National Green Tribunal
Pundalik Kushali Velip vs Forests And Enovironment Department on 16 January, 2024
Item No.9 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Original Application No.86/2022(WZ)
Pundalik Kushali Velip & Anr.
.....Applicant(s)
Versus
The Deputy Conservator of Forests & Ors.
....Respondent(s)
Date of hearing: 16.01.2024
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Ms. Fawia M. Mesquita, Advocate
Respondent(s) : Ms. Ruchira Gupta, Advocate for R-1 to R-3
Shri J.E. Coelho Pereira, Senior Advocate along-with
Mr. Somnath Karpe, Advocate and Mr. Amardeep Valvaikar,
Advocate for R-4
Mr. Joao Abreu Lobo, Advocate for R-6
ORDER
1. This application has been filed with the prayers that a direction be issued to the respondent No.4/Biotech India Limited not to undertake any activities in the subject properties i.e. Survey No.23(part), which has been got clarified from the learned counsel for applicants during the hearing held on 14.09.2023, where-in, in para no.5 of the order dated 14.09.2023, it was made clear that the relief of applicants is confined only to Survey No.23(P); further, it is prayed that the respondent No.4/Biotech India Limited be directed not to continue with any felling of trees in the subject properties; a direction be issued to the respondent No.1/The Deputy Conservator of Forests and respondent No.2/The Chief Conservator of Forests to initiate prosecution against the respondent No.4 under Section 15 of the Environment (Protection) Act, 1986 for violation of the Forest Conservation Act, the EIA Notification 2006 and the Environment Original Application No.86/2022(WZ) Page 1 of 9 (Protection) Act, 1986; a direction be issued to respondent No.4 to take steps for restitution of the subject properties to their original condition; and a direction be issued to the respondent No.4 to pay compensation commensurate to the damage caused in the subject properties.
2. In the body of this application, it is submitted by the applicants that Village: Adnem - Balli in Quepem Taluka of South Goa is a Tribal Hamlet of the tribal group called the Velips, who are Forest Dwellers. Their social, cultural and religious life are mainly related to forests. The said Village comprises Survey No.23(part) as well. The applicants are tenants of the property in question, which is a natural forest and is classified as eco- sensitive area. The respondent No.4/Biotech India Limited is the last owner of the property in question, who has purchased the same vide Sale Deed dated 14.05.2012.
3. It is further submitted in this application that since about April 2022, the respondent No.4 had been cutting down trees of forestry species, destroying shrubs and other vegetation and is preparing the land in question with the help of heavy machinery like JCBs for developmental activities. The respondent No.4 has mercilessly hacked trees and forestry species and thereby creating 8-meter-wide pathways and has been levelling steep slopes to create pathways, photographs of the same are annexed as Annexure A-5 Colly. The civil work like tarring of the pathways has been started by the respondent No.4, which activities are unregulated and unchecked, causing damage to the environment. The respondent No.4 has not sought permission from the Village Panchayat/respondent No.5 for the said activities nor the respondent No.4 has Forest Clearance, in terms of the Forest (Conservation) Act, 1980. Hence, the above prayers have been made.
Original Application No.86/2022(WZ) Page 2 of 9
4. This matter was first considered by us on 30.09.2022 when a direction was issued to send notices to the respondents.
5. In compliance to the same, a reply affidavit dated 06.01.2023 has been filed from the side of respondent No.1/The Deputy Conservator of Forests and respondent No.2/The Chief Conservator of Forests, where-in it is submitted that Survey Nos.23 & 29 of Village: Adnem are not Government Forest. Survey No.23(P) and Survey No.29(P) of Adnem Village are identified as prospective private forest by South Goa Forest Division Committee. Since April 2022, several complaints had been received in respect of cutting of trees in various Survey Numbers, details of which are given in para no.5 of this affidavit in tabular form, regarding which action was taken at their end promptly. But the said tabular form does not comprise Survey No.23(P). Rest of the contents do not appear to be relevant to be mentioned here by us for deciding the present dispute.
6. From the side of respondent No.3/The Deputy Town Planner, Town & Country Planning Department, Government of Goa, a reply affidavit dated 20.01.2023 has been filed, where-in the same facts have been mentioned, with respect to the property in question i.e. Survey No.23(P), Village: Adnem, which is said to have been identified as prospective private forest by South Goa Forest Division Committee, as had been mentioned by the respondent No.1 also.
7. It is also mentioned in this affidavit by the respondent No.3 that subsequent to the notice of the present Original Application, a site inspection dated 21.12.2022 was carried out on 21.12.2022 and it was observed that in Survey No.23 and Survey no.29 of Village: Adnem of Quepem Taluka, cutting of sloppy land had been carried out, in violation of the provisions of Section 17(A) of the Town and Country Planning Act, as no permission from them was found, pursuant to which a Show Cause Original Application No.86/2022(WZ) Page 3 of 9 Notice dated 22.12.2022 was sent to the respondent No.4 to show the cause as to why direction should not be issued to it to restore the land to its original condition or why an FIR should not be registered for violation of the Section 17(A) of the Town and Country Planning Act. Nothing has been clarified as to what happened thereafter in pursuance to that Show Cause Notice.
