Nisarga And Ors vs Assistant Conservator Of Forests And Ors

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.

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 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'.

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, 28 th 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 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.

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 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 of T.N. Godavarman Thirumulkpadvs 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.

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 development, after obtaining all the permissions and approvals. He 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 Non- 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.

By filing affidavit in reply, the Respondent No.1, resisted the Application on various grounds. He alleged 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) Canopy density should not be less than 0.4.

The 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 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.

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'.

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.

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:

Whether the Application is barred by limitation and as such liable to be dismissed?

Whether the disputed parcel of land bearing Survey No.156/1-B, of Bethora village (PondaTaluka) is a 'Private Forest'?

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?

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?

Before we embark upon discussion of material issues and rival contentions raised by the parties, it may 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 'private forests' in Goa in pursuance to the directions 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 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.

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 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.'

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%).

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 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.

Admittedly, Dr. Karapurkar Committee was the second Committee, appointed by Govt. of Goa for identification of forest lands in the State. Neither Sawant 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'.

On behalf of the Applicants, learned Counsel invited our attention to recitals of the Panchanama dated 29 th 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.

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.

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.

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.

We have not come across any tangible material to reach such conclusion.

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.

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 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.

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/- (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.