BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE APPLICATOIN NO.19 (THC) OF 2013
CORAM:
HON’BLE SHRI JUSTICE V.R. KINGAONKAR (JUDICIAL MEMBER) HON’BLE DR. AJAY A. DESHPANDE (EXPERT MEMBER)
B E T W E E N:
1. NISARGA, a Registered Society, Registered by its President, Sandeep Azrenkar, with office at: A-7, Kurtarkar Classic, Near Power House, Aquem, Margao, Goa.
2. THE GOA FOUNDATION, A registered Society, represented By its Secretary, Dr. Claude Alvares, With office at: G-8, St. Britto’s Apartments, Feira Alta, Mapusa, Goa.………APPLICANTS
Page 1 (J) Appln. No. 19 (THC) of 2013
AND
1. ASSISTANT CONSERVATOR OF FORESTS, Forest Department, North Goa Division, Ponda,Goa 2. THE CHIEF CONSERVATOR OF FORESTS, Maratha SamajBldg, Panaji, Goa. Collector (North) Panaji, Goa. 3. STATE OF GOA THROUGH CHIEF Secretary, Secretariat, Porvorim, Goa. 4. COLLECTOR (NORTH) Panaji, Goa. 5. M/S. GOOD LUCK DEVELOPERS, Ahmad Mansion, Ambaji, Fatorda, Salcete, Goa. 6. FARIDA SALAM KHAN 2nd Floor, Ahmad Mansion, Ambaji, Fatorda, Salcete, Goa. 7. MUJIB KHAN Chandra wada, H.No. 3303, Opp. Jawaharlal H.S.School, Fatorda, Salcete, Goa. 8. SAYED ABDUL RAZAK H.No. 485, Verna, Povalo, Salcete, Goa. 9. FATIMA IMRAN SHAIKH H.No. 2559, Carojem, Cuncolim, Salcete, Goa. Page 2 (J) Appln. No. 19 (THC) of 2013
10. SHAIKH SALIA Flat No. D-2, Gr.Floor.,MahanagarHsg Society, Madel, Margao. 11. RAFIK KHAN, F-5, Shilpa Apartments, Chandrawada, Fatorda, Salcete, Goa. 12. DAMODAR KHUSHALI GAONKAR R/o.Flat No. F-1, Valerona Plaza Bldg, Murida, Fatorda, Margao, 13. SADANAND MOLU DESSAI R/o. No. 6, Pradeep Apartments, Behind P.W.D. Office, Margao. 14. NARENDRA S. MATKAR H.No. 75, Ward No. 3, Budhwarpeth, Ponda, Goa. 15. RAMESH BHIKARO NAIK. C/o Vikrant Workshop, Tisk, Usgao, Goa. 16. DIPALI DATTAPRASAD KAMAT "Deep", Near Dada Vaidya School, Sindhudurga, Curti, Ponda, Goa. 17. PRATIKSHA PREMNATH DESSAI SF-I, Verekar Apartment, Silva Nagar, Ponda, Goa.
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18. ASHOK CHANDRAKANT GAUNS TiskUsgao, Ponda, Goa. 19. MASTANSAB MAKTOOM HUSSEIN GOVE C/o. A.K. Saudagar, G-4A, Rabiyan Yusuf Enclave, Nagar Masjid, Ponda, Goa - 403 401. 20. DEEPA RAMESH PATIL G-2, Sayyadri Villa, Near PMC School, Khadpabandh, Ponda, Goa. 21. OLINDA AGUIAR R/o Adan-wada, Mareaim, Tone, Ponda, Goa. 22. ABDUL SALAM KHAN H.No. 205, 1, Marcel Bhoma, Banastari, Goa. 23. SHAIKH TARANNUM BI SADIK R/oH.No. 14215, Durgabhat, Ponda, Goa. 24. RASHIKANT SHAMBU SALEKAR Bhindem, Bethora, Ponda, Goa. 25. ABDUL MAJEED MOHAMMAD Municipal Flat No. 11, Shantinagar, Ponda, Goa. 26. NASEEMA S. KUNJU Municipal Flat No. 11, Shantinagar, Ponda, Goa. 27. AMEER SHAIKH ADAM Flat No. FF/3, Sharifa Residency, Naga Masjid, Ponda, Goa.
