permission (Sanad) rectified. Nor, it is the case of the Respondent No. 1 that there is any typographical error or factual error in the letter of permission (Sanad). We cannot assume, therefore, on our own, that there could be error committed by the competent authority and actually permission (Sanad) is granted for conversion of the land for commercial use of the Respondent No. 1. Faced with this difficulty, we are of the opinion that the impugned order (Sanad) is absurd and non-est in the eye of law.
27.
We have noticed the fact that though the Respondent No. 1 was allowed
to convert area of 2500 sq. mtrs. of the agricultural land in Survey No. 25/2 for residential purpose yet he did not use the land for construction of any house property as such.
Secondly, instead of clearing 2500 sq. mtrs. area, he
bulldozed the earth from 18000 sq. mtrs. area. So also, instead of 2500 sq. mtrs. area, he utilized 4000 sq. mtrs. area for installation of the Petrol Pump. Needless to say, under pretext of the said conversion permission (Sanad) the Respondent No. 1 got cleared vegetative cover from much excessive area. We are not, however, Appellate Authority against order of the Additional Collector in as much as the present application does not come within the ambit of Section 16 of the National Green Tribunal Act, 2010. However, it is necessary to ensure protection of environment in the area by applying “precautionary principle”. For, it is more probable that vehicular traffic will increase in the area due to existence of the Petrol Pump. The heavy vehicles and vehicles like tractors, diesel cars, etc., may cause air pollution.
The Collector may consider the relevant aspects before 21
exercising discretion to grant the necessary permission to the Respondent No. 1. We do not, however, find it necessary to give any opinion on merits of the matter in the context of probability of air pollution and the extent thereof. The Collector also may take notice of excessive clearance of the 15500 sq. mtrs. area though the permission sought was only for 2500 sq. mtrs. area.
28.
For the reasons aforestated, we dismiss the application with no order as
to costs. We direct the Respondent No. 1 to maintain status quo and not to operate the Petrol filling station until appropriate permission is granted by the competent authority, which may impose conditions such as plantation of the bulldozed area at the cost of the Respondent No. 1, under supervision of the Forest Department, or alike, or may refuse the permission as may be deemed proper. The application is accordingly disposed of.
………...…………….……………., JM (V. R. Kingaonkar) ..……..……….……………………., EM (P.S. Rao) ..……..……….……………………., EM (Dr. P.C. Mishra) ……………….……………………., EM (Ranjan Chatterjee) ……………….……………………., EM (Bikram Singh Sajwan)
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