8. From the side of respondent No.1/The Deputy Conservator of Forests and respondent No.2/The Chief Conservator of Forests, a supplementary affidavit dated 26.05.2023 has been filed, where-in it is mentioned in para no.10 that a complaint dated 03.02.2023 was received from villagers of Adnem alleging therein illegal road construction and massive destruction of hills in the Survey Numbers in question including the present property in question. In response thereto, a site inspection was carried out from their side and it was observed that there was no illegal tree felling found at the site in question. It appears that the said complaint was dismissed.
9. From the side of respondent No.4/Biotech India Limited, a reply affidavit dated 11.07.2023 has been filed, where-in it is submitted that out of the total area 5,08,675 sq. mtrs. of the subject properties, the property bearing Survey No.23/1, which admeasures an area of 1,15,595 sq. mtrs. or thereabout an area of 1,14,489 sq. mtrs., is said to have been identified as a garden and an area of 375 sq. mtrs. is identified as a "dry crop".
10. When we enquired from the learned Senior Counsel for respondent No.4 as to what has been stated by him with respect to the construction of pathway/road, which is being objected to by the applicants, he submits that no such pathway or road was being built by the answering respondent, rather the same was being done by some other persons namely Mr. Rodney Assumption Conception Salvador D'silva/respondent No.6, Mr. Mansoor Original Application No.86/2022(WZ) Page 4 of 9 Shaikh/respondent No.7 and Mr. Suraj Ballikar/respondent No.8, who were subsequently impleaded as respondents in the present application.
11. From the side of respondent No.6/Mr. Rodney Assumption Conception Salvador D'silva, a reply affidavit dated 11.09.2023 has been filed, where-in it is submitted that he is co-owner with the respondent No.4 of the Survey Number in question along-with other Survey Numbers and that Mr. Mansoor Shaikh/respondent No.7 and Mr. Suraj Ballikar/respondent No.8 are his Power of Attorney Holders. The applicants are wrongly trying to claim tenancy rights in the property of the answering respondent because they have not produced any document regarding the same such as Form I and Form XIV of the said properties, containing their names as tenants. The answering respondent is using the property in question for agricultural purposes and that some miscreants are causing damage to the cashew plants in their property.
12. When we made a pointed query from the learned counsel for respondent No.6 as to whether the road in question, which is being opposed by the applicants, is located in Survey No.23(P), he submits that it is not located in Survey No.23(P), rather the same is located in Survey No.23/1 and is lying outside the forest area.
13. After having heard the learned counsel for parties on several dates and looking to the ambiguity with respect to the road being outside the forest area or inside the same, we had found it necessary to constitute a Committee vide our order dated 14.09.2023 comprising one member each from (i) The Town & Country Planning Department, Government of Goa; (ii) The Deputy Conservator of Forest, Goa; (iii) The District Collector, South Goa; and (iv) The Village Panchayat of Balli-Adnem, Goa, who had submitted its report dated 15.01.2023 stating therein as follows:- Original Application No.86/2022(WZ) Page 5 of 9
"Upon reaching all the above members at the site Chairman of the joint Committee explained all the members and applicant and respondent that while carrying out this inspection, geo tag photos of road will be clicked and geo location reading will be recorded and same will be super imposed on satellite image wherein Survey boundary of entire Sy. No.23 (P) and boundary of provisionally identified perspective Private Forest will be superimposed and depicted on Satellite image, to verify the location of Road.
Accordingly the applicants Pundalik Kushali Velip and Pratima Pundalik Velip asked to show the Road, about which they have grievance, then said applicants started showing the said Road. Accordingly its geo tag photos were clicked and also recorded the geo location reading of Road as under and same are superimposed and depicted on Satellite image (Annexure- II) Sr. Locatio Photograph Geo Location Reading Remark no. n no. no.
1 1 1 N15'10'16.03" Starting point of tar road E74'03'09.71"
2 2 2 N15'10'17.42" Tar road continuation E74'03'06.86"
3 3 3 N15'10'19.24" Tar road continuation(turn) E74'03'02.98"
4 4 4 N15'10'22.04" Tar road continuation E74'03'03.85"
5 5 5 N15'10'25.37" End of tar road E74'03'03.81"
Similarly Range Forest Officer has taken all the team members and applicants and respondent to the boundary line point of provisionally identified perspective Private Forest in Sy. No 23(P) which is towards the upside of the hill , where its geo tag photos were clicked and also recorded the geo location reading as under and same were superimposed and depicted on Satellite image (Annexure -II) Sr. Locatio Photograph Geo Location Reading Remark no. n no. no.