Page 4 (J) Appln. No. 19 (THC) of 2013
28. YOGESH UMESH SAWANT Vadem, Ta1aulim, Ponda, Goa. 29. NITIN UMESH SAWANT Vadem, Talaulim, Ponda, Goa. 30. SACHIN UMESH SAWANT Vadem, Talaulim, Ponda, Goa. 31. HASAN ABDUL RAHMAN LASHKARVALE H.No. 172/41, Shanti Nagar, Ponda, Goa. 32. AMJAD HASAN LAKSHARWALE H.No. 172/41, Shanti Nagar, Ponda, Goa. 33. RAJ KUMARI M. SHARMA Ram Bhavan, Khadapabandh, Ponda, Goa. 34. VISHNU B. SHINDE B-5, VishnukamalHsg. Society, Nagazar, Curti, Ponda, Goa. 35. FATIMA BI MUL1A Al-AfmeenBungalow, Talem, Durghabhat, Ponda, Goa. 36. PRADEEP PANDURANG NAIK H.No. 172/47, Shantinagar, Ponda, Goa. 37. ALEXANDER A.A. ALBUQUERQUE H.No. 121, Near the Chapel, Khadpabandh, Ponda, Goa. 38. SHANTA ARUN GAUNEKAR R/o.Nagueshi, Bandora, Ponda Goa.
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39. AVA1ON FERRAO H.No. 69, Sadan, Near Municipal Library, Ponda, Goa. 40. MUNAF MULLA H.No. 83, Haveli, Curti, Ponda, Goa. 41. VISHANT G.·NAIK LaxmiNiwas, Near Mandar Building, Shantinagar, Ponda, Goa. 42. SHAKIB SHAIKH H.No. 223, Paptan Talli, Kavlem, Post Bandora, Ponda, Goa. 43. MUJIB AHMED KHAN C/o AbidUssen Khan, H.No. 21/11. Damodar Nagar, Curti, Ponda. 44. NITESH N. NAIQUE TARI H.No.869/2, "IshwarKunj", Pandga1-Shiroda, Ponda, Goa. 45. AbhishekRai H.No. 9-R, Alto Chicalim, Behind Cottage Hospital, Vasco, Goa. 46. M/s. Shikargah Investment &Trdg. Pvt. Ltd., SuvarnBandekar B1dg, Swatantra Path, Vasco. 47. Deepak AnantBandekar Raj Tara Bldg, F.L. Gomes Road, Vasco, Goa.
Page 6 (J) Appln. No. 19 (THC) of 2013
48. M/s. Vishwas Warehousing &Trdg. Pvt. Ltd, Dona Trisha, "C" Block, 1 stFl., Flat No. C/F1, P.O.Box 239, Dona PauIa, TaIeigao Village, Tiswadi, Goa. 49. Vrunda Dilip Camotim Ganekar R/o A/202,DukleBhavan, Near Lourdes Chapel, St. Inez, Panaji 50. Reshma Mustac Muzavor R/o S-A UG~3, Models Millenium, Caranzalem, Goa. 51. Amit M. Bandekar R/o Flat No. 3, Door No. 50-94-9/e,Revathi Apartments, Shantipuram, Visakhapatnam, Andhra Pradesh. 52. Shri. Kasim Syed Ali Manander H.No.10, Durgabhat, Ponda, Goa. ………RESPONDENTS
Counsel for Applicant(s): Mrs.NormaAlvares, Advocate.
