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Judgment
In this Application the applicant has raised the issue of violation of Forest (Conservation) Act, 1980 by Respondents Nos. 4 to 8 in Khasra No. 512, 514 and 605 of Khata No. 2 of Narendra Nagar in District Tehri, Uttarakhand. The Applicant has submitted that Khasra No. 512 & 514 of Khata No. 2 of Narendra Nagar in Tehri District is private forest and Khasra No. 605 admeasuring about 2.32 ha which is adjoining to Khasra No. 512 & 514 is full of lush green with well grown trees and is, therefore, covered within definition of forest as per dictionary meaning.
On application filed by the Applicants the Tribunal had, on 11.04.2017, directed for site inspection to be done by the Forest survey of India and to file a report. In compliance thereof, site inspection was conducted on 01.05.2017 by Shri Sanjay Rawat S.T.A., FSI HQ, Dehradun and Shri Rajesh Kumar, JTA, FSI Zonal Office Shimla. Their observations about changes in forest cover in Khasra No. 512, 513, 514 and 605 during the year 2008, 2011, 2013 and 2017 are as follows:-
23rd Oct, 2008(LISS III)
08th Oct, 2011 (LISS III)
MDF
OF
Total Forest
NF
Total
MDF
OF
Total Forest
NF
Total
Khasra No. 512
3.97
0.00
3.97
2.45
6.42
4.07
0.42
4.49
1.93
6.42
Khasra No. 513
0.26
0
0.26
0
0.26
0.26
0
0.26
0
0.26
Khasra No. 514
4.07
6.30
10.37
3.72
14.09
4.07
7.06
11.13
2.96
14.09
Khasra No. 605
7.46
7.26
14.72
3.3
18.02
6.2
5.68
11.88
6.14
18.02
26th Nov, 2013 (LISS III)
30th Jan, 2017 (Sentinel Data)
MDF
OF
Total Forest
NF
Total
MDF
OF
Total Forest
NF
Total
Khasra No. 512
4.28
0.42
4.70
1.72
6.42
5.00
0.00
5.00
1.42
6.42
Khasra No. 513
0.26
0
0.26
0
0.26
0.22
0
0.22
0.04
0.26
Khasra No. 514
3.92
6.36
10.28
3.81
14.09
4.63
6.74
11.37
2.72
14.09
Khasra No. 605
5.57
5.21
10.78
7.24
18.02
3.42
6.1
9.52
8.5
18.02
It may be seen that in the report filed by FSI the area of Khasra Numbers in question are given as:-
Khasra No. 512 - 6.42 ha.
Khasra No. 513 - 0.26 ha.
Khasra No. 514 - 14.09 ha.
Khasra No. 605 - 18.02 ha.
It has further been observed that of the four Khasra numbers, progressive degradation in forest cover is observed in Khasra No. 605 and same is also corroborated by field visit. It has also been stated that this is due to construction of Golf course and other buildings in the area. Photographs of Khasra No. 605 depicting the same has also been given in the report.
Relying on the report of the Forest survey of India, the Applicant has alleged that provisions of Forest (Conservation) Act, 1980 has been contravened by taking up non forestry activities in Khasra No. 512, 514 and 605.
Respondent No. 4 & 5 have submitted that in the revenue records Khasra No. 512, 513, 514, 605 and 606 is recorded in the name of the Respondents, after it was purchased from Maharaja Manujendra Shah. The Respondents have annexed the Report of the Joint Inspection conducted on 28.06.2016 by the officials of Revenue and forest department wherein it has been stated that the Reserve Forest Land is adjoining Kunjapuri Cell No.2 and that no encroachment was found on the forest land. No encroachment was found on civil land, by the Bhumidars.
State Respondents No. 2 & 3 in their counter affidavit filed on 13.01.2017 have stated as follows:-
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(5) That in Khasra No. 512, 513 & 605 (Khataunikhata no.2) of revenue village-Narendar Nagar, Tehsil Narendra Nagar, District Tehri Garhwal a Hotel/Villa is being constructed by Mahananda Spa and Resort Pvt. Ltd. since 2010-
The land in question in which the construction is being carried out is neither the reserved forest nor is recorded as forest in the record of forest department.
