National Green Tribunal
The Goa Foundation vs Ms Saravati Builders And Construction ... on 11 June, 2025
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)]
ORIGINAL APPLICATION NO.170 OF 2024 (WZ)
1. Goa Foundation, a society registered under
the Societies Registration Act, 1860,
Through its Secretary, Dr. Claude Alvares,
and having its registered office
At Room 7, Above Mapusa Clinic, Mapusa, Goa
2. Edwin Mascarenhas, resident of 58 B,
Near Chicalim Park, Chicalim, Goa. ..Applicants
Versus
1. DLF Homes Goa Pvt. Ltd.,
[Earlier known as M/s Saravati Builders and
Construction Pvt. Ltd.], Reg. off.
At Mezzanine Floor, DLF Gateway Tower,
R Block, DLF City, Phase III,
Gurugram - 122002, Haryana.
2. Anand Builders, 801, 8th Floor,
Anand Square, Block 'B',
Near Sanjeevani Hospital, Baina,
Vasco da Gama.
3. Vithal J Naik, r/o H.No. 393,
Near Sri Vithal Mandir, Comba, Margao, Goa.
4. Chief Town Planner, Town and Country
Planning Department, Dempo Towers
Patto, Panaji, Goa.
5. Town and Country Planning Board
Through its Member Secretary,
Town and Country Planning Dept,
Dempo Towers, Panaji, Goa.
6. Mormugao Planning & Development
Authority, through its Member Secretary,
Commerce Centre, 2nd Floor,
Vasco da Gama, Goa 403802
7. The Tree Officer and DCF (S)
Forest Department,
South Goa Division, Margao, Goa
8. State of Goa through
its Chief Secretary, Government of Goa,
Secretariat, Porvorim, Goa.
through Advocate General, Panaji
Page 1 of 75
9. The Secretary, Ministry of Environment &
Forests, Paryavaran Bhavan, C.G.O.
Complex, Lodi Road, New Delhi 110003.
10.Panchayat of Chicalim through its
Secretary, Chicalim, Goa.
11.Dy. Collector, Mormugao, Goa
12.Kenneth Pereira,
Pereira Chambers, Fr. Jose Vaz Road, Vasco.
13.Sajjad Hussein,
Flat No. T-2, Block-1, Adarsh Nagar,
Airport Rd. Chicalim
14.Mohammed Aarif Bhatti,
Teleyan Mohala, Near Bisav Gate,
Ward No. 9, Ramgarh Sekhawati,
Dist: Sekal, Rajasthan.
15.Rajan Ramani, Flat No. 2, Mahambre Building,
F.L. Gomes Road, Vasco da Gama, Goa.
16.Dinesh D. Lokapure,
30/13 Empress Graden View Society,
Sopan Baug, Pune, Maharashtra.
17.Sandeep Janardhan Halarnekar,
House No 141-F, Green Valley,
Chicalim, Goa.
18.Naresh G. Naik,
145-N, Shiv Shakti, Alto Dabolim, Goa.
19.Anuprita Prabhu, 402, Deepika CHS Pakhadi,
Kharegaon, Kalwa Thane ( West).
20.Suraj N. Waghmode, H. No. 220,
Near MPT Ground,
Patrong, Baina,
Vasco da Gama, Goa.
21.Santhos Kumar S.,
H. No. 69, Near Pai Hospital,
Vaddem, Vasco, Goa.
22.Saby Fernandes, Dr. Mapxencar BIdg., 3rd Floor,
Above Sanjeevani Hospital, Baina,
Vasco, Goa.
23.Santosh V. Shetye,
Sapna Vihar, Near Vaddem Lake,
Vaddem, Vasco, Goa.
Page 2 of 75
24.Anantha Sarathy,
Lily, Near SMRC, Airport Road,
Chicalim.
25.Desville B. Miranda,
Vasco Towers. 6th Floor, Flat No. 25,
Vasco, Goa.
26.Babasaheb R. Desai
Tambamala Ichalkamji,
Kolhapur, Maharashtra.
27.Mency Lorina Britto,
H.No. 56, Headland Sada, Mormugao,
28.Sumedha Gunjal,
H. No. 25, Alto Chicalim,
Opp. Cottage Hospital, Chicalim
29.Gopal Krishna Vasant Shetye,
H. No. 201, Vaddem,
Vasco da Gama, Goa
30.Unnati Singh Mahar,
H. No. 37, Nofra, Colaba,
Mumbai 400 005
31.Dr. Shridhar & Dr. Usha S. Pai,
Pai Hospital, Vaddem,
Vasco da Gama, Goa.
32.Sheik Rahid,
H. No. 105/C-1, Opp. Neelgagan Apts.,
Behind RTO Office, Arlem, Raja,
Salcete, Goa.
33. Sunil Kumar Kalyanshetty,
B/V/F-4, Sainarayan Apt.,
Near EI- Monte Theatre, Rumdawada,
Vasco, Goa
34.Kishan Kumar Yadav,
H. No. 447, Shanti Nagar,
Nr Dipti Garage, Airport Rd, Vasco.
35.Ashok Dhar,
Maria Apt., 2nd Floor, A-s1,
Merces Vaddo, Vaddem, Vasco.
36.Christopher Mascarenhas,
H. No. 15/C, Near PWD Water Tank,
Alto Chicalim
37.Dalit Singh,
Antrix Manor, Opp. Naval Stores Depot,
A.G.2, Dabolim
Page 3 of 75
38.Deepa & Ramakrishna S. Gaonkar,
S-4, 2nd Floor, Block-B, Antrix Manor,
Alto Dabolim, Vasco
39.Ravi Nilaya Majalikar,
B 3/2, GSL Officers Enclave,
Airport Road, Chicalim
40.Simon G. Pereira,
S-2, 2nd Floor, Teli Bldg., Baina,
Vasco da Gama, Goa
41.Raghunath Gopal Naik,
H. No. G-106, Ground Floor,
Mahima Vastu, Dabolim, Goa.
42.Nitish Ramchandra Kadam,
H. No. 41/4, Anand Estate,
Behind Naval Stores Depot,
Alto Dabolim, Goa - 403 801
43.Eknath S. Parab,
Flat No. 01, Nelnish Apts.,
Mangor Hill, Vasco
44.Rajesh Shirodkar,
H. NO. 416, Near Daji Bus Stop,
New Vaddem, Vasco
45.Vithal Ravappa Chawan, Mahima Vastu,
Flat No. 102, Near Naval Stores Depot,
Dabolim, Goa
46.Joaquim Antao,
F.X. Towers, Flat No. 501, 5th Floor,
Opp. MPT Institute, Swatantra Path,
Vasco, Goa
47.Mohan P. Sawant
Mormugao ....Respondents
APPEARANCE :
Applicants : Ms. Norma Alvares, Senior Advocate, i/b and with
Mr. Om D'Costa, Advocate
Respondents : Mr. Pinaki Misra, Senior Advocate i/b and along with
Mr. Pravin Bahadur, Mr. Ritu Raj, Mr. Aditya P.N. Singh,
Ms. Seems Sundd, Mr. Abhishek S. and Mr. Aniruddha
Kulkarni, Advocates for R-1/M/s DLF Homes Goa Pvt. Ltd.
Mr. Shubham Priolkar, Advocate for R-8
Mr. Amey Ranade, Mr. Pratik Rajopadhye and Ms. Maithili
Rane, Advocate for R-21, R-35, R-39, R-40 and R-43
Page 4 of 75
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
=================================================================
Reserved on : 11.02.2025
Pronounced on : 11.06.2024
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JUDGMENT
1. Goa Foundation, a society registered under the Societies Registration Act, 1860 along with one Edwin Mascarenhas, who are applicant Nos.1 and 2, respectively in the present Original Application, had initially filed Writ Petition No.13 of 2010, which has been transferred from the Hon'ble High Court of Bombay at Goa to this Tribunal vide order dated 17.10.2013 and was numbered as Original Application No.26 of 2013 (THC), which is later on re-numbered as Original Application No.170 of 2024.
2. This application has been filed with prayers that approvals, permissions and sanctions, including deemed approvals granted by the authorities for the project of respondent No.1 - M/s Saravati Builders and Construction Pvt. Ltd. (now known as DLF Homes Goa Pvt. Ltd.) on Survey No.43/1-A and for any development on Survey No.43/1 (excluding mundcarial settlement) of respondent NO.2 and respondent Nos.12 to 47, be set aside; an order be passed directing the Forest Department to restore forest cover on Survey No.43/1-A at the cost of respondent No.1 and on Survey No.43/1 at the cost of respondent No.2; Government orders dated 20.02.2006 and 07.03.2007 issued under the Land Revenue Code, 1968 be quashed; ODP of the Mormugao Planning and Development Authority (respondent No.6) in respect of Chicalim village be set aside and a direction may be issued to the Ministry of Environment and Forests (respondent No.9) to set up State Environment Impact Assessment Authority (SEIAA) and a State Expert Appraisal Committee (SEAC) for the State of Goa. Page 5 of 75
3. The facts of this case, in brief, are that the project in question is located in No Development Zone (NDZ), which is a thick forest. The land, over which the project is to be developed, is owned by respondent No.2 - Anand Builders on Survey No.43/1 and the land is a forest land and is contiguous part of the forest standing on Survey No.43/1-A.
4. It is mentioned in the application that State of Goa has undergone recently a major social convulsion when large scale objections and protests were voiced against the notified Regional Plan for Goa 2011, which had fallen into the hands of developers and speculators during its preparation. Vast tracts of hilly lands, forest areas and paddy fields were laid open for speculative development. Due to the continuous and determined protests, Government finally scrapped the plan and set up a Task Force on the Regional Plan 2021, headed by the Chief Minister with noted architect and city planner Charles Correa as Vice-Chairman. Public hearings were held and draft plan after preparation was despatched to the villages of Goa for public consultation. The Draft Regional Plan (DRP) 2021 was thereafter notified in the official gazette on 16.10.2008.
5. It is further mentioned that in case of Chicalim village, in which the impugned project is located, the DRP 2021 was received by the Panchayat in November 2008 and a village level committee was set up for bringing the people's inputs into land use planning. Copy of the said DRP 2021 is annexed as Annexure-1. It would reveal from its perusal that several areas (including plot on which the impugned project is proposed) had been demarcated as No Development Zones (green zigzag lines) due to their being steep slopes. The identification of the NDZ is based on existing contour maps of the Government of India made available to the Task Force. This identification is as per the policy of the Goa Government, which itself was the result of Writ Petition No.257 of 2001 filed by applicant No.1 regarding Page 6 of 75 protection of slopes from construction. Copy of the judgment passed in the said Writ Petition dated 13.10.2008 is annexed as Annexure-2.
6. It is mentioned that the Outline Development Plan (for short, "ODP"), prepared by the Mormugao Planning and Development Authority (MPDA) - respondent No.6, however, would show parts of the same area as settlement zone (S1 and S2) and part as recreation zone. Copy of the ODP area map with Survey No.43/1 (before partition) highlighted in a box is annexed as Annexure-3. This ODP also has Government approval and was finally notified in 2009 despite objections from Dabolim, Sancoale and Chicalim villagers. With regard to the impugned plot, the ODP is obviously in conflict with the DRP 2021. The notified ODP also does not respect the orders of the Hon'ble High Court on hill slopes and forest referred to above. Based on the ODP, planning and development permission (deemed) from the MPDA - respondent NO.6 has been procured by respondent No.1 and the village panchayat (respondent No.10) has also concurred by granting construction license. The proposed destruction of steep, forested hill slopes - contrary to law and in violation of the orders of the Hon'ble Court - is imminent. Hence this application has been moved.
7. Apart from above, the applicants are also approaching this Tribunal for protection of the forest area on the impugned plot because in the opinion of the applicants, the entire plot has thick forest. The forest is still standing in most of the plot except in the area where respondent No. 1 was given permission to fell some trees and has instead clear-felled the area. Applicant No.1 has got it confirmed from the department of Science, Technology and Environment that the area in question and its surroundings are having dense vegetative cover. Applicant No.1 has approached the Hon'ble High Court on several occasions for protection of forest areas in the State and the Hon'ble High Court has issued appropriate orders from time to time. Further it is mentioned that the identification of private forests pursuant to Page 7 of 75 Hon'ble Supreme Court's order dated 12.12.1996 in Godavaraman's case has not been completed and in the interregnum , forests were being destroyed, the Hon'ble High Court was pleased to direct in Writ Petition No.334 of 2006 that any plot with tree cover being proposed for development must procure prior NOC from the Forest Department. Order dated 21.11.2006 passed in Writ Petition No.334 of 2006 is annexed as Annexure-
7. In the case in hand, no prior NOC has been obtained by respondent No.1 from Forest Department even though the area is dense with tree cover.