Advocate, with
SupriyaDangare
Counsel for Respondent(s): Mr. DattaprasadLavande, Advocate for Respondent Nos.1 and 2. F.M.Mesquita, Advocate, Mr. Pradeep Verekar ACF/Shrikant R.Prabhu ACF for Respondent Nos. 3 & 4. Page 7 (J) Appln. No. 19 (THC) of 2013
Mr.H.D.Naik, Advocate with Advocatefor Respondent No.5.
Mr.
NitinSardessari
Mr.Ninad Laud, Advocate for Respondent No.30. Mr. AmayPhadte, Advocate for Respondent No.51. Mr.NitinSardessai, Advocates with Advocate for Respondent No.52.
P.Kuncolienkar
Date: August 8th, 2014
J U D G M E N T
1.
Originally, the Applicants filed Writ Petition
No.277 of 2009, in the Hon’ble High Court of Bombay, at Goa. In view of Bhopal Gas Peedith Mahila Udyog Sangathan & Anr Vs Union of India” (2012) 8, SCC 326, theWrit Petition
came to be transferred to this Tribunal and is registered as an Application noted above. The Applicant No.1, is a registered society represented by its President, namely, Sandeep Azrenkar. The Applicant No.2, is also registered as a Society represented by its Secretary, namely, Dr. Claude Alvares. 2.
First four Respondents are the State Authorites.
Out of them, the Respondent Nos.1 and 2, are the Assistant Conservator and Chief Conservator of Forests, whereas, the Respondent No.4, is the Collector, North Goa. The Respondent No.5, (M/s Good luck Developers), is the purchaser of part of land Survey No.156/1-B, of Page 8 (J) Appln. No. 19 (THC) of 2013
village
Bethora,
(PondaTaluka).
Admittedly,
he
has
developed the said property for commercial/residential purpose. The Respondent Nos.6 to 52, are the purchasers of the various plots of the said property. Needless tosay, they claim their rights through the Respondent No.5, who will be referred hereinafter as ‘Developer’. 3.
The case of the Applicants is that Survey
No.156/1-B of Bethora village is thickly forested since times immemorial and had been inaccessible by road until recently. This land is contiguous to the forest land. There are various forest species of trees standing in the said land and where, in fact, a large number of such trees were existing prior to 1998. Somewhere in 2004, a new bypass road was completed through the forests of Ponda, which passes through the lands in village Bethora. The Applicants noticed that some of the trees were selectively felled at several places with ill-intention to thin forest density and canopy cover. They also noticed that a part of forest was being denuded by making inroads to prepare the area for development. They made grievances to the forest department by letter communication dated May, 28th 2005, addressed to His Excellency – the Governor for protection of the forest areas. By filing a Writ Petition No.334 of 2006, the Applicant No.2, sought demarcation of forests on the private lands. The Hon’ble High Court Page 9 (J) Appln. No. 19 (THC) of 2013
passed an interim order dated October 17th, 2006, in that matter, directing the Authorities not to issue conservation ‘Sanad’ for any private property with tree cover without approval of the forest department. 4.