01 06 06 N15'10'25.92" Boundary line
point of
E74'03'01.26" provisionally
identified
perspective
Private Forest in
Upon verifying and locating all the above geo-location of road and Sy. No 23(P).
boundary line point of provisionally identified perspective Private Forest in Sy. No. 23 (P), it is found that the road identified by the applicants, is outside the boundary line of provisionally identified perspective Private Forest in Sy. No. 23 (P).
The attendance of the all the above attendees present for the site inspection were recorded at the site (Annexure-I) and geo tag photos clicked during site inspection and geo location recorded during the inspection are put up in this site inspection report and the same report Original Application No.86/2022(WZ) Page 6 of 9 is shared with all the Joint Committee member constituted as per order No. 10/NGT(5)/LC/DCFS/2023-24/1106 dated: 04/10/2023 from the office of the Deputy Conservator of Forests South Goa Division, Margao and Applicant and Respondents in original application No.86/2022 and their signature is taken on this report."
14. Since the Joint Committee has conclusively given its finding that the road identified by the applicants, who were accompanying them, is found to be outside the boundary line of provisionally identified prospective Private Forest area in Survey No.23(P), we enquired from the learned counsel for applicants, as to why the cost be not imposed upon the applicants because we had constituted a Committee subject to the condition that if the averment of the applicants is found to be false that the said road is lying in Survey No.23(P), which is a forest area, cost would be imposed. The said learned counsel had sought a day's time to provide a copy of the said report to the applicants in this case and file an objection against the said report.
15. We have found that an affidavit dated 16.01.2024 has been submitted from the side of applicants stating therein that the Joint Committee Report was not supplied to the applicants, rather the same was supplied to the respondent No.4. The said report could be supplied to the applicants yesterday only through e-mail and the matter has been posted today for final disposal.
16. It is further mentioned in this affidavit by the applicants that there is no doubt that the road has been constructed in Survey No.23(P). The Joint Committee Report does not deny the fact that the road has been constructed in Survey No.23(P). If the authorities had simply superimposed the road on the maps available, it would show the correct position. The applicants had today rushed to the Surveyor and seen for themselves that part of the road fell in the Forest and other part fell in slopes and natural Original Application No.86/2022(WZ) Page 7 of 9 cover in Survey No.23(P). The superimposed plans however could not be printed and prepared before 10.30 AM this morning.
17. It is further mentioned in this affidavit by the applicants that the Joint Committee Report identified the road constructed with Geo Location Readings. The applicants have not been given reasonable opportunity to examine the Geo Location Readings. Even the photographs show lush Natural Green Cover in the background. Despite the fact that the Officials have visited the site and seen the construction of road after clearing trees and tree cover, there is not a single document to show any permission to have been granted for construction of the road. The Respondent Authorities have merely booked some persons for offences of tree cutting and have not done anything more. Even Tree Cover cannot be mutilated without seeking permission as even cutting of a single tree is a matter of great concern having regard to the ecological services of trees.
18. It is further mentioned in this affidavit by the applicants that a letter dated 05.06.2023 of the Dy. Town Planner makes it evident that the respondents were high handedly cutting slopes and trees and yet no action was being taken. Further, it is mentioned that from the observations made by the Joint Committee in its Report, it is clear that the Geo Tags could not be studied/counter checked, as the applicants could not find any Geo Tagging Expert last evening.
19. From the affidavit, which has been filed from the side of learned counsel for applicants, it appears that she is still insisting upon the fact that the road, which is said to be there, is forming part of the forest area within Survey No.23(P), while the Joint Committee Report has conclusively reached the conclusion that it was found that the road identified by the applicants was outside the boundary line of provisionally identified prospective Private Forest area in Survey No.23(P). With this Joint Original Application No.86/2022(WZ) Page 8 of 9 Committee Report, there is a map annexed, where-in that road has been shown by the Yellow colour in Survey No.23(P), Village: Adnem and demarcation of the boundaries of the provisionally identified prospective Private Forest area in Survey No.23(P) is shown by Red colour, which makes it clear that the forest area is shown by Survey No.23(P), which is marked by Red colour boundary and outside of it, there is a road construction found to be there in Survey No.23. Therefore, it is clear from this report that the Joint Committee has found the said road to be outside the forest area. If the said road is outside the forest area, this Tribunal would not have any jurisdiction and in that case, no violation of any provisions of the Forest (Conservation) Act, 1980 would be found to be there.
20. Since by our previous order dated 14.09.2023, the dispute was confined to the fact, as to whether the respondents had constructed/were constructing road within Survey No.23(P)? The said dispute stands resolved in the light of the report of Joint Committee and we hold that the road is not lying inside the Survey No.23(P), which is a provisionally identified prospective Private Forest area.
21. Since the applicants were to be imposed heavy cost, if the contrary finding was to be given by the Joint Committee after verification, but looking to the fact that applicants are claiming to be tribal group and are poor people, we waive of the cost.
22. In view of above, we dispose of this application accordingly.
23. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM January 16, 2024 Original Application No.86/2022(WZ) P.Kr Original Application No.86/2022(WZ) Page 9 of 9