8. It is in this backdrop that the present Original Application is filed challenging the massive group housing project of respondent No.1 being constructed on Survey No.43/1-A of Dabolim village, which falls under jurisdiction of Chicalim Panchayat, involving construction of 600 luxury flats and amenities including guest houses and club house on a plot of land that admeasures 77,294 sq.mtrs. The location of the project is a forested slope that has already been notified in the Draft Regional Plan for Goa as a No Development Zone due to its steep contours. Despite this, Respondent No.1, under influence of its clout, has obtained approvals with unholy speed granted to it by various authorities. Hence, the applicants are challenging any development activity carried our or proposed on approx.. 17,070 sq.mtrs of land on Survey No.43/1, which is owned by respondent No.2 on similar grounds.
9. The permissions obtained by the applicants under R.T.I., which are challenged, are as follows :
"(A) Order dated 30.1.2017 granting exemption from obtaining conversion sanad under the provisions of the Goa Land Revenue Code (B) Two permissions dated 12.9.2008 and 28.5.2009 to fell a total of 92 trees issued by the Tree Officer under the provisions of the Goa Preservation of Trees Act, 1984.Page 8 of 75
(C) Environment clearance dated 2.2.2009 under the EIA notification issued under the Environment Protection Act, 1986 (D) "Deemed approvals" from the MPDA and from the Town and Country Planning Board. (There are no formal NOCs or orders issued by the MPDA approving the sub-division of the plots or the development on Sy.No.43/1-A).
(E) "Consent to Establish" dated 10.7.2009 from the Pollution Control Board.
(F) Five construction licenses dated 17.7.2009 issued by the Panchayat of Chacalim for five plots admeasuring 77,294 sq.mtrs. (G) Permission dated 2.9.2009 from the Chief Town Planner under Sec. 17A of the Town and Country Planning Act, 1974 for hill cutting along the slopes."
10. Further it is mentioned that the enfire plot Survey No.43/1, admeasuring 1,02,775 sq.mtrs was previously in the name of Vithal and Indira Naik (respondent No.3). They signed a Power of Attorney in favour of one Anand Bose, sole proprietor of respondent No.2, enabling him to do all acts for sale and development of the plot, including securing development permissions. Since there were mundkar houses on the survey, application for partition of mundcarial settlement was made in 2006 and a final sub- division order dated 22.12.2006 was issued by the authorities separating the mundcarial plot of 8,405 sq.mtrs from the rest of the plot area. Thus, by 22.12.2006, the mundcarial houses, already deemed to be in the ownership of the land under the Mundkar Act, were effectively partitioned from the rest of Survey No.43/1 which now admeasured 94,370 sq.mtrs.
11. It is mentioned that by order dated 20.02.2006, issued under Section 35 of the Goa Land Revenue Code, 1968, the Goa Government allowed certain classes of lands for exemption from several provisions of the Code, including Section 32, which requires conversion sanad. Section 35, however, requires the action to run the gauntlet of public interest. As per circular dated 09.10.2006 issued by the Department of Revenue, any person Page 9 of 75 desirous of availing the benefit of the order dated 20.02.2006 had to submit Survey Plan in original issued by the Directorate of Settlement and Land Records along with a certificate that the said survey plan is the first plan prepared in 1970s. The applicants also had to submit an NOC from Town Planning that the land for which exemption was applied for falls within the Settlement Zone as per the Regional Plan/ODP. The Deputy Collector is required to conduct an inquiry and satisfy himself on the correctness of the application. Copies of the Government order dated 20.02.2006 and circular dated 09.10.2006 are annexed as Annexure-8 colly.
12. It is stated that on 29.01.2007, relying on the purported existence of the mundecarial houses, which had already been separated from the rest of the plot proposed for development, respondent No.3 made an application before the Deputy Collector, Mormugao for exemption of the entire Survey No.43/1 from the operation of Section 32 of the Land Revenue Code, 1968 on account of order dated 20.02.2006 issued by the Government. The said application did not disclose that the plot had already been partitioned and that therefore, the houses purportedly existing on the plot were no longer part of the property represented by respondent No.3. Copy of the application dated 29.01.2007 is annexed as Annexure-9.
13. It is further mentioned by the applicants that the documents from the DSLR annexed to the application were not as per the requirement. No survey plan in original was annexed. Further, NOC from Town Planning was not produced. Instead, a letter with plan issued by MPDA was submitted which stated that the entire plot is settlement zone (S1 and S2). This information was in fact false as the ODP shows a green belt in the area which is zoned as R (recreational) while the areas above and below it are zoned as S1 and S2. The zoning R for part of Survey No.43/1-A is also irregular and colourable exercise of power as the rest of the belt going around the villages of Chicalim and Sancoale is shown uniformly as A2 or Page 10 of 75 Natural Cover. This would suggest that an attempt was made to help respondent No.1 by the MPDA - respondent No.6.
14. It is stated that on 30.01.2007 (the following day), without holding any enquiry and witout obtaining NOC from the Forest Department, order of exemption was passed by the Deputy Collector in favour of the applicants. Copy of the exemption order is annexed as Annexure-10. Thus, it is clear that a Rs.130 crore project with flats that would be sold each at more than a crore to speculators from all over the country as a second luxury home in Goa was exempted purportedly in the public interest from having to obtain conversion sanad. By the said order, approximately Rs..25 lakhs was lost to the public exchequer as conversion charges.
15. Further it is mentioned that the Deputy Collector was duty bund to investigate as to what was the land use of Survey number prior to its zoning as Settlement/Recreational in the ODP 2011. But he has failed to do so. The earlier ODP had zoned part of the area in fact as A2 and balance as S5 and S6. The Regional Plan 2001 had zoned it largely as orchard. Land use taluka map of Survey No.43/1in the Regional Plan 2001 (still in force) is annexed as Annexure-11.
16. It is stated that the circular dated 20.02.2006 would show that the same is in violation of the Forest Conservation Act, 1980. It is also contrary to the Ho'ble High Court's order dated 17.06.2003 in Writ Petition No.344 of 2002 wherein the Court had recorded the undertaking of the Advocate General that Clause (v) of circular dated 23.05.1997, then in force - which permitted conversion sanad to be issued without reference to Forest Department - would be deleted. At that time, the Ministry of Environment too had filed an affidavit stating that the said clause was in violation of the Forest Conservation Act. A copy of the circular dated 23.06.1997 is annexed as Annexure-12 and a copy of the order dated 17.06.2003 passed in Writ Petition No.344/2002 is annexed as Annexure-13. It is submitted that the Page 11 of 75 intent of the order dated 17.06.2023 was to bring any lands being exempted from securing NOC from Forest Department under the Forest Conservation Act, 1980 prior to commencement of development.
17. It is submitted that subsequently on 07.03.2007, the Government itself issued fresh order superseding the order dated 20.02.2006 and now imposed limits (1000 sq.mtrs.) on the size of the plot that could be entertained for such exemptions. The superseding order also stipulated that the existing structures must cover at least 25% of the area of the plot. However, Government does not appear to have recalled the exemptions granted under the impugned order dated 20.02.2006, especially where the area of the plot exceeded the limits set by the subsequent order though it was the abuse of the earlier order that necessitated its being superseded. A copy of the order dated 07.03.2007, which is under challenge, is annexed as Annexure-14. Therefore, the challenge is made to the order dated 30.01.2007 being violative of the Forest Conservation Act, 1980 as well as being violative of the order dated 21.11.2006 passed in Writ Petition No.334 of 2006. The applicants are also challenging the vires of the order dated 20.02.2006 on the ground that exemptions under the Code can only be issued for `class of lands', which are defined in the Code as `dry crop, rice garden land or non-arable land', all of which are agricultural categories. Unless the class of land is classified in the order, no exemption could be allowed.
18. It is further mentioned that the actions taken under order dated 20.02.2006 have led to the violations of the provisions of the Forest Conservation Act, 1980 and orders of the Hon'ble Supreme Court, as is noticeable in the present instance of Survey No.43/1. The actions taken under the order are not in public interest as they have ended up causing huge losses to the exchequer and favoured influential and rich beneficiaries who are not entitled to such exemptions.
Page 12 of 75
19. Further it is mentioned that in the application filed by respondent No.1 to further subdivide the land purchased by them (77,294 sq.mtrs.) from the rest of the plot, necessary orders were issued by the Deputy Collector and a new Survey No.43/1-A was issued to the newly created plot of 77,294 sq.mtrs. Thereafter, all applications (including applications to fell trees) have been made by respondent NO.1 in connection with new Survey No.43/1-A. All development permissions are granted by the authorities in respect of Survey No.43/1-A for which there is no conversion sanad. Therefore, it is submitted that exemption order dated 30.01.2007, even if be treated to be a valid one, it would operate only in relation to Survey No.43/1 and not to Survey No.43/1-A. Therefore, any development on Survey No.43/1-A needs to be stayed, the same being illegal.
20. It is further stated that Survey No.43/1-A and Survey No.43/1 are thickly forested and part and parcel of a 4 kms contiguous stretch of natural forest on steep slopes which stretches from one end of the village of Chicalim to the other end of adjacent Sancoale village. The fact that this area is a forest in nature, is already established by an interim order of the Hon'ble High Court, already staying all development on another plot in the same belt continuing into Sancoale village (Writ Petition No.434/2006). Despite the order of the Hon'ble Apex Court dated 12.12.1996 passed in Godavarman's case, large area of the State on revenue lands and private properties continue to remain unidentified forests. Survey No.43/1-A and 43/1 being the rich forest areas, are yet to be identified. Despite this reality, two applications for felling of trees on the property were entertained and permits for felling issued under the Trees Act, 1984 by the Tree Officer, who also holds office as DCF (S). The RFO, in his report, has stated that the Forest Conservation Act does not apply, which is incorrect. The plot meets all the criteria of private forest including canopy, forest species and minimum area of 5 hectares. The RFO's report also stated that the slope of 30 degrees is Page 13 of 75 categorized as `very steep slope'. But despite this information at hand, the DCF (S) granted two tree felling permissions for two hectares. The DCF (S) was also aware that permission for tree felling was sought on account of proposed development of the plot, yet he attempted to soft pedal his permission for felling trees in a forest area by stipulating that respondent No.1 will reforest the plot with forestry species. In the first permission, he has stipulated that the party will plant 235 forestry species. In the second permission, he has stipulated 225 forestry species. In this regard, the applicants have stated that if the area was not forest in nature, there was no need to impose condition to replant forestry species. For this purpose, the Forest Department has also secured two bonds from respondent No.1.
21. The tree felling permission was granted for 47 trees on the first one hectare plot and 45 trees on the second one hectare plot though the exact area of these two plots, where tree felling was permitted, was not demarcated as required under the Trees Act. Copies of relevant orders with regard to tree felling are annexed as Annexure-16, colly. Further it is mentioned that first permission granted was for 47 trees on one hectare of plot having 136 trees and all the trees had been felled while under the second permission, felling of 45 trees on one hectare of plot having 231 trees and all these trees had been felled. So, respondent No.1 has cut trees beyond the stipulated two hectares permitted, as the logs assembled on various parts of the plot area show. However, the Forest Department has registered an offence in respect of excess felling of six trees only. Further it is mentioned that the Tree Officer could not have issued such permission when he knew that the purpose was for construction and therefore, prior NOC was required from the Forest Department. Respondent No.1 had not sought any permission for conversion sanad for Survey No.43/1-A. The Tree Officer was restrained by the provisions of the Trees Act from granting permission for felling on slopes of 30 degrees and in excess of two hectares. The two hectares area was not Page 14 of 75 demarcated on the ground. According to the applicants, therefore, for the above reasons, two permissions need to be quashed and the area needs to be restored.
22. With respect to the grant of Environmental Clearance (EC) dated 02.02.2009, it is submitted that neither EAC nor MoEF could grant approval for the project on steep slope without ascertaining as to whether there is forest on the land. The Ministry, in the year 2000, set up a Committee for identifying parameters for designating Ecologically Sensitive Areas in India. Two of the twelve criteria laid down by the Committee for declaring an area as ecologically sensitive were "steep slopes" and "not so steep slopes". In such areas, the Committee recommended no environment clearance could be granted and the recommendation was accepted by the Ministry and thereafter, the same was circulated. In the light of above, it is obvious that the EC was granted in the case in hand without application of mind and without proper facts being placed before EAC and the Environment Ministry and hence, the EC is liable to be quashed. The EAC would obviously have taken a different view had it been informed that the project plot was not only affected by steep slopes but also these slopes were thickly forested.