The Applicant No.1, learnt that there was a large
scale tree felling in Survey No.156/1-B, and that the forest department had carried out a panchanama at the spot. It was noticed upon due inquiry, in the month of March,2008, that some people had cleared a part of private forest and removed timber logs by using truck vehicles. An offence was registered against unidentified accused persons. On the date of panchanama i.e. on 29th February, 2008, in all 120 trees, within area of 4Ha were found to have been illegally cut of species including Kinder, Matta and other forest species. There was no permission obtained prior to felling of the trees. Those trees were being felled with malafide intention to destroy the forest cover, first with a view to support Application for conversation ‘Sanad’, which could be considered by the Respondent No.4.Though the Respondent No.1, issued “No Objection Certificate” (NOC), dated 11.3.2008, to the Additional Collector, stating that the land is not a forest, yet it is illegal, incorrect and improper. The NOC reveals that density of the tree cover as 0.3, but that is shown without taking into account 120 trees, illegally Page 10 (J) Appln. No. 19 (THC) of 2013
felled and actual canopy density available before 1998. Foliage in the adjoining and surround areas and copious that had regenerated on the plot testified to the fact that the area was and still is ‘forest’ and, therefore, ought to be declared as such by the Authorities. Land Survey No.156/1-B, would certainly qualify to be declared as ‘Private Forest’ likewise other lands, notwithstanding the fact that it was not so identified by Sawant or Karapurkar Committees in the past. The Applicant No.1, approached to the Chief Conservator of Forests (Respondent No.2) on 9.2.2009, with delegation of local villagers and requested him to form a Committee of forest officers to survey the plot to which he orally agreed. The Applicants came to know that the Developer has been granted conservation ‘Sanad’ dated 3.3.2009 by the Respondent No.3. NOC issued by the Respondent No.1, and the conversation ‘Sanad’ are illegal and liable to be quashed, being contrary to the orders of the Hon’ble Supreme Court in WP (Civil) No.202 of 1995i.e. Judgment in the matter
ofT.N.GodavarmanThirumulkpadvs Union of India (1997)2 SCC 267.The Applicants, therefore, seek quashing of NOC
as
well
as
conversation
‘Sanad’.
They
also
seek
restoration of land in question to its original status. Hence the Application.
Page 11 (J) Appln. No. 19 (THC) of 2013
5.
Byfiling
reply
affidavit,
the
Developer
(Respondent No.5) resisted the Application. He is the main
contesting
Party.
He
denied
that
the
land
SurveyNo.156/1-B, is a ‘Private Forest’. According to him, the Application is filed much after the said land is completely developed in all respects and therefore, the Application is liable to be dismissed on account of delay and latches. The Developer further alleges that adjoining land
Survey
No.151/1A,
is
owned
by
one
Shri.
VishwanathPrabhu and has already been fully developed. But the Application is filed only against the development in his land SurveyNo.156/1-B, selectively only after his completing permissions
development, and
after
approvals.
He
obtaining
all
the
averred
that
the
Application is thoroughly misconceived.
He contended
that he purchased part of Survey No.156/1-B, of village Bethora, and applied for sub-division of the property to the office of the Town Planner, Ponda. The Sarpanch of village Bethora, gave his NOC for causing sub-division of the said land. According to him, the plot of land purchased by him falls within ‘Settlement Zone’ and is not at all a part of ‘private forest’ and as such, could be developed for residential purpose. He asserted that as per his
Application,
the
Collector,
North
Goa,
issued
conversion ‘Sanad’ in his favour for use of land to NonPage 12 (J) Appln. No. 19 (THC) of 2013
Agricultural purpose in terms of Section 32 of the Goa Land Revenue Code, 1968. This conversion ‘Sanad’ was issued
after
receiving
consent
from
the
Deputy
Conservator of Forests, North Goa Divisoin. The land was not at all recognized as ‘private forest’ by the Revenue Authority, State Level Expert Committee, headed by Sawant and Dr. Karapurkar Committee. The density of tree cover is less than 0.3 and that the land in question did not meet the criteria fixed by the State Govt. According to the Respondent No.5, he has incurred huge expenditure
for
development
of
the
property
and,
therefore, now it would be inequitable to call upon him to restore the land under the hypothetical assumption that the disputed land is a ‘private forest’. He alleges that now, the land should not be declared as ‘private forest’ at such a belated stage, only because, the Applicants put forth such claim on basis of Google Imaginary Maps. He further alleges that he has purchased part of Survey No.156/1-B, from one Smt. SharmilaSatish Tendulkar, who is not a party to the present litigation and if any such adverse order is passed then, her rights are likely to be affected, without hearing her. On these premises, he sought dismissal of the Application. 6.