(6) That the Sub Divisional Magistrate, Narendra Nagar vide letter dated 05.09.2016 has informed the Divisional Forest Officer, Narendra Nagar Forest Division (hereinafter referred to as "deponent herein") that Khasra No. 512 and 513 (Khatounikhata no. 2) of revenue village Narendra Nagar is recorded as Private Forest in the revenue record and Khasra No. 605 is recorded as barren (Banzar) land. After receiving such information the deponent issued notice to the respondent no. 4, who is the director of Mahananda Spa & Resorts Pvt. Ltd. on 28.09.2016 to stop the construction, and produce the sanction of Central Government. True copies of letter dated 05.09.2016 submitted by the S.D.M. Narendra Nagar and notice dated 28.09.2016 issued by the deponent herein to the Respondent No. 8 are being annexed as Annexure R-2/1 & R-2/2 to this counter affidavit.
(7) That the deponent herein vide its letter dated 28.09.2016 had also sought direction from the Additional Chief Conservator of Forest/Nodal Officer, Uttarakhand, Dehradun to proceed against the construction agency Mahananda Spa & Resorts Pvt. Ltd in accordance with Section 2/3 of the Forest (Conservation) Act, 1980. The copy of letter dated 28.09.2016 submitted by the deponent is being annexed as Annexure R-2/3 to this counter affidavit.
(8) That since certain trees were damaged during aforesaid construction, therefore, fine was imposed on the erring persons by the Shivpuri Range of Narendra Nagar Forest Division under section 4/10 of the U.P. Protection of Trees in Rural and Hills Areas Act, 1976, which provides restriction on felling and removal of trees including holding and penalty.
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Subsequently, on 19.12.2018 we had directed the Regional Office of the Ministry of Environment & Forest at Dehradun to visit the site and submit a status report. In compliance of our direction a Committee comprising Ms. Komal Preet, CF and Dr. S.C. Katiyar, Scientist E inspected the site on 05.01.2019. During site visit Range officer, Narendra Nagar Forest division and Kanungo from the officer of SDM Narendra Nagar were also present. Site Inspection Report was filed on 17.01.2019 and the observations recorded in the inspection report are as follows:-
Observations during site visit:
Status of Khasra No. 512, 513 and 605 in revenue records and as per site inspection:
Sl. No.
Khasra No.
Ownership as per revenue records
Status of construction
Vegetation cover
01
512
Private land
Villas constructed
Sparse
02
513
Private land
Villas constructed
Sparse
03
605
Private land
Partly under villas already constructed and partly under Westin Resort under construction
Sparse
As per the revenue records, the ownership of Khasra No. 512, 513 and 605 are 'nap' or private land.
The revenue records have not been updated since 1938 and the status of land for khasra no. 512 and 513 is 'niji van' or private forest while for khasra no. 605 is 'banjar' or barren.
The land was not considered as deemed forest by the forest department in report filed in the Godavarman case.
At present, khasra no. 512 and 513 and part of 605 are having independent villas which are devoid of any natural vegetation.
Owner of the project denied having any rights in khasra no. 514.
On a portion of khasra no. 605, a resort in the name of Westin Resort is being constructed. During the site visit the construction was seen going on at the resort.
There is no evidence of blasting and representatives of both the revenue and forest department denied the same. It was also informed that the land is devoid of hard rocks and hence blasting is not required for any construction activity.
The construction site adjoins civil land at its back side which was seen having natural vegetation akin to miscellaneous degraded forest having mostly shrubs and few trees.
There was no sign of any fresh tree felling at the site. As per the forest department, illegal felling was reported and booked under U.P. Tree Protection in Rural and Hilly areas Act 1976 of the state during the year 2011-12 for 34 no. of trees and year 2015-16 for 16 no. of trees (annexure II).