23. It is further mentioned that the Ministry has not set up State Environment Impact Assessment Authority (SEIAA) AND State Expert Appraisal Committee (SEAC)for State of Goa, which is statutory requirement under the EIA Notification, 2006. Hence, the EAC will continue to commit blunder in issuance of Environmental Clearance as no local persons or public hearings are involved. The Ministry continues on its path of encouraging and endorsing the destruction of the country's natural environment and forests.
24. It is further mentioned that the Goa State Pollution Control Board has issued consent order on 10.07.2009, which is annexed as Annexure-21 and in the inspection report, it is recorded that the site is hilly sloping area, but Page 15 of 75 its office grants consent automatically once the applicant has environment clearance. In this regard, it is submitted that the Board is duty bound to arrive at a proper, independent decision to ensure compliance with the orders of the Hon'ble High Court and to ensure that, its consent for the construction proposed is in conformity with development principles in force and that no forest cover is involved.
25. With respect to the deemed approvals and construction licenses issued by the Panchayat of Chicalim, it is submitted that there are two sets of approvals/licenses granted by the statutory bodies (MPDA and Panchayat) for construction of buildings on the impugned plot and both are challenged in this application. The first set of approvals was granted for five subdivided plots on a total plot area of 94,370 sq.mtrs. These were procured by Vithal and Indira Naik, the original plot owners i.e. respondent No.3. MPDA and Panchayat of Chicalim granted provisional NOC for subdivision into 4 plots on 23.01.2007 and 30.01.2007, respectively and for plot No.5 subsequently. MPDA and Panchayat of Chicalim granted final NOC for the subdivision into 4 plots on 09.02.2007 and 12.03.2007, respectively. MPDA granted development permission under Section 44 of the TCP Act on 25.09.2007 for 4 plots. Panchayat of Chicalim issued four construction licenses for 4 plots on 03.10.2007.
26. It is stated that on 15.10.2007, respondent No.2 - Anand Builders, a sole proprietary firm represented by its sole proprietor Anand Bose, purchased for Rs.7.7 crores the property of 1,02,775 sq.mtrs for which Anand Bose was holding PoA from respondent No.3 Vithal and Indira Naik. On 26.11.2007, Anand Builders - respondent No.2 sold 77,294 sq.mtrs of the plot to Saravati Builders i.e. respondent No.1 for Rs.29 crores. With respect to second set of development/construction permissions, it is submitted that on 22.08.2008, respondent No.1 made an application for amalgamation of the already subdivided plots (now reduced to only 77,294 Page 16 of 75 sq.mtrs). On the same day, it filed an application for fresh sub-division of the newly amalgamated plot into five new plots with wholly different dimensions. The new sub-division was immediately granted provisional NOC by the MPDA on the same day i.e. 22.08.2008 and by the Panchayat a week later i.e. on 30.08.2008.
27. It is further submitted that on 01.09.2008, respondent No.1 applied to the Panchayat for final NOC for sub-division of the five plots and also submitted revised drawings to the Panchayat on the same day i.e. 01.09.2008 for construction licenses for new plots 1 to 4 and for separate plot called `amenities', under Section 44 of the Town and Country Planning Act, 1974. These were forwarded to the MPDA by the Panchayat on 15.09.2008.
28. The MPDA discussed the proposal in its 62nd meeting held on 20.11.2008 and decided to defer the matter for site inspection by the Chairperson. But that decision was not conveyed to respondent No.1. Three months later on 13.01.2009, respondent No.1 filed a statutory appeal before the Town and Country Planning Board. The Board met on 11.02.2009 to dispose of the appeal. But due to ill-health of the Member Secretary of the MPDA, the matter was adjourned to be taken up in the meeting which took place on 17.07.2009. Copy of the letter of the Member Secretary of the Board and minutes of the Board (which show the Board querying the MPDA about the deemed approval when it itself enabled deemed approval) are annexed as Annexure-24. Hence, conduct of both these bodies needs to be probed.
29. It is stated that on 24.04.2009, respondent No.1 wrote to the Panchayat, claiming deemed approvals for its plans on the ground that the Town and Country Board had not heard and disposed of its appeal in three months. Similar letter was sent by respondent to MPDA on 01.05.2009, claiming deemed approval of its project from 20.04.2009. It is further Page 17 of 75 submitted that on 27.05.2009, respondent No.1 wrote to the Panchayat, demanding construction licenses for Survey No.43/1-A. ON 18.06.2009, the Panchayat responded, informing respondent No.1 that the Panchayat had deferred its decision for legal opinion and report from the BDO and that the issue would be placed before the Gram Sabha in view of Gram Sabha's resolution opposing multistory, high-rise buildings. However, reversing its stand on placing the matter before the Gram Sabha, the Panchayat decided to grant construction licenses on 17.07.2009. The Panchayat also issued NOC for final sub-division. There are two different NOCs for sub-division issued on different dates, signed by the same Panchayat functionary. Under RTI, applications filed with two different authorities, applicant No.2 was issued copy of final NOC from the Village Panchayat dated 10.09.2009 and almost identical final NOC issued by the same Panchayat dated 21.09.2009, both of which have been issued referring to the same Panchayat resolution dated 09.07.2009. Copies of two NOCs for final sub-division are annexed as Annexure-25. Only one out of these two NOCs would be valid. In fact, the NOC dated 21.09.2009 is actually issued by the Panchayat after the construction licenses are issued on 17.07.2009.
30. It is further submitted that the provisional and final orders for sub- division show total non-application of mind as it is not possible for a sub- division of 92,000 sq.mtrs earlier finally approved by both the MPDA and the Panchayat, presumably after mandatory inspection of physical sub-division on the ground and now reduced to 77,300 sq.mtr, to be amalgamated and re-plotted into five new plots with wholly different dimensions. Further, sub- division of the plot into sub-plots is physically impossible at site due to the presence of dense forest and steep slopes. The fact that provisional NOC was issued by the MPDA on the same day of receiving the application i.e. 22.08.2008 and final NOC issued by the Panchayat on the basis of deemed approval from MPDA speaks volumes for whether there was in fact any Page 18 of 75 physical verification of the sub-division which is mandatory by law. No final order of sub-division can be issued without physical verification on the ground of plot demarcation, internal and public roads, gutters, culverts, pipelines, electricity poles, transformers, etc., shown on the approved plans as well as access to open spaces and other amenities in conformity with the requirement of Town and Country Planning regulations. Hence, the NOCs issued by the Panchayat for final sub-division are liable to be quashed.
31. Further it is mentioned that the Panchayat issued so called revised construction license on 17.07.2009 for five plots (residential buildings on four plots and a fifth plot for amenities), based on deemed approval from MPDA under Section 44 of the Town and Country Planning Act, deemed approval from the Town and Country Planning Board under Section 45 of the same Act and based on the legal opinion of an Advocate, all of which is faithfully recorded in the body of the next of the construction licenses issued to respondent No.1, copies of which are annexed as Annexure-26 colly.
32. It is further submitted that the applicants are assailing both the first and second set of deemed approvals and construction licenses on the grounds that deeming permission cannot apply in those cases where development is strictly prohibited. If no development permission can be granted, no deeming permission is available as well. The omission of both the MPDA and the Town and Country Planning Board are mala fide actions. Both these bodies ought to have credible reasons why they did not take decisions within the stipulated time and allowed respondent No.1 to claim deemed approvals. After request application under RTI was filed, the MPDA admitted that it had no information available regarding whether respondent No.1 had paid the development charges for its deemed approvals.
33. With respect to hill-cutting permit granted by the Chief Town Planner to respondent No.1, it is submitted that the same was granted on 02.09.2009, copy of which is annexed as Annexure-28. The said permission Page 19 of 75 was issued on the basis of incorrect contour plan submitted by respondent No.1 and not by actual measurement of the slope with benchmark. This permission is highly irregular, as the area had already been identified as no development zone in the Draft Regional Plan. After the protest by the applicants, the Chief Town Planner ordered a halt to any further digging or excavation on the plot till a survey initiated by the Department is available. The order dated 10.12.2009 setting up the survey committee is annexed as Annexure-29, which was commenced by the designated surveyors on 10.12.2009. It was obvious that physical survey of the plot would be difficult because of the presence of thick forest at the site and the slope analysis at one end of the plot which could be accessed with difficulty indicated a slope of 34%. There is a conflict between the ODP of the MPDA - respondent No.5 and the development plan which the Village Panchayat is duty bound to prepare under the provisions of the 73rd Constitution Amendment read with the Town and Country Planning Act, 1974. As a result of the single new proposed development of respondent No.1, approximately 3000 additional persons would be added to the village whose population is merely 12,000. There would be an excessive increase of 3000 persons without increase in infrastructure facilities, such as sewage, garbage, withdrawal of ground water, etc. All forested areas are shown in ODP as "nature reserves" or as "parks". The applicants are entitled to an ad-interim injunction restraining respondent Nos.1 and 2 from proceeding with any further work on the impugned property i.e. Survey Nos.43/1 and 43/1-A in Dabolim village, Chicalim Village Panchayat. At present a sample building is being erected after destruction of trees on the top of the plot. The picture of the building under construction is annexed as Annexure-4 colly. Respondent No.1 has sought revised environment clearance as it has decided to raise number of flats from 580 to 700. Respondent No.9 - MoEF granted EC to the project by order dated 11.01.2010, copy of which is annexed as Annexure-31. Page 20 of 75 Subsequently, on 15.04.2010, copy of which is annexed as Annexure-32, respondent No. 9 - MoEF issued a letter to respondent No.1, directing the Company not to proceed for construction of its project on Survey No.43/1 as the EC dated 11.01.2010 had been held in abeyance, as the Ministry had decided to re-examine the project, the issues raised by the applicants in Writ Petition No.13/2010 were important and required detailed examination. The Ministry detailed three issues for re-consideration:
"a) Whether the entire project area is a private forest land.
b) Whether the cutting of hill slopes on such a gradient more than 25% is not permissible as per Town and Country Planning Rules.
c) Whether for the implementation of the projects requires cutting of large no. of trees on a steeply sloping terrain is ecologically sensitive area as per the Committee on identifying parameters for designing ecological sensitive in India."
34. The project proposal was thereafter placed before the Expert Appraisal Committee (EAC), which conducted its first hearing on 21st-23rd July, 2010 before which applicant No.1 and respondent No.1 both gave their brief submissions. Submission from the side of applicant No.1 included a report of the vegetation on Survey No.43/1 prepared by a professional botanist, copies of which are annexed as Annexure-33 colly. The EAC expressed its desire to have following information in order to re-consider the proposal:
"a) Details of trees cut down with their permissions certifying that no other trees will be cut and a certificate from the DFO that the area is not declared as forest under the Forest Conservation Act.
b) A copy of the contour map superimposing the layout plan of the site with clear spot levels authenticated by the local Town Planning Department."
35. The applicants downloaded the minutes of the meeting from the Ministry's website and on 13.08.2010 requested the Chief Town Planner (CTP) to allow it to remain present with its own qualified surveyor when the authentification of the spot levels by Town Planning takes place. The CTP, on Page 21 of 75 enquiry made by the applicants, informed the applicants that their Department had not received any contour map with spot levels for authentication from respondent No.1 till date. The EAC was informed by the applicants that none of the instructions for either survey of forest or degree of slope had been followed and that the applicants would attend the meeting once both reports were produced. By letter dated 27.08.2010, the Ministry - respondent No.9 communicated to the CTP the requirement of the EAC cited above. Thereafter, some communication was addressed by the CTP to the Ministry on 09.09.2010, whereby, it appears that the information was rejected by the Ministry on the ground that CTP had been requested to examine the site and confirm the slopes and permissibility of construction, whereas the CTP had sent the MoEF attested copies of the original plans. Thereafter on 08.10.2010, the Ministry once again requested the CTP, Goa to examine and verify at site and confirm the slope and permissibility of construction, but the same appears to have been refused and instead, CTP replied that the plan had been approved only after due diligence and in accordance with guidelines and procedures. Thus, it is clear that no site visit was made by the CTP as directed by the EAC.
36. Further it is mentioned that in the meeting held on 09/10.11.2010, the EAC had not received proper responses to the queries and hence, it recommended to the Ministry that again this matter should be taken only after decision of the Hon'ble High Court. Copy of the minutes of the said meeting is annexed as Annexure-40.