By filing affidavit in reply, the Respondent No.1,
resisted the Application on various grounds. He alleged Page 13 (J) Appln. No. 19 (THC) of 2013
that NOC dated 11.3.1008, was issued by his predecessor in the office to the Developer, in pursuance to the letter dated 6.3.2007, issued by the Additional Collector, North Goa, calling upon the report concerning applicability of the Forest (Conservation) Act, 1980, for the purpose of conversion of use of the land for NA use. He asserted that he
examined
the
issue
and
conducted
physical
verification of Survey No.156/1-B, of village Bethora. According to him, the plot in question does not fulfil the criteria to be qualified as ‘private forest’, because canopy density was only 0.3. He states that the classification of ‘private property’ under the private forests, as per the Goa Govt. norms, is as follows:
(i)
75% of dense composition should be the forest tree species,
(ii)
The area should be contiguous to the Govt. forest and have in isolation the minimum area should be 5 Ha,
(iii)
7.
The
Canopy density should not be less than 0.4.
contention
of
Assistant
Conservator
of
Forests, is that an offence was registered by the Rage Forest Officer, Ponda against the owner of property for illegal felling of the trees. The accused were put on trial in case No.1231/PTA/2008/A (State vs Shaikh Musthaq Page 14 (J) Appln. No. 19 (THC) of 2013
etc.), which is dismissed. He denied that the forest department officials have colluded with the officers by downplaying of the trees felled. He also denied that the Google Imaginary Map indicates existence of private forest at the location. 8.
The Conservator of Forests (Respondent No2.), filed
similar affidavit. He referred case of ‘Shivanand Salgaonkar Vs Tree Officer’ (Writ Petition No.162 of 1987) in which
Hon’ble High Court of Bombay, Bench at Goa, gave certain directions. According to him, the guidelines were derived in pursuance to the said Judgment and were applied by Dr.Karapurkar Committee for identification of ‘private forests’. He pointed out that two (2) Expert Committees, headed by Sawant and Dr. Karapurkar, completed exercise partly of identifying the ‘private forests’, based on the said criteria. He further pointed out that the land in question was not identified by either Committee, as ‘private forest’, nor it is recorded in the Revenue Record as ‘private forest’. His case is that the criteria for identification of ‘private forests’ is derived from the guidelines issued by the Hon’ble High Court in the above referred case. He denied that the report of Forests Survey of India (FSI), is applicable for the purpose of adopting the criteria to identify ‘private forests’.
Page 15 (J) Appln. No. 19 (THC) of 2013
9.
It may be noted that the purchasers of the land
in question, did not file any separate affidavit. There are rejoinders and additional affidavits filed by the parties, but it is unessential to reproduce the same, inasmuch as the repetition of fact and law, are required to be avoided. It may be, however, stated that the Respondent No.30, placed on record, written argument on his behalf, though no separate reply affidavit was filed by him. 10.
We have heard learned Counsel for the parties.
We have carefully perused the documents on record. The issues which arise for determination in this case may be stated as follows: 1. Whether the Application is barred by limitation and as such liable to be dismissed? 2. Whether the disputed parcel of land bearing Survey No.156/1-B, of Bethora village (PondaTaluka) is a ‘Private Forest’? 3. Whether the NOC issued by the Respondent No.1, and the conversion ‘Sanad’ issued by the Respondent No.4, in favour of Developer (Respondent No.5) are liable to be quashed, being illegal and untenable in the eye of Law, being contrary to the provisions of the Forest (Conservation) Act, 1980? 4. Whether the Developer (Respondent No.5), is liable to restore the land in question to its original position or for any compensatory relief, due to deforestation, without prior permission of the competent Authority for felling of trees standing in the land Survey No.156/1-B?
11.