The land is already broken and construction going-on over major part of the khasra 605 and adjoining land also bears only degraded forest land with miscellaneous species, and has also not been marked as deemed forest by the forest department, hence in its present state it does not qualify as deemed forest on the basis of the vegetation on khasra no. 605.
Since khasra no. 605 was recorded as 'banjar' or barren in the year 1938 in revenue records, which have not been updated, hence continue to be reflected as banjar. As per the directions of the Hon'be Supreme Court in the matter of T.N. Godavarman, Forest Conservation Act, 1980 would be applicable to all such lands recorded as forest in revenue records irrespective of the ownership, hence land under khasra no. 605 would not attract Forest (Conservation) Act, 1980. (Annexure II)
Khasra no. 512 and 513 have been recorded as private forest in the revenue records, hence would attract the provisions of Forest (Conservation) Act, 1980 over which construction has already been completed in the form of villas. (Annexure II)
It has been clearly stated in the Inspection report filed by the Regional office of the MoEF that Khasra No. 512 & 513 are 'niji van' , i.e. Private forest land and Khasra No. 605 is banzar or barren and that all these three Khasra numbers are private land. It has further been stated that Khasra No. 512 & 513 would attract the provisions of Forest (Conservation) Act, 1980 and constructions have already been completed over it. It has also been stated that Khasra No. 605 would not attract the provisions of Forest (Conservation) Act, 1980.
The Applicant in their response to the report filed by the Regional Office of MoEF had asked for the report which had been filed by the Forest Department in the case of Godavarman. They have submitted that as per their knowledge no such report has ever been filed.
It is relevant to note that from the copy of the Khatauni annexed with the application Khasra No. 512, 513 & 514 admeasuring 7.156 ha, 0.843 ha & 9.718 ha is in the same of Maharaja Manujendra Shah S/o Late Maharaja Manvendra Shah and Queen Mother Surajkuwar Shah. The area of Khasra No. 605 which is shown as barren is 10.394 ha. It is noteworthy to recall that the area of Khasra No. 605 was shown in the report of the forest survey of India as 18.02 ha. Respondents No. 9 along with their reply filed on 31.01.2019 has annexed Khatauni record for Khasra No. 605. It has been stated therein that the land does not have any forest cover and that it is on record that whatever trees which had been cut by the villagers have already been compounded under local trees Act, by the appropriate authorities. The record annexed therein shows that crop was grown in Khasra No. 605, from 'Fasali Varsh' 1384 onwards.
In the facts and circumstances mentioned above we hold as below:-
(i) We hold that Khasra No. 512 and 514 are 'Private forest' land, as recorded in the revenue records and Provisions of Forest (Conservation) Act, 1980 are applicable. We, therefore, direct the Forest Department and MoEF to initiate proceedings for violation of Forest (Conservation) Act, 1980 in Khasra No. 512 & 513 for non-forestry activities by way of raising constructions, if such constructions had been undertaken without obtaining prior approval of MoEF. It has been stated that there are independent villas in Khasra No. 512 & 513. We also direct the Forest Department to conduct enquiry to find out the persons/officials responsible for the violation, if any and to proceed against them in accordance with law.
(ii) The observations of FSI with regard to Khasra No. 605 are not conclusive and cannot be relied upon. The area of Khasra No. 605 in the report submitted by FSI is given as 18.02 ha whereas as per Revenue record it is 10.394 ha. We cannot arrive at any conclusion as to which part of the Khasra No. 605 had been degraded as the area of Khasra No. as given in FSI report is significantly more than the area recorded in the revenue records. In the absence of any report on deemed forest filed by the Forest Department, we would go by the site inspection report of the Regional office which is based on the revenue records and the existing character of the land. We, therefore, accept the observations given in the site inspection report of the Regional Office of the MoEF wherein it has been stated that Khasra No. 605 is non-forest land and Provisions of Forest (Conservation) Act, 1980 will not be applicable.
Accordingly, OA No. 626/2016 is disposed of, with no order as to cost. As the main Application has been disposed of, the M.A. No. 1672/2018, I.A. No. 05/2019 & I.A. No. 214/2019 do not survive for consideration and it is accordingly dismissed.