37. It is further mentioned that the Ministry - respondent No.9 thereafter filed an affidavit dated 24.01.2011, informing the Hon'ble High Court that the recommendation of the EAC has been accepted by the Ministry and it is stated that the Ministry will decide on revocation of the abeyance order after decision of the Hon'ble High Court in the matter of the writ petition. Therefore, the environment clearance is in abeyance as no decision has been Page 22 of 75 taken by the Ministry on all the three important issues raised in the application, which the Ministry had earlier unequivocally stated required detailed examination.
38. Based on the above pleadings, the prayers cited above have been made by the applicants.
39. Respondent No.1 - Project Proponent has submitted its affidavit-in- reply dated 30.01.2010, stating therein that the application is barred by delay and laches as the permissions, which have been challenged, go way back to the year 2007-2008 considering the expenditure that has been incurred by respondent No.1 in the meantime and third party rights have also been created.
40. Further it is submitted that the answering respondent, vide registered sale-deed dated 26.11.2007, purchased the land in question from respondent No.2, admeasuring 77300 sq.mtrs, which earlier formed a part of the larger property under Survey No.43/1 of Dabolim, Mormugao Taluka. Towards that purchase, respondent No.1 expended an amount of Rs.31.81 crores. Prior to making this purchase, the answering respondent had taken following measures:
(a) Public notices dated 20/10/2007 and 22/10/2007 on behalf of respondent No.1 came to be published in English Dailies, The Navhind Times and Herald, respectively.
(b) Title to the said property, which came to be certified as legal and marketable by Advocate Dajvip Patkar vide Title Report dated 05 November 2007.
(c) The existence of Licences to construct, issued by Village Panchayat Chicalim for Plots No.1, 2, 3 and 4 in the site admeasuring 77,300 m2 in Survey No.43/1.
(d) The existence of letter dated 30.01.2007 issued by Dy.
Collector/SDO stating that the site in Survey No.43/1 was Page 23 of 75 exempted from the operation of provision of Section 32 of LRC, 1968 (need of Conversion Sanad) and reference in the letter stated that MPDA had informed vide letter dated 30.11.2006 that the property surveyed under Survey NO.43/1 was falling under the Settlement Zone as per ODP 2011.
(e) An inquiry was made with the office of Conservator of Forests, who, vide response dated 23.02.2007, informed that the property surveyed under Survey No.43/1, Dabolim village, is not identified as private forest. Copy of the said communication dated 23.02.2007 is annexed as Annexure-B.
(f) The fact that the property was located in settlement Zone and that there were structures existing therein reflected in the Survey Records prepared in or around the year 1972.
(g) The circumstance that in the immediate neighborhood of the said property, construction of Housing Projects had come. There are various residential developments/colonies within the radius of 1 km of the said property. There is a huge educational institution namely BITS, Pilani, which existed approximately at a distance of 3 to 4 kms from the said property.
41. It is stated in the affidavit that the applicants have targeted respondent No.1 and have raised no issues against the similarly placed development projects. The property in question is neither identified as Private Forest or Government Forest. All allegations with respect to the property being a No Development Zone or thickly forested area, are denied and also it is denied that it is contiguous part of the land in Survey No.43/1. It is true that ODP indicates the project site as Settlement Zone. The Notification of ODP is issued after compliance with elaborate procedure prescribed for its preparation and notification and that no objections were Page 24 of 75 raised by the villagers of Dabolim, Sancoale and Chicalim in that regard. The process of preparation of ODP commenced approximately two and half years back and there is no record of any objections by the villagers or any NGOs, including the applicants. It is denied that ODP is in conflict with the Draft Regional Plan 2021. Finally notified ODP is required to prevail over the Draft Regional Plan. It is also denied that ODP does not respect the orders of the Hon'ble High Court in the matter of hill slopes or forests and that there is any proposed destruction of steep, forested hill slope.
42. Further it is mentioned that Sawant and Karapurkar Committees have not identified the impugned plot as being covered by forest. The forest authorities have also not identified the impugned plot being covered by forest. There are various developments, which have come up very close to the impugned plot. Further it is mentioned that despite the permissions, respondent No.1 has not felled the trees, where such felling could be avoided as it is committed to maintain maximum green cover and would comply with the condition relating to planting of at least three trees for every tree being felled. The vegetation covered in the impugned plot consists mainly 3rd class cashew, 3rd class Moi, 3rd class Kundo, 3rd class Char, etc. species, which are not forest species. The applicants have deliberately not bothered to make reference to the species of trees at the site, girth of the trees, canopy cover and other relevant parameters in the matter of determination of forest or non-forest status. The satellite data also does not differentiate between the trees and undergrowth. The satellite data cannot be relied upon for determination of any particular site to be a forest. Despite that, the applicants are bent upon placing reliance upon such impermissible material. It is submitted that the project site has been exempted from operation of Sections 30, 32, 33 and 34 of the Land Revenue Code.
43. It is further submitted that the permissions/approvals were obtained much prior to the purchase of the impugned plot by respondent No.1. These Page 25 of 75 permissions were granted to respondent No.2 and respondent No.1 purchased the project site from respondent No.2 at a stage where number of permissions had already been granted by the various statutory authorities. Respondent No.1 could have commenced construction in the year 2007 on the basis of the permissions. There are provisions under the Planning Regulations, which permit deviations provided such deviations are within the permissible planning limits and the developer obtains revised permissions before applying for Completion Certificate. But by way of abundant precaution, respondent No.1 chose to submit revised plans for approval by various authorities. On 20.10.2008, the Village Panchayat of Chicalim wrote a letter to respondent No.6 - MPDA for forwarding of pre-construction, construction and post-construction plans along with details of rain water harvesting and Sewage Treatment Plant, which information was furnished vide communication dated 17.11.2008, copy of which is annexed as Annexure-E. It is stated that respondent No.6 - MPDA failed to pass any order within three months from the date of receipt of application for revised plans. Hence, respondent No.1 was left with no options but to file an appeal under Section 45 of the Town and Country Planning Act, 1974 before respondent No.5. The said appeal was not disposed within the statutorily prescribed period. Hence, deeming permission came into effect. Respondent No.1 had no role to play in this entire process, except to submit the revised plans consistent with the Planning Regulations and for a period of almost over seven months, he did not take-up any construction work. Further it is mentioned that deemed approvals do not obviate necessity of compliance with the Building Bye-laws and Planning Regulations. The Town Country Planning Act, 1974, apart from containing the provisions of deemed approvals, also contained the provisions of regularization/retention of developments which have been carried out even without obtaining the Page 26 of 75 requisite permissions, provided the same are consistent with the Building Bye-laws and Planning Regulations.
44. It is further mentioned in the said affidavit that by order dated 22.12.2006, the area occupied by the mundkarial houses was not partitioned as contended by the applicants and that they have continued to remain part of Survey No.43/1, Dabolim village, Mormugao-Goa. There is difference between partition and sub-division which the applicants are aware. The same even today continues to be part of Survey No.43/1 of Dabolim village. The exemption has been granted vide order dated 20.02.2006. There is mere certification that the conditions for exemption have been complied with and the application dated 29.01.2007 was made for the purpose of such certification consistent with circular dated 09.10.2006. The project site was exempted from the applicability of Sections 30, 32, 33 and 34 of the Land Revenue Code, for which an application was made by respondent No.3 through respondent No.2 as the then owner of the property surveyed under Survey No.43/1, Dabolim village. The allegation of the applicants that a sly attempt was made by MPDA to help respondent No.1 is entirely unsustainable and baseless. Because the record would reveal that respondent No.1 purchased the project site in November, 2007 i.e. ten months after the application dated 29.01.2007 came to be submitted by respondent Nos.2 and 3. It is further denied that ODP shows a green belt in which area is zoned as "R" (Recreational). How the applicants could have speculated that respondent No.1 would purchase the project site after ten months and would put up a project consisting of Rs.130 crores and thereafter, the apartments are sold by him at the rate of Rs. One crore to prospective purchasers. The project had been granted approvals between the years 2007-2008. The Exemption Notification dated 20.02.2006 is neither site specific nor individual specific. It is also denied that the circular dated 20.02.2006 is in violation of Forest Conservation Act, 1980 and is Page 27 of 75 contrary to the orders passed by the Hon'ble High Court in Writ Petition No.344 of 2002.
45. Further it is mentioned that benefit of the exemption granted to Survey No.43/1 is available to survey No.43/1A as the said survey number was in fact a part and parcel of Survey No.43/1. It is denied that the said survey numbers are thickly forested and/or any part of natural forest of steep slopes. The interim order that may have been passed in Writ Petition No.434 of 2006 does not apply to the project site. It is further mentioned that the report of the Range Forest Officer stating that FCA does not apply to the site in question is correct. It is denied that the plot meets with all the criteria of private forest, including canopy, forest species and minimum area of five hectares and that the slope at project site, where development has been approved, is less than 25 percent. It is denied that any felling of trees was done beyond the permitted area of two hectares. Respondent No.1 had felled 92 trees and despite due care and caution, six additional trees were damaged during the felling operations, wherein larger trees fell on the smaller ones. The same was reported to the authorities and required penalties were paid in this regard. There did not arise any question of obtaining conversion sanad as the property Survey No.43/1A was part of Survey No.43/1, which was exempted from the provisions of the Land Revenue Code. After purchase of the property in question, the same was subdivided in four plots, having the area of less than 20,000 sq.mtrs. Thereafter, respondent No.1 amalgamated these plots and had sub-division carried out, so that each sub-divided plot was less than 20,000 sq.mtrs. Hence, there was no legal requirement of obtaining Environmental Clearance but notwithstanding the same, respondent No. 1 has applied for grant of environmental clearance by way of abundant precaution. The EIA permission came to be granted after two meetings only after the Authority was satisfied that the project site meets with all the norms required by the Page 28 of 75 Ministry of Environment and Forest. The MoEF, vide letter dated 02.02.2009, has granted revised environmental clearance with "Silver Grading". The proposed increase in the number of flats was because certain blocks have been converted from 2-Bed rooms into 1-bed room.
46. Respondent NO. 5 - Chief Town Planner, Town and Country Planning Department has filed an affidavit dated 01.02.2010, wherein it is submitted that in compliance with the Hon'ble High Court's order dated 12.01.2010, directing that a site inspection report be prepared and be made available and that the same shall be finalized after hearing the applicants and the representative of respondent No.1, the site inspection report was prepared, which is annexed as Exhibit-R1. In the report (Exhibit-R1), it is recorded that the inspection was conducted on 21.01.2010 and the area was found to be large with undergrowth and trees and it was difficult to ascertain the boundaries. Next round of inspection for visual assessment will be done after respondent No.1 marks all the points and reports to the Town and Country Planning Department and final report will be submitted thereafter. In the verification, spot levels/contours are required and a third party expert agency may be appointed. The permission granted under Section 17A of the Goa Town & Country Planning Act, 1974 would be examined and also the foot prints of the building will be examined to see if it is within the permissible gradient. With the site inspection report, the methodology adopted is also annexed as Annexure-D and it is recorded that as per the Survey of India (SOI) Topographical sheet, the overall slope varies from about 19% to 24%. The slope is calculated by taking into consideration the contours at different locations/sections and the permissions are accordingly granted for the areas within permissible slope of 25%. No physical survey was carried out to verify the spot levels/contours.
47. From the side of respondent No.10 - Village Panchayat, Chicalim, an affidavit-in-reply dated 23.02.2010 has been filed, wherein it is submitted Page 29 of 75 that insofar as the licences dated 03.10.2007 granted by the answering respondent for construction in Plot Nos.1 to 4 of Survey No.43/1 of village Dabolim are concerned, the same have been granted pursuant to the applicant therein having obtained the prior permission of the Mormugao Planning and Development Authority, Mormugao Taluka. In terms of Section 134 of the Goa Daman and Diu Town and Country Planning Act, 1974, once permission for development in respect of any land has been obtained, there is no question for the Panchayat to refuse the same, particularly when nothing was shown that from Mormugao Planning and Development Authority (MPDA), permission was obtained by fraud. Further it is mentioned that so far as permissions dated 17.07.2009 granted by the answering respondent are concerned, the same are based on the record produced by the applicant (respondent No.2) and that the applicant (respondent No.2) had secured permission under deeming provision of the Goa Daman and Diu Town and Country Planning Act, 1974 and also granted by the legal opinion. Further it is mentioned that the deeming provision is as good as permission actually granted under Section 44 of the Goa Daman and Diu Town and Country Planning Act, 1974.