Before we embark upon discussion of material
issues and rival contentions raised by the parties, it may Page 16 (J) Appln. No. 19 (THC) of 2013
be stated that the core issue is, whether the land Survey No.156/1-B, of village Bethora, is part of ‘private forest’ at least to the extent of area purchased by the Developer? At the outset, let it be noted that this land is not recognized as ‘private forest’ in the Revenue Record till the date since way back. It is an admitted fact that the Govt. of Goa appointed
two
(2)
Committees,
namely;
Sawant
Committee and thereafter Dr. Karapurkar Committee, to identify directions
‘private forests’ in Goa in pursuance to the of
the
Hon’ble
Supreme
Court
in
“T.N.Godavarman Thirumulkpadvs Union of India”.Even prior to that for State of Goa, guidelines were set out by the Hon’ble High Court of Bombay, Bench at Goa, while delivering the Judgment in Writ Petition No.162 of 1987 (Shivan and Salgaonkar Vs Tree Officer). The Hon’ble High Court of Bombay, Bench at Goa, in its Judgment dated 27.11.1990, held that the term “Forest” is not specifically defined under the Forest (Conservation) Act, 1980 and as such, it has to be given dictionary meaning. The guidelines for identification of the forest in private property were formulated in 1991, as follows: i)
Extent of area: Long term viability of a piece of forest land is an important consideration. Obviously, very small patches of forest cannot be viable in the long run from conservation Point of view. Therefore, a minimum extent of area will have to be determined to Page 17
(J) Appln. No. 19 (THC) of 2013
which
the
Forest
(Cons.)
Act,
1980
would
be
applicable in private and revenue areas not recorded as 'forest'. I propose that this area should be at least 5 hectares. It is not worthy that the Forest (Cons.) Act, 1980 and guidelines made there under do not prescribe any such minimum area for application of the Act. ii) Proximity and/or contiguity: The proximity of the private forests concerned to a larger forest area and / or its contiguity with the later area should also be an important aspect to consider while examining such areas. iii) Composition of crop: It is important to prescribe minimum standards in terms of crop composition in order to distinguish forest species from horticultural species. This is particularly relevant in State like Goa where occurrence of large number of cashew, jackfruit and coconut trees in private areas is a common feature. We may perhaps prescribe that at least 75 of the crop should comprise of forest species. iv) Crown density: It would not be meaningful to apply the Forest (Cons.) Act, 1980 to degraded and open areas under private ownership. Therefore, a minimum crown density of 40% may be adopted as a standard assessing the applicability of the Act in Such private and revenue areas which are not recorded as 'forests' in the land records.
12. In “T.N.Godavarman Thirumulkpadvs Union of India” the Apex Court gave directions to all the States to constitute an Expert Committee viz to :
(i) Identify areas which are "forests", irrespective of whether they are so notified, recognised or classified under, any law, and irrespective of Page 18 (J) Appln. No. 19 (THC) of 2013
the ownership of the land of such forest; (ii) Identify areas which were· earlier forests but stand degrade (denuded or cleared; and (iii) Identify areas cover~ 'by" plantation trees'" belonging to the Government and ongoing those belonging to “private persons.' 13. Pursuant to the said order the Govt. of Goa constituted a Committee on 24.1.1997, headed by Shri. Sandand Sawant. The Committee completed authorized work and submitted its report on 4.7.1997. The relevant factors as stated for identification of the forests as per the guidelines issued by Govt. of Goa for the purpose of identifying forests were as follows: (i)
75% of dense composition should be the forest tree species,
(ii)
The area should be contiguous to the Govt. forest and have in isolation the minimum area should be 5 Ha,
(iii)
Canopy density should not be less than 0.4 (i.e. 40%).
14. The second interim report of Sawant Committee, categorically rejected Satellite Imaginary and Topo-sheets, as one of the criteria for identifying the ‘forest’, for the reason that it would at the best show natural green cover, which would include plantations, seasonal crops etc. and Page 19 (J) Appln. No. 19 (THC) of 2013
the
same
cannot
be
a
relevant
consideration
for
classifying the ‘forests’. This part of the second interim report
of
Sawant
Committee,
is
rather
significant
inasmuch as now, the arguments of the Applicants is based upon the same criteria, which they seek to be used. What the Applicants have contended is that the Google Imaginary maps along with the reports that the area could be ‘open forests’ at one point of time, go to show that it is part of denuded forest, which has been cleared by the Developer. In our opinion, once criteria of Google Imaginary maps and Topo-sheets, is given descent burial by the second interim report of Sawant Committee, it would be unjust and improper to reapply and reconsider the same criteria for the present case. One cannot be oblivious of the fact that otherwise also the Google Imaginary
impressions
are
likely
to
give
incorrect
information, because the presence of greencover may include presence of shrubs, natural plantations, crops, non-forestry species of trees so on and so forth. The canopy density of such vegetation will have to be discounted for the purpose of identification of private forests. 15.
Admittedly, Dr. Karapurkar Committee was the
second Committee, appointed by Govt. of Goa for identification of forest lands in the State. Neither Sawant Page 20 (J) Appln. No. 19 (THC) of 2013
Committee, nor Dr. Karapurkar Committee, has identified land survey No.156/1-B, as ‘private forest’. There is hardly any evidence to show that the part of said land purchased by the Developer, is contiguous to the Govt. forests. As stated before, the said parcel of land is not recorded as ‘private forest’ in the revenue record. Thus, looked from any angle, it is difficult to say that the said land is a ‘’private forest’. 16.
On behalf of the Applicants, learned Counsel
invited our attention to recitals of the Panchanama dated 29th February, 2008. Perusal of the Panchanama, reveals that it was prepared by the Forest beatofficer in presence of two Panch witnesses. The witnesses found that in or about one and half month, 120 trees might have been felled in the area of about 4 Ha. The description of trees, would show that some of the trees were of forestry species. It also is a fact that the area was found to be cleared after felling of the trees standing in the land before 4.3.2008. We may take note that as revealed from the Report, on the day of inspection, crown density was found to be around 0.2 to 0.3. It is stated that adjoining areas of the land on north as well as west side was having thick vegetation with crown density of 0.6 to 0.8. The Committee couldnot give any opinion in view of the pendency of matters before the Hon’ble High Court. Page 21 (J) Appln. No. 19 (THC) of 2013
Another Committee, headed by Santosh Kumar, Assistant Conservator of Forests, submitted report to the Hon’ble High Court of Bombay, Bench at Goa, after inspection dated 30th March, 2010. It is pertinent to note that during course of such inspection, the Committee noted that plantation area is more than 5 Ha. The crown density is much less than 0.4. It is most important to note that the three (3) Members Committee, took into account 120 trees, which were felled and assumed that if that would not have been felled and were found standing, then also in the opinion of the Committee, the crown density still could be less than 0.4. Considering this assumptive fact too the Committee gave opinion that the land in question, does not qualify to be a forest land. 17.
Much emphasis was given on the observations of
the Indian State of Forests Report, 2009. The classifying scheme of forest cover map, as per ISFR is as follows: Very Dense Forest
All lands with tree cover of canopy density of 70% and above.
Moderately Dense Forest
All lands with tree cover of canopy density between 40% and 70%.
Open Forest
All lands with tree cover of canopy density between 10% and 40%.
Scrub
Degraded forest lands with canopy density less than 10%
Non-forest
Any area not included in the above classes.
Page 22 (J) Appln. No. 19 (THC) of 2013
18.
It is argued by the learned Counsel for the
Applicants that the lands with tree cover of canopy density between 10% and 40%, could be termed as ‘open forest’. It is further argued that when the Developer deforested a part of the land, it is difficult to make identification without taking a realistic view, based upon hypothesis like possibility, deforestation and conduct of the Developer. It is pointed out that deforestation work was done, muchprior to seeking the conversion ‘Sanad’. It is also pointed out that NOC was issued by the ACF in hush-hush manner and could not be treated as an approval of the forest department. We deem it proper to accept the part of such argument.