48. From the side of respondent No.2 - Anand Builders, affidavit-in-reply dated 22.02.2010 has been filed, wherein it is submitted that the answering respondent is concerned only with plot No.5 in Survey No.43/1, which is the subject matter of the present application. The entire Survey No.43/1 admeasured 1,02,775 sq.mtrs., which was purchased by the answering respondent from one Mr. Vithal Jagannath Naik and his wife Mrs. Indira Vithal Naik vide sale-deed dated 15.10.2007. There were some mundcars in the said property and accordingly, mundcarial land was demarcated and the area of 8405 sq.mtrs was allotted to the mundcars and the remaining area of 94,370 sq.mtrs was sub-divided into five plots Plot Nos. 1 to 4 admeasured 77,300 sq.mtrs. and plot No.5 admeasured 17,070 sq.mtrs. Plot Nos.1 to 4 Page 30 of 75 were thereafter sold to respondent No.1 vide sale-deed dated 26.11.2007 while plot No.5 was retained by the answering respondent. The said plot Nos.1 to 4 admeasuring 77,300 sq.mtrs were thereafter partitioned by respondent No.1 and granted separate number as Survey No.43/1A. The answering respondent is concerned only with plot No.5 in Survey No.43/1. The said sub-divided plot No.5 continued as Survey No.43/1, which was thereafter further sub-divided into smaller plots totaling 43 in number. The said sub-divisions were duly approved by the concerned Authority. Out of those 43 plots, 42 plots have been thereafter sold by the answering respondent through duly executed sale-deeds in favour of the purchasers and with regard to one plot, there is an agreement for sale, under a list of sale-deeds giving names of the persons to whom the plots had been sold, the plot numbers, area of plots as well as the date of execution of the sale-deed is also annexed with the said affidavit. Some of the owners have already taken permissions from various Authorities and have commenced construction on the said plots, construction of which has reached in advanced stage nearing completion. One of the purchasers namely one Mr. Eknath S. Parab, who purchased plot No.40, has duly partitioned his plot and the same has been allotted separate Survey No.43/1B. The said 42 plot owners, who are in occupation and enjoyment of the said property are necessary parties in the present application. List of these persons is annexed as Exhibit-A. Therefore, this application deserves to be dismissed for non- joinder of necessary parties. Further it is mentioned that the answering respondent does not have any connection with Survey No.43/1 now or with Survey No.43/1A, but it has been wrongly impleaded and hence, Original Application also suffers from mis-joinder of the parties. Further it is mentioned that the issues raised in the present Original Application are disputed questions of facts, which cannot be gone into Writ Petition under Article 226 of the Constitution of India.
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49. It is further mentioned that the issue regarding gradient of the land is disputed as well as the issue as to whether the said land is a forest land or not is severely disputed. The petition is also barred by delay and laches. The sand exemption was granted vide communication dated 30.01.2007, which clearly indicates that four Survey numbers fall within Settlement Zone as per the ODP 2011. Thereafter, there is a letter dated 23.02.2007, issued by the Deputy Conservator of Forests, which clearly spells out that the area under Survey No.43/1 has not been identified as a `private forest' and the same is not a government forest.
50. Further it is mentioned that after demarcation of mundcarial houses, five plots were sub-divided , which sub-division was granted final NOC by the Marmagoa Planning and Development Authority on 09.02.2007 and thereafter by the Village Panchayat on 12.03.2007. Plot No.5, which is a part of Survey No.43/1, was thereafter sub-divided in 43 plots and on completion of the construction of the roads and gutters and demarcation of the plots, the Final NOC was granted vide order dated 10.03.2008 by the MPDA and on 19.03.2008 by the Village Panchayat of Chacalim. The permission from the Tree Officer-cum-Deputy Conservator of Forests was obtained on 28.05.2007 for the felling of trees, pursuant to which the trees had been felled. Plot No.5 of Survey No.43/1 has all licenses and permissions from all the Authorities for carrying out the sub-divisional development.
51. It is further stated that the challenge made in this Original Application is to the Government Orders dated 20.02.2006 and 07.03.2007 issued under the provisions of the Land Revenue Code, 1968, which are legislative in nature and once that is the position/case, those cannot be challenged in Public Interest Litigation. In the present Original Application, the issue raised is also related to gradient of the land, which is beyond permissible limits and secondly that the said survey number is a forest land. In this Page 32 of 75 regard, it is submitted that Survey No.43/1 is within the permissible gradient. Hence, there is absolutely no bar either legal or otherwise for carrying out any construction on the said land. The sub-divided plots in plot No.5 are capable of being developed for the purpose of residential houses. Survey No.43/1 was never identified as forest land either in the Sawant Committee Report or in the Karapurkar Committee Report. The said land has also not been identified as forest land by the Forest Department. A specific query was put to the Deputy Conservator of Forests by the answering respondent vide communication dated 23.02.2007 and it was replied that the same was not identified as a private forest.
52. With respect to the exemption from the provisions of the Land Revenue Code, to have been done illegally in order to avoid NOC from the Forest Department, it is submitted that it cannot be said that the exemption was obtained in order to avoid the file being sent to the Forest Department. The letter dated 23.02.2007 issued by the Forest Department makes it unambiguously clear that Survey No.43/1 has not been identified as private forest nor is the same a Government forest. So, the answering respondent had applied for the said exemption in order to avail of the benefit of conversion charges and the same was rightly granted.
53. Applicant No.1 has filed counter affidavit dated 01.04.2010, wherein it is submitted that unsolicited report dated 22.02.2010 has been submitted by the Forest Department, facts of which are not verified on oath by the deponent/officer concerned. The said report is largely a rehash of earlier report dated 24.12.2009 prepared by the same officer. The said report refers to tree felling permissions granted in 2008-2009 to respondent No.1 although the deponent has not disclosed either deliberately or carelessly that the tree felling permission was granted in 2007 on the said plot. The Goa Preservation of Trees Act, 1984 does not permit the Forest Department to entertain such large scale indiscriminate destruction of trees, that too on Page 33 of 75 impermissible gradient of 30 degrees as per the Range Forester's report. It is further stated in the said affidavit that in para 5 of the report in question it is stated that no tree felling permission is given if the vegetation meets the criteria of forest, which is totally an incorrect statement. There are two permissions in which tree felling has been allowed in the areas demarcated or identified as meeting the criteria of forest. The Forest (Conservation) Act, 1980 itself does not prohibit the felling of trees in forest areas or the areas identified as forest to non-forestry purposes, without prior permission of the Ministry of Environment, as in the present instance. Further it is submitted that it prohibits felling of trees in forest areas if the purpose is for development, as this would require an order for diversion. In para 6 of the report dated 22.02.2010, the deponent referred to a joint site inspection with applicant No.1, conducted in December, 2009 prior to filing of the Writ Petition and at that time, deponent explicitly confirmed to applicant No.1 that the area was forest. Hence the earlier report dated 24.12.2009 prepared immediately after the site inspection categorically states that as the trees had been cut, it is difficult for DCF to ascertain whether the two hecatare area that had been felled qualified as forest or not. In the same property adjacent to where the felling has been done, there exists good tree cover along the slope, hence no further permission would be granted for any further tree felling in the area. Hence, the unsolicited report dated 22.02.2010 of the deponent cannot be relied upon as the same is submitted in order to defend the indefensible actions of the Forest Department. It is also mentioned that in the present case, like it has been the practice in earlier times, an independent Committee may be constituted to visit the site and file a report in sealed cover, which may be based on actual enumeration of trees standing on the plot, the number of trees which were permitted to be felled, the species of the trees and the canopy density. It is also prayed that till such time the Committee completes its work, the Court ought not to have Page 34 of 75 allowed the plot to be diverted to non-forestry purposes without necessary permission granted under the Forest (Conservation) Act, 1980.
54. With respect to the affidavit of the Chief Town Planner, applicant No.1 has submitted in the said counter affidavit that the detailed site inspection report does not shed any new light on the available gradient of the plots under question. A three member Committee was appointed by the deponent i.e. Chief Town Planner vide order dated 10.12.2009, pursuant to the complaints that hill cutting had been permitted in an area zoned as No Development Slopes in the Draft Regional Plan (DRP). The Committee comprised Dy. Town Planner, an Overseer from the same department and a professional surveyor Mr. Prakash Gudekar, representing the complainants/applicants. Mr. Gudekar decided to continue the survey where it had been left off on 11th. Finding that it was not possible to put a proper grid on the entire plot and take the levels on the grid due to the presence of dense forest and thick shrubs, he took spot levels from places that could be accessed, mostly along boundaries. Along the northern boundary, where intermediate levels could also be taken, Mr. Gudekar calculated that the gradient was precisely 33.70%. The report of Mr. Gudekar, together with the site plan with spot readings, was forwarded by applicant No.2 to the Chief Town Planner on 23.12.2009, copies of which are annexed as Exhibit-C colly. It appears that on 19..01.2010, the deponent, for the reasons best known to him, constituted a fresh site inspection committee, this time, comprising only of his subordinates in the Department. In that, the surveyor of the applicants was dropped from the new committee and the applicants were not even informed about the change. On 21.01.2010, new Committee visited the site, wherein a qualified professional, Architect Ritu Prasad was added as a member of the Task Force for preparation of Draft Regional Plan (DRP) 2021. It was not possible to see the boundaries from each end, hence the respondent was asked to mark the Page 35 of 75 boundaries with flags of different colours and have these mounted on tall poles to enable a second round of visual assessment. The Town Planning team decided that building footprints would be examined and noted that "to verify spot levels/contours, a third party expert may be appointed." During the second inspection, it was discovered that the respondent had committed a fraud and had fixed one of the red flags, which, according to the site plan was to be placed at a point 75 metres along the boundary, at 40 metres instead - a shortage of 3 metres. This was done at a crucial point of the plot where the gradient changed. When the applicants protested the same, the Town Planning Team asked the applicants to submit their observations in writing and these have now been annexed to the present report (undated). The said report does not carry any details of measurements taken. It merely states that an "approximate correlation" is made between the permission and the layout on the ground. Further it is mentioned that the spot level readings and physically taken measurements, which were taken by the surveyor in the presence of officials from Town Planning after a ground study on 11.12.2009 and which indicated 33.7% slope in one area of the plot after the second day's readings, have been ignored altogether, despite the fact that they were specifically called for by the Town Planner after the constitution of the new committee on 20.01.2010. The report rests its case with the observation that the Government of India topo-sheets are the only reliable calculations utilized in Goa for determining hill slope calculations and that the same methodology as adopted in other cases had been adopted for the impugned plot. The report concludes that the slopes are less than 25% and within the parameters for hill-cutting permission to be granted.
55. In this regard, the applicants submitted that the Draft Regional Plan for Goa 2021 notified on 16.10.2008 is also prepared by the officials of the Town and Country Planning Department based on the same Survey of India top-sheets and it shows that plot as No-Development Slope. Exhibit-E are Page 36 of 75 the copies of relevant pages from the Regional Plan document, to establish the above facts. The Senior Town Planner was assisted by the Task Force in preparation of Draft Regional Plan, which was later on notified in gazette under th signature of Chief Town Planner. It is for this reason that the Chief Town Planner had decided to conduct site inspection and physically verify the slope/contours. Therefore, in the present case, there was no alternative but to complete the ground truthing exercise, which was commenced on 11.12.2009 and later on was found aborted. Hence, it is prayed that this Tribunal may direct ground truthing because if the exercise of determining permissible gradients is done through visual means by the people who are not even professional surveyors, it would not be appropriate.
56. There is another affidavit of applicant No.1 dated 06.04.2010, with which site visit report dated 26.02.2010, conducted by the Chief Conservator of Forests (C ), South Regional Office, has been filed. The site visit was in connection with a proposal for construction of group housing on Survey No.257/1 of Sancoale village near Dabolim village. We are not taking facts of this affidavit into consideration because it pertains to Survey No.257/1 of Sancoale village, which is not the survey number involved herein.
57. An additional affidavit dated 22.04.2010 has been filed by applicant No.1, wherein it is submitted that the report of Chief Conservator of Forests (Central) of the Regional Office of MoEF, Bangalore, which states that there is an approximate 4 km stretch of forested hilly land in the taluka, which must be protected from the overall environmental interest of the area, which is clearly visible in the Draft Regional Plan for Mormugao Taluka, where it is marked as "No Development Slope". Copy of the Plan is annexed as Exhibit-A. In the said plan, the approximate location is given of three survey numbers, on which development projects have been approved in violation of law viz. Survey No.43 (involved herein) and two other sites. Further it is mentioned that at Exhibit-B annexed is the copy of tree felling permission Page 37 of 75 dated 28.05.2007 issued to respondent No.1 and the Bond signed by the POA holder Shri Anand Bose, which records that the land is forest land. The noting records that the slope of the property is approx.. 20 to 25 degrees.
58. An affidavit dated 15.03.2010 has been filed by the Chief Town Planner - respondent No.4, wherewith a detailed site inspection report is annexed as Exhibit-R1 colly. The said report relates to survey No.43/1A of Dabolim village, wherein it is recorded that in compliance with the Hon'ble High Court's order dated 12.01.2010 passed in Writ Petition No.13/2010, a joint site inspection of Survey No.43/1A of Dabolim village was made on 21.01.2010 by the Chief Town Planner, accompanied by the officers of the Department as per the Committee constituted along with the applicant and respondent No.1. It is further recorded therein that the area was found to be large with undergrowth and trees, so it was difficult to ascertain the boundaries and hence, it was decided that the next round of inspection for visual assessment will be done after respondent No.1 marks all the points along the boundaries/sub-division plots and report to the Town and Country Planning Department. Thereafter, the inspection was conducted on 16.02.2010 and the details of the calculations were carried out and the methodology used was in accordance with Section 17A of the Town and Country Planning Act, 1974 to carry out the slope analysis of the site in Survey No.43/1A and it was found that slopes were less than 25%, which was within the parameters wherever the permission under Section 17A has been granted in the said property. Annexure-D to the Additional Affidavit of the Chief Town Planner seeks the details of methodology for determination of the slope of the site in question and it is found written therein that as per the Survey of India (SOI), Topographical sheet, the overall slope varies from about 19% to 24%. The slope is calculated by taking into consideration the contours at different locations/sections and the permissions are granted accordingly for the areas within permissible slope of 25%. Page 38 of 75
59. One affidavit dated 15.03.2010 is found to have been filed on record by the Deputy Conservator of Forest M.K. Shambhu, wherewith the report dated 22.02.2010 has been annexed, which is filed in the Hon'ble High Court in the proceedings of Writ Petition, wherein it is concluded that the Forest Department had not played any foul play and the tree felling permission has been granted as per the provisions of law.
60. An affidavit-in-reply dated 26.04.2010 has been filed by respondent No.2 - Anand Chandra Bose, wherein it has been submitted that the applicant has relied on Draft Regional Plan for Marmagoa Taluka, as per which the Survey No.43/1 falls under the Outline Development Plan of Marmagao, being a planning area. The reliance placed on Draft Regional Plan is wholly inapt. The said Draft Regional Plan relied upon by the applicant clearly shows that Survey No.43/1 falls in the "Settlement Zone"
and not in "No Development Slope. The Regional Plan has been prepared at a scale of 1:25,000 and therefore it is extremely difficult to pinpoint as to whether the survey number in question is on the slope or otherwise. The description "forest land" used in the Bond has not been used in its legal sense, rather the same has been used to describe the property, which fact is evident from paragraph No.3 of the said Bond, wherein in bracketed portion, it has been stated that the property shall be hereinafter called "forest land".
The gradient in the slope of the property is approximately 20 to 25 degrees and nothing is brought in aid to demonstrate the gradient on the land.
61. An additional affidavit dated 27.04.2010 has been filed by the Chief Town Planner, wherein the same facts have been repeated, which have been stated earlier with respect to gradient being within 25% and the area falling in "Settlement Zone".
62. The Deputy Conservator of Forests has filed an affidavit dated 27.04.2010, wherein it is submitted that respondent No.2 was granted permission to fell 73 trees on 28.05.2007 in Survey No.43/1 and that the Page 39 of 75 area where this permission was granted does not overlap with the area in Survey No.43/1A where subsequently two tree permissions were sought. Survey Nos.43/1A and 43/1 are private properties and do not constitute any government forest, nor have they been identified as private forests by the State Level Expert Committees.. 92 trees were permitted to be felled in Survey No.43/1A with a condition that 463 trees shall be planted in lieu thereof. The said permission was granted under the provisions of Goa town and country Planning Act, 1994 only after ensuring that five times of the trees felled, would be planted. When the permission was granted, there was an inspection carried out and Range Forest Officer had clearly recorded that the area does not meet the criteria of forest.
63. An affidavit dated 02.07.2010 has been filed by one Faizal Hammed Shah, showing himself therein to be respondent No.13, which is found to be incorrect name, as at serial No.13 in the array of respondents in this application, name of Sajjad Hussein is shown. Hence, we ignore this affidavit.
64. Another affidavit dated 02.07.2010 has been filed by one Safiya Haneef, but even this appears to be wrong name because respondent No.14 in the array of respondents in this application is shown as Mohammed Aarif Bhatti. Hence, we ignore this affidavit.
65. An affidavit dated 02.07.2010 has been filed by one Shamshad Sayyed, showing himself therein to be respondent No.17, but we find that respondent No.17 in the array of respondents of this application, name of Sandeep Janardhan Halarnekar is shown. Hence, we ignore this affidavit.
66. An additional affidavit dated 08.01.2011 has been filed by respondent No.1, wherein it is submitted that MoEF, vide its order dated 15.04.2010, had kept the Environment Clearance issued on 11.01.2010, in abeyance until detailed re-examination of the project in the light of the issue raised in Writ Petition No.13/2010. The Expert Appraisal Committee (EAC) in its Page 40 of 75 meeting dated 09/10.11.2010 found that there was no infirmity in the Environmental Clearance dated 11.01.2010 and the same was communicated to respondent No.1 on 04.01.2011.
67. An affidavit dated 24.01.2011 has been filed by respondent No.9, wherein subsequent developments are being placed on record through this affidavit, which have taken place pursuant to the communication dated 15.04.2010 incorporated in the order of the Hon'ble High Court dated 27.04.2010. Further it is mentioned that the EAC had conducted hearing on 21st to 23rd July, 2010 in connection with this matter. The Chief Town Planner, Town and Country Planning Department of Government of Goa was also requested to examine at site and inform the slopes and permissibility of construction and upon receipt of the same, the matter was again considered on 09/10.11.2010 in the EAC meeting, wherein recommendation is made in the matter and the said recommendation is accepted by the Ministry, which was to the effect that the Project Proponent had to obtain prior clearance from the Local Body as per the local laws incorporating all the Environmental parameters as suggested by the EAC and that the action on the above issue should be taken only after the Hon'ble High Court orders about revocation of abeyance order.
68. Counter affidavit dated 21.02.2011 has been filed by applicant No.1, wherein it is submitted that the EAC has not come to any finding , either on issue of permissible slopes or forests. The forest issues are dealt with exclusively by the Forest Advisory Committee set up under the Forest (Conservation) Act, 1980 and therefore, the EAC had no jurisdiction. No site visits were conducted by the Forest Department on 21.01.2010 and 16.02.2010 as recorded in EAC minutes. Regarding forestry status of the plot, it is submitted that the EAC had sought information on the forestry status of the plot, pursuant to its first meeting. Applicant No.2 wrote to the Principal Chief Conservator of Forests on 16.08.2010 requesting for site Page 41 of 75 inspection. The request was granted and communication dated 21.09.2010 was addressed to the Expert Committee on Forests, but no further action ensued. Misc. Civil Application No.681 of 2010 was filed before the Hon'ble High Court seeking appropriate directions and the Hon'ble High Court issued notice to the aforesaid Committee on 25.10.2010. The said matter is pending for orders.
69. Respondent No.1 has filed counter affidavit dated 06.04.2011, wherein it is submitted that respondent No.9 - MoEF, without giving any hearing to the answering respondent, issued letter dated 15.04.2010 informing that Environmental Clearance issued on 11.01.2010 shall be kept in abeyance till the final decision in the matter is taken by the Ministry. Thereafter, respondent No.9 constituted an Expert Appraisal Committee (EAC) to once again inquire into the Environmental Clearance dated 11.01.2010 in the light of the issues raised in the present petition. The EAC had called for information from the Chief Town Planner about the slope and permissibility of construction. The EAC held its meeting on 9th/10th November, 2010 and considered the matter in detail, including the information provided by the Chief Town Planner and observed that the project was revised and after thorough examination and scrutiny, the Ministry had granted revised Environmental Clearance to the project on 11.01.2010. The EAC took note of this site inspections carried out by the Chief Town Planner and recommended that counsel for respondent No.9 may be informed that the issue is related to local laws and Environmental Clearance has been issued only under EIA Notification, 2006. The EAC had clearly held in the said meeting that there was no infirmity in the Environmental Clearance dated 11.01.2010 and it was recorded that the local clearances were the concerns of the local bodies. Further, on 15.04.2010, it was informed by respondent No.9 to respondent No.1 that the Environmental Clearance dated 11.01.2010 shall be kept in abeyance till the final decision in the matter is taken by the Page 42 of 75 Ministry. The Environmental Clearance dated 11.01.2010 is in addition to the Environmental Clearance already granted to the answering respondent as far back as on 02.02.2009. Rest of the facts, which are mentioned in this affidavit, are the same which we have already taken into consideration earlier. Lastly it is stated that the abeyance was limited to the Environmental Clearance dated 11.01.2010 till the Ministry takes a final decision. The Ministry having finally concluded, based on the recommendations of EAC that there was no infirmity in the Environmental Clearance, abeyance order automatically stands revoked.
70. An affidavit dated 19.04.2011 has been filed by respondent No.9, wherein it is submitted that a Committee was constituted by the answering respondent on 24.02.2011 with a direction to examine two issues as follows:
(a) Whether the site is located in forest land ?
(b) Whether the slope as exists is suitable for development purpose ?
71. The site inspection was conducted by the Technical Committee and respondent No.1, which submitted a report, which is annexed as Annexure- R1, wherein following is held:
"Retaining natural vegetation in the areas, especially the portion with slope of about 25% of the project area as forest appears to be necessary from the overall environmental interest of the area. As per the guidelines issued by the Ministry under Forest Conservation Act, 1980, the Central Government will not entertain any proposal for diversion of forest land for construction of residential or dwelling houses."
"The middle part of the project site appears to have portions having more than 25% slopes, as indicated by the contours on the plans and no development is permissible in this area. The extent of area where no development can take place need to be determined by actual survey of the plot(s), since, the slope is hovering around 25% in the middle portion. In the remaining area where development is not restricted on the basis of gradient, the development may be permissible subject to other applicable rules/outcome of the Court cases, if any."Page 43 of 75
72. In this affidavit, the Technical Committee advised that the work of identification of the area by the Committee is awarded and that the final decision should be taken only after the decision of the Committee constituted by the State of Goa is submitted. Further it is submitted in the affidavit as regards the issue of slope that the Committee has observed that "the middle part of the project site appears to have portions having more than 25% slopes, as indicated by the contours on the plans and no development is permissible in this area. The extent of area where no development can take place needs to be determined by actual survey of the plots, since the slope is hovering around 25% in the middle portion. In the remaining area where development is not restricted on the basis of gradient, the development may be permissible subject to other applicable rules/outcome of the Court cases, if any".
73. In view of above, the answering respondent has decided to await the decision of the Committee constituted by the State Government of Goa and pending their decision, the Ministry has decided to keep the Environmental Clearance in abeyance.
74. From the side of respondent No.7, the Deputy Conservator of Forests has filed an affidavit dated 25.06.2012, wherein it is submitted that the Hon'ble High Court, in Writ Petition No.395 of 2011, has, by order dated 10.04.2012, directed the Forest Department to inspect the property bearing Survey No.43/1 of Dabolim village, where respondent No.1 proposes to carry out development. The Hon'ble High Court further directed the Forest Department to prepare the report and submit the same in a cover along with an affidavit of a responsible officer of the Forest Department to the Hon'ble High Court within a period of eight weeks. Further it is stated that Vide order dated 02.05.2012 passed in M.C.A. No.437 of 2012 in Writ Petition No.13 of 2010, the Hon'ble High Court was pleased to modify the order dated Page 44 of 75 10.04.2011 and directed the Forest Department to inspect the entire Survey No.43/1 instead of part of Survey No.43/1 of Dabolim village in terms of the order dated 10.04.2012.
75. Further it is submitted that the report has been submitted before the Hon'ble High Court in a sealed cover, which is annexed at pages 450 to 452 of the paper-book. Findings along with reasons and conclusions in the said report are as follows:
"Findings along with reasons :
Based on (i) field verification, (ii) Satellite imagery and (iii) Records of permission for tree felling issued earlier, the following findings with reasons are recorded. The findings of the inspection can be categorized in 3 categories for clarity and convenience:
1) The area of Sy no.43/1 which is outside M/s DLF Homes Pvt Ltd/ M/s Saravati Builders and Construction Pvt Ltd was inspected. It is found that there are houses, vacant plots, roads, drains, electricity poles etc at present along with scattered trees.