In our opinion,
conduct of Developer shows that without obtaining permission for tree cutting a large number of trees were felled from land Survey No.156/1-B, in or about in the month of February, 2008. Many of felled trees were burnt and some logs were found at the spot. From conduct of the Developer, it is emphasized that he personally or through some henchman got the area fired with a view to seek NOCs from the Forest Department.
We do not,
however, find merit in the argument that the land in question, is a private forest, but was shown having density of less than 0.3, in order to suppress true facts.
Page 23 (J) Appln. No. 19 (THC) of 2013
We have not come across any tangible material to reach such conclusion. 19. The
legal
position
is
further
clear
from
the
Judgment in “Tata Housing Development Co. Ltd &AnrVs Goa Foundation and Ors” (2003 11 SCC 714). The Apex
Court, in the given case held that: “When the earlier two (2) reports indicated that the plaint in question did not specify the required criteria for identification thereof as a private forest, 3rd SLEC report submitted contrary to the earlier two (2) reports, could not have been accepted by the Hon’ble High Court. “
The present case stands on similar footing and, therefore,
we
find
it
difficult
to
countenance
the
argument of the Applicants, which is mainly upon Google Imaginary maps and SFR observations in the context of ‘open forests’ classification, which is not yet categorized under any definition, within the meaning of the Forest (Conservation) Act, 1980, or the criteria adopted by the State Govt. 20. Taking stock of the foregoing discussion and the reasons, we are of the opinion that the Application is destitute of substance. However, it is manifest that the Developer got cleared part of the area without obtaining prior permission for felling of trees in his overzealous Page 24 (J) Appln. No. 19 (THC) of 2013
attempt to obtain NOC from the Forest Department. The Developer wanted to commence the development process as expeditiously as possible. His attempt was to make early profiting business. The Law should not have been broken by him in doing such development activities, either by himself or through any Agency. His acquittal from criminal charges, would not absolve him from civilliability/responsibility. He did not give any report about the incident of felling of trees from his property to the police. He did not take any action against the culprits, nor did he make any attempt to arrest further loss of vegetation by taking early action, when felling of the trees was noticed. It cannot be said that he might not have noticed felling of trees immediately. His conduct of keeping silence by itself would amount to connivance or attempt to willful removal of the trees/degradation of environment. Hence, he is liable for compensatory afforestation. 21. In the result, we partly allow the Application and partly dismiss the same as follows: (I)
The Application, as regards main prayers in respect of declaration and restoration of land, is dismissed.
(II)
The
Respondent
No.5,
(Developer),
is
directed to pay an amount of Rs.24,00,000/Page 25 (J) Appln. No. 19 (THC) of 2013
(Twenty Four lakhs) for the purpose of afforestation, which shall be credited to the account of State Forest Department,within period of four (4) weeks. If the Amount is not so credited then it be recovered with interest @ 18% P.A. from today till date of recovery and
shall
be
utilized
for
afforestation
purpose. (III) The Chief Conservator of Forest, shall give six (6) monthly report about the progress of afforestation work to this Tribunal. (IV) The above amount shall be deposited by the Respondent No.5, in the office of Chief Conservator of Forests, State of Goa within period of four (4) weeks. In default of payment,
all
the
properties
of
the
Respondent No.5, shall be confiscated and sold in auction by the Collector, North Goa, and sale proceeds shall be deposited with the office of Conservator of Forests, as if, it is land revenue arrears. (V)
The
Respondent
No.5,
shall
pay
Rs.
1,00,000/- (One lakh) as costs of litigation to the Applicants and shall bear his own costs.
Page 26 (J) Appln. No. 19 (THC) of 2013
…….…………….………………., JM (Justice V. R. Kingaonkar)
…...….…….……………………., EM (Dr. Ajay.A. Deshpande) Date : August 8th,2014.
Page 27 (J) Appln. No. 19 (THC) of 2013
Page 28 (J) Appln. No. 19 (THC) of 2013