More than 25% of the trees present are teak and other non-forestry species. The tree felling permission for 73 trees which was given by this office in 2007 in the same area was verified and it is found that 35 trees out of 73 trees permitted to fell were teak trees. Considering that the Teak tree species is not naturally available in that area, teak must have been planted by people. Also cashew, coconut and other trees are present in the area. The criteria that the area to be declared as a Private Forest should have more than 75% of the Tree Species of forestry in nature is not fulfilled as the trees appear to have been planted. Though the teak tree is a forest tree, its origin here is not natural as found by the nature of vegetation in adjacent areas and as per discussion held with other Forest Officers about the occurrence and distribution of teak in this area.
Considering the above facts, the area in 43/1 that is not part of 43/1A should not be considered as Private Forest. This area is demarcated from the DLF property partly with barbed wire fencing & partly with laterite wall.
2) Second category is the area which is part of 43/1A and owned by M/s DLF Homes Pvt Ltd/M/s Saravati Builders and Constructions Page 45 of 75 Pvt. Ltd. It has an area of 7.73 ha. Out of this 7.73 ha, a small portion of 0.6503 hectare as marked on the satellite imagery and as verified on the ground has less density and hence does not meet the criteria of deemed forest. Out of the remaining 7.0797 hectare in Survey No.43/1A, tree felling permission was given in 2 hectare (one hectare each at a time).
Excluding this 2 hectare in which tree felling permission was given by the then Tree Officer, remaining 5.0797 hectare in Survey number 43/1A meets the criteria of private forest. The sample plots indicate more than 75% of the species to be forestry in nature, canopy density is more than 0.4 and the area is more than 5 ha. All the three criteria of Private Forest are met. Hence development of this 5.0797 hectare in Survey number 43/1A, once considered as Private Forest, shall attract the provisions of Forest Conservation Act, 1980.
3) Third category I s the area of 2.00 hectare in Sy.No.43/1A where tree felling permission was given. As the trees in this 2 hectare have already been felled, site inspection does not help much in verifying the density of the vegetation. The then officials have clearly indicated that Forest Conservation Act is not applicable to the area & have gone ahead & given tree felling permission. Further the area was not identified as Private Forest though two committees. However on verification of tree felling list and on considering the area along with remaining portion of petitioner's property, it can be concluded that the area meets the criteria of Private Forest.
Final Conclusion :
In Sy.No.43/1 (including petitioner M/s DLF Homes Pvt. Ltd's property) all of the petitioner's property meets the criteria of Private Forest in area admeasuring 7.7300 ha."
76. An additional affidavit dated 11.09.2012 has been filed by respondent No.1, wherein it is submitted that respondent No.7 has filed Field Inspection Report before the Hon'ble High Court stating therein unambiguously that Survey No.43/1A wherein it is submitted that Dr. Suneesh Buxy, Deputy Conservator of Forests had filed an affidavit that the Field Inspection Report Page 46 of 75 has been prepared by Mr. Mahesh Kumar Shambhu, Deputy Conservator of Forests. In this regard, it is further submitted that Mr. Mahesh Kumar Shambhu, in his capacity as Deputy Conservator of Forests, not on one occasion, but on two occasions has filed affidavit before the Hon'ble High Court, stating therein unambiguity that Survey No.43/1A, wherein the respondent No.1 is supposed to carry out the construction activity, is not a private forest land, which is earlier affidavit dated 15.03.2010 along with the report dated 22.02.2010. The report dated 22.02.2010 categorically mentions that "Survey No.43/1A of Dabolim is not a notified Government forest. It is a private property". It further states that "tree felling permissions is given by the office of the Tree Officer only after visiting the field and verifying the vegetation. If the vegetation meets the criteria of forest then tree felling permission is not given".
77. It is further stated in the said affidavit that thereafter, the same officer once again filed an affidavit dated 27.04.2010 before the Hon'ble High Court defending the report dated 22.02.2010 and unambiguously stating that the report is factually correct and further stated that "the area in survey no.43/1A and 43/1 are private properties and do not constitute any government forest nor have they been identified as private forests by the State Level Expert Committee". "I reiterate and maintain my statement that no permission to fell tree is given if property meets the existence of forest".
78. In this affidavit, it is further mentioned that in the light of the aforesaid two affidavits dated 15.03.2010 and 27.04.2010, together with the Site Inspection Report dated 22.02.2010, which had categorically recorded that the property of respondent No.1 is not a private forest, the present Field Inspection Report prepared by the same officer, whereby a complete volte face is made by the same officer in declaring the very same property of respondent No.1 as a private forest is liable to be discarded and this act on the part of the said officer would come under the definition of perjury.Page 47 of 75
Further it is mentioned that neither Sawant Committee nor Karapurkar Committee has identified Survey No.43/1A as being a forest. Further the Outline Development Plan (ODP) for Mormugao Taluka notified vide Gazette Notification Series III of 05.02.2009 shows the site as Settlement Zone. In fact, all the permissions, licenses, no objection certificates and approvals have been issued to respondent No.1 as per the ODP in force.
79. It is further stated in the said affidavit that whether a particular property is a forest land or a non-forest land, the Hon'ble Supreme Court, in the case of Tata Housing Development Corporation, has clearly laid down that satellite imaginary could not have been taken into consideration by the Committee to arrive at a finding that the property concerned in that case was a forest land. As such, the reliance on satellite imaginary in the Field Inspection Report to submit that the said property is a forest land is erroneous and unsustainable in law.
80. Further it is submitted that the property has many undergrowths in the form of bushes, brush wood, wild grass, climbers, creepers, etc., which have been in existence for the last six years or thereabouts. Such undergrowth is in green colour and on a satellite imaginary one cannot make out any distinction between the green undergrowths and green trees. The entire satellite imagery looks homogenous which is in fact misleading and does not correspond with the factual situation that arises at the site. Though there are trees in the said property, the same are scattered and the green colour which can be seen on the satellite imagery is only on account of the ground canopy of brush wood, wild grass, climbers, creepers, etc.
81. Further it is mentioned that this Field Inspection Report indicates that upon felling of the trees in two hectares portion, site inspection does not help much in verifying the density of vegetation. However, Mr. Mahesh Kumar Shambhu, Deputy Conservator of Forests, in enthusiasm to declare this area of two hectares where the building project is supposed to come up, as a Page 48 of 75 forest, has concluded that upon verification of trees felling list and on considering the area along with the remaining property, it can be concluded that area meets the criteria of "private forest". It is further mentioned that about the balance five hectares of area of the said property for which the tree felling has not taken place, same is practically inaccessible on account of the undergrowths and no detailed physical inspection of the said five hectares was carried out by the Inspecting Team. The same is styled as forest only on theoretical basis, . The Field Inspection Report says "the sample plots indicate more than 75% of the species to be forestry in nature, canopy density is more than 0.4 and the area is more than 5 hectares. All the three criteria of Private Forest are met".
82. It is further submitted that the answering respondent requisitioned the services of a retired Deputy Conservator of Forests Mr. S.N. Sheth to carry out the inspection of the site in question who has recorded that he was unable to enter into the property from several sites due to the presence of thick ground canopy which has not been cut for at least six years. He has further recorded that on account of these conditions at the site, it is unclear as to how any forest department officer/official has carried out the inspection and how it is possible to report that the site is a private forest in such circumstances. It is stated in the affidavit that it is clear that except two hectares of the said property, the remaining five hectare of the said property has not at all been physically inspected. Therefore, the Field Inspection Report has been prepared without any such inspection, which needs to be discarded.
83. Respondent No.9 - MoEF has filed an affidavit dated 22.07.2013, wherein it is submitted that the report of the Forest Department of Goa State, particularly that of Mr. Mahesh Kumar Shambhu, Deputy Director (Forests), South Goa Division, Margao was examined by the Ministry and the Page 49 of 75 Ministry has taken following decision by categorizing the report into three categories :
(i) The area of Survey No.43/1 which is outside M/s DLF Homes Pvt. Ltd.
i.e. M/s Saravati Builders and Constructions Pvt. Ltd was inspected and it was found that the criteria that the area to be declared as a Private Forest should have more than 75% of the Tree Species of forestry in nature is not fulfilled as the trees appear to have been planted. Thus the area in survey No.43/1 is not part of 43/1A and should not be considered as Private Forest.
(ii) The area owned by M/s DLF Homes Pvt. Ltd / M/s Saravati Builders and Constructions Pvt. Ltd covers an area of 7.73 Ha out of which 0.6503 Ha does not meet the criteria of deemed forest and out of the remaining 7.0797 Ha, tree felling permission was given in 2 Ha and the remaining 5.0797 Ha in Survey No.43/1A meets the criteria of Private Forest.
(iii) In the area of 2.00 Ha in Survey No.43/1A, trees have already been felled owing to tree felling permission and the inspection does not help in verifying the density of the vegetation. It has already been indicated that the Forest (Conservation) Act, 1980 is not applicable to the area.
84. Further it is mentioned in this affidavit that the inspection report held that the property of M/s DLF Homes Pvt. Ltd, admeasuring 7.7300 Ha meets the criteria of Private Forest. In the light of above inspection report, the area owned by M/s DLF Homes Pvt. Ltd / M/s Saravati Builders and Constructions Pvt. Ltd is private forest land and accordingly, prior permission of the Central Government is required under Section 2 of the Forest (Conservation) Act, 1980 in accordance with the Hon'ble Supreme Court order dated 12.12.1996 in Writ Petition (Civil) No.202 of 1995 in the matter of T.N. Godavaraman Thirumulpad Vs. Union of India. Two State Level Expert Committees were formed by the State Government to identify forests in private areas. Survey No.43/1A was not identified as Private Forest by the said Committee. Vide affidavit dated 27.04.2010, it was submitted that the area of Survey No.43/1A and 43/1 are private properties Page 50 of 75 and do not constitute any government forests, nor have they been identified as Private Forests by the State Level Expert Committees. Further it is mentioned in this affidavit that with the above facts, an affidavit was submitted before the Court on 24.01.2011 stating that the Ministry shall abide by the decision of Hon'ble Court in the matter and would decide lifting of the abeyance order thereafter. The inspection report submitted by the Deputy Conservator of Forests, South Goa Division following the Hon'ble High Court order dated 10.04.2012 mentioned that 5.079 hectare in Survey No.43/1A meets the criteria of Private Forest and would attract the provisions of Forest (Conservation) Act, 1980.
85. Affidavit in reply dated 27.08.2013 has been filed by respondent No.1 DLF Homes Goa Pvt. Ltd. to the affidavit dated 22.07.2013 filed by respondent No.9, wherein it is submitted that respondent No.9 has repeated the undated report of Mr. Mahesh Kumar Shambhu, Deputy Conservator of Forests filed pursuant to the order dated 02.05.2012 passed in the Writ Petition. Earlier two affidavits dated 15.03.2010 and 27.04.2010 were submitted by the same person, wherein, in an unambiguous terms, it was stated that the subject property did not fall within the category of forest and is part of Settlement Zone. For the reasons unknown to the answering respondent, respondent No.9 has now sought to rely upon the undated report of Mr. Mahesh Kumar Shambhu. By order dated 15.04.2010, respondent No.9 directed respondent No.1 not to proceed with the construction till a detailed examination of the issues raised in the present petition is made by the Expert Appraisal Committee. In the meantime, the Environmental Clearance granted on 11.01.2010 was kept in abeyance till final decision to be taken by the Ministry. The said communication dated 15.04.2010 has been challenged by respondent No.1 in Writ Petition No.395 of 2011. The project was referred to the Expert Appraisal Committee for re- examination, which, after deliberations, sought information from respondent Page 51 of 75 No.1 to submit the details of trees cut down with their permissions and certifying that no other trees will be cut, copy of the contour map superimposing the layout plan of the site with clear spot levels authenticated by the local Town Planning Department be submitted, copy of the permissions for cutting of trees and a certificate from DFO that the area is not declared as Forest under the Forest (Conservation) Act be submitted.
86. It is further stated that the EAC, after consideration of the matter, observed that it had suggested that the Ministry may inform the Government counsel that the site inspection should be conducted twice by the Government Department viz. Town Planning Department and Forest Department on 21.01.2010 and 16.02.2010. The Project Proponent had to obtain prior clearance from the local body as per the local laws incorporating all the Environment parameters as suggested by the EAC and further action on the issue would be taken only after the order of the Hon'ble High Court about the revocation of the abeyance order. It is further mentioned that after observations of the EAC, respondent No.9 issued a letter dated 04.01.2011 to the then Assistant Solicitor General of India (ASGI), stating very clearly that EAC, at its meeting held on 09/10.11.2010, had found that the Environmental Clearance dated 11.01.2010 has been issued under EIA Notification, 2006 and that it did not suffer from any infirmity.
87. It is further submitted in this affidavit that pursuant to the order dated 12.12.1996 passed in Writ Petition No.202 of 1995 (T.N. Godavaram Thirumulpad Vs. Union of India), the Government of Goa appointed a Committee under the Chairmanship of Shri S.M. Sawant, which submitted two interim reports in February, 1997 and September, 1997, respectively, followed by final report dated 08.12.1999. The first interim report was in relation to the Government forests and the second report laid down the criteria to identify private forests and conducted site inspections all over Goa and identified private forests and it conducted the site inspection all over Page 52 of 75 Goa and identified forests and also submitted list of disputed forest lands in North Goa and South Goa. It also identified such areas, which were forests on lands other than Government Forest and Revenue Lands in North and South Goa. It also identified forest lands which were cleared for development works and mining purposes. The said report has not clearly identified the Survey No.43, from which Survey No.43/1A has been carved out as forest land. The final report dated 08.12.1999 was annexed along with the additional report dated 15.03.2013 in connected Writ Petition being Writ Petition No.395 of 2011.
88. It is further submitted that the Final Report of Sawant Committee was examined by the State Government and decided that the said report was complete. However, many more areas were yet to be identified. In view of this, the State Government decided to constitute another Committee for more detailed inquiry to identify forests in the State of Goa vide order 04.09.2000 under the Chairmanship of Dr. Hemant Karapurkar. That Committee submitted its report on 16.12.2002, identifying, inter alia, new forest areas in North and South Goa. These areas are over and above the area identified by Sawant Committee. Even Karapurkar Committee has not identified the land in question herein as forest. The report of Karapurkar Committee is annexed with additional affidavit dated 15.03.2013 in connected Writ Petition No.395 of 2011.
89. Further it is mentioned that the communication from the Deputy Collector/SDO, Murmurgao, vide letter dated 30.01.2007 as well as Deputy Conservator of Forests categorically stated that the survey number in question was not a Private Forest.
90. With respect to credibility of the report of Mr. Mahesh Kumar Shambhu, it is submitted that the same cannot be relied upon in view of he having submitted two contradictory reports, which need not be repeated here again.
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91. The applicant has filed another affidavit dated 02.04.2014, stating therein that perusal of the minutes of the meeting of the Forest Expert Committee, South Goa, that the Expert Committee at its 7th meeting held on 16.04.2013, has identified Survey No.43 as Private Forest as per site inspection.
92. Respondent No.7 - Tree Officer has submitted an affidavit dated 31.05.2014, stating therein that this Tribunal, vide order dated 03.04.2014, directed the Sub-Divisional Forest Officer and Member Secretary of the State Level Expert Committee to visit the property under survey No.43/1 of Dabolim village as well as other survey numbers of village Dabolim and submit a status report. Copy of the order dated 03.04.2014 is annexed as Exhibit-A. Copy of the report prepared by the South Goa Forest Division Committee, after carrying out the site inspection, identification of private forest and demarcation thereto along with survey plan of the same, is annexed as Exhibit-B with the affidavit and the conclusion in the said report is drawn that Survey No.43/1A of village Dabolim is a Private Forest and Survey No.43/1A of village Dabolim contains 1250 sq.meters of private forests. It is further mentioned that Survey No.43/1A of Dabolim village contains 73,162 sq.meters of private forest out of 77,300 sq.meters total area.
93. From the side of respondent No.1 - M/s Saravati Builders and Constructions Pvt. Ltd.(DLF Homes Goa Pvt. Ltd.), reply-affidavit dated18.02.2014 has been filed, stating therein that challenge by the applicants to the other statutory permissions were waived by the applicants as is evident from a perusal of the order dated 17.10.2013 passed by the Hon'ble High Court in Writ Petition No.13 of 2010. The answering respondent was very diligent before purchasing the property in question as Public Notices dated 29.10.2007 and 22.10.2007 were published on behalf of the answering respondent in English dailies i.e. The Navhind Times and Page 54 of 75 Herald, respectively. Title to the said property came to be certified as legal and marketable by Advocate Dajvip Patkar vide Title Report dated 05.11.2007. It was specifically asked to the Advocate to verify as to whether the site was identified as forest in the Sawant and Karapurkar Committee Reports and found the property not to have been identified as forest. Survey No.43/1 was falling under the Settlement Zone as per ODP, 2001, which was not identified as private forest.
94. Further it is mentioned in the said reply that the Regional Plan for Goa, 2021 has not identified the property Survey No.43/1A as forest. Hence, the claim of the applicants is liable to be rejected. The satellite data cannot be relied upon to determine whether a plot of land is forest land or not. Hence, there was no requirement for the answering respondent to obtain NOC from the Forest Department.
95. Rest of the contents of this reply-affidavit are nothing but repetition of the averments/facts made by respondent No.1 in their earlier affidavit.
96. The proceedings in this case remained in abeyance for a long time because of the matter being pending before the Hon'ble High Court and when the same was finally decided by the Hon'ble High Court, the proceedings in the present Original Application have been started after a long time.
97. An affidavit dated 06.08.2024 has been filed by respondent No. 1 placing on record subsequent developments. In this affidavit, it is submitted that the answering respondent was in the process of developing a group housing project on its land situated in Survey No.43/1A of Dabolim and had applied for requisite approvals and permissions from the concerned Authorities. Original Applicant in the Original Application (Goa Foundation) had preferred Writ Petition (C) No. 13/2010 before the Hon'ble High Court at Goa, inter alia challenging the permissions and approvals granted by the same Authorities in relation to the project in question, on the ground that Page 55 of 75 the area on which the project is situated is No Development Zone, particularly a forest. On 11.01.2010, the MoEF had issued an Environmental Clearance for the project in question. The Hon'ble High Court, vide order dated 12.01.2010 passed in Writ Petition (C) No.13/2010, directed the answering respondent not to go ahead with cutting of trees or hill in the subject property till the next date of hearing and respondent No.9
- MoEF thereafter issued a communication dated 15.04.2010 indicating the issues raised in Writ Petition No.13 of 2010 and directed the answering respondent not to proceed with the construction of the project in question till a detailed examination of the issues involved was done by the EAC. The MoEF - respondent No.9 directed the Environment Clearance dated 11.01.2010 to be kept in abeyance till final decision in the matter is taken by the Ministry. In terms of the order dated 12.01.2010 of the Hon'ble High Court, the Chief Town Planner, Town and Country Planning, Goa (respondent No.4) filed detailed site inspection report and affidavits confirming that the slope gradient of the area was less than25% and therefore, there was no bar to permit development in terms of the Planning Rules and Regulations in force.
98. It is further stated in the affidavit that the Hon'ble High Court, vide order dated 27.04.2010, took note of the said communication dated 15.04.2010 and declined to consider granting any further interim relief to the Goa Foundation/Applicant. Thereafter, a detailed re-examination was made by the EAC as well as MoEF and categorically concluded that there was no infirmity in the Environmental Clearance dated 11.01.2010 and decided to lift the abeyance order dated 15.04.2010. Thereafter, the MoEF filed an affidavit placing on record Report of Technical Team in Writ Petition (C) No.13/2010, stating that the development on the area in question may be permissible subject to rules and outcome of court cases, if any and as far as Page 56 of 75 the issue as to whether the area is a forest, it had decided to await the decision of the Committee constituted by the State Government.
99. Further it is mentioned that the land in question was not identified as Private Forest by the earlier State Level Expert Committee (S.M. Sawant Committee and Dr. Hemant Y. Karapurkar Committee) appointed by the State Administration in terms of the order the Hon'ble Supreme Court dated 12.12.1996 passed in T.N. Godavarman Thirumalpad v. Union of India and Ors. (1992)2 SCC 267. The answering respondent had preferred Writ Petition (C ) No.395 of 2011 impugning the said communication dated 15.04.2010 issued by the MoEF to the extent that it kept the Environmental Clearance dated 11.01.2010 in abeyance.
100. Uptill here is the re-capitulation of the earlier pleadings and subsequent events are recorded as below.
101. The Sawant and Karapurkar Committees identified 67.12 sq.kms as private forest and submitted final report on 16.08.2002. However, they did not demarcate the private forest. Thereafter, in pursuance to the order of the Hon'ble High Court dated 02.07.2003 in MCA NO.350/2003 in Writ Petition No.286/2003, the State Government commenced the work of demarcating the private forest on the basis of Sawant and Karapurkar Committees and completed the demarcation and submitted final report to the Hon'ble High Court on 30.06.2008, thereby reducing the forest area from 67.12. sq.kms to 41.20 sq.kms. This exclusion of about 20 sq.kms. was challenged by the applicant/Goa Foundation in Writ Petition No.673/2008 (transferred to this Tribunal vide order dated 17.10.2013), which was eventually transferred to this Tribunal as O.A No.18/2013 (now O.A. no.479/2018).
102. Further it is mentioned that by Notification dated 27.11.2012, the Goa State Government had set up V.T. Thomas and Francisco Araujo Committees for North Goa and South Goa respectively. The Hon'ble High Page 57 of 75 Court, vide order dated 17.10.2013, transferred both Writ Petition (C ) No.13/2010 and Writ Petition (C ) No.395/2011 to this Tribunal, which was registered as O.A. No.26 (THC)/2013 (WZ) and O.A. No.27 (THC)/2013(WZ), respectively. In pursuance to the order dated 03.04.2014, passed by this Tribunal in O.A. No.26(THC)/2013(WZ), the Araujo Committee submitted a report dated 07.05.2014 which inter alia declared that Applicant's property situated in Survey No.43/1A, Dabolim, Mamugao Taluka, Goa, admeasuring 73,162 sq.mtrs as private forest out of 77,300 sq.mtrs area of the land, which was based on the Field Inspection Report of Deputy Conservator of Forest submitted before Hon'ble High Court in Writ Petition No.13 of 2010. The answering respondent challenged the Araujo Committee report dated 07.05.2014 in Writ Petition No.379/2014 before the Hon'ble High Court of Bombay at Goa, inter alia on the grounds that the same was submitted without providing personal hearing. The additional report dated 30.10.2014 was submitted in pursuance to the post decisional hearing held at short notice on 08.10.2014 followed by site inspection on 15.10.2014 and the said post decisional hearing could not cure the initial defect of impugned report submitted in violation of principles of natural justice. The Deputy Conservator of Forests filed an affidavit dated 22.02.2010 in Writ Petition No.13/2010 along with report dated 22.02.2010. Subsequently, the said official also filed an affidavit on 27.04.2010, relying on the report dated 22.02.2010. Both these affidavits confirmed that Survey No.43/1 and 43/1A are private properties and do not constitute any government forest nor have they been identified as such by the State Level Expert Committee. The same official in his Field Inspection Report dated 02.05.2012 held the same property to be private forest. Therefore, the report submitted by him could not be relied upon by the Committee. The Committee overlooked the letter of the Officer i.e. Conservator of Forests dated 23.02.2007 certifying that the said property was not a forest but a settlement. But the same was Page 58 of 75 assailed on the ground that permission for felling was given which comprised 29% trees of cashew nut. The Committee overlooked the permissions and approvals of concerned authorities, the Sawant and Karapurkar Committee Reports, the Revenue Records, the EAC and MoEF communications and the fact that Technical Team Report was not conclusive having recorded that it had decided to wait for reports of State appointed Expert Committees prior to making decision on lifting abeyance on Environmental Clearance.
103. The Hon'ble High Court of Bombay at Goa in Writ Petition (C ) No.379/2014, vide order dated 25.06.2014, was pleased to stay the effect of the said Report of the Araujo Committee dated 07.05.2014.
104. Since the issue arising in Writ Petition (C ) No.379/2014 had direct bearing on the issues in two transferred O.A.No.26/2013 and O.A. NO.27/2013, this Tribunal, on 31.10.2024, decided to adjourn both O.As. since die. Pursuant to the directions of this Tribunal dated 07.01.2016 in O.A. No.18/2013 (O.A.No.479/2018), the State Government, vide Notification dated 23.04.2018, published in the official gazette on 03.05.2018, disbanded V.T. Thomas Committee and Francisco Araujo Committee with immediate effect. Vide the aforesaid Notification, the Government of Goa, taking into consideration the grievances received from the private citizens as well as NGOs on the inclusion/non-inclusion of certain areas as private forest, appointed a new Committee called as "Review Committee-I" (for short, "RC-I"), namely `Deepshikha Sharma Committee' to cross check the work done by Sawant and Karapurkar Committees. The said RC-I submitted its report on 21.06.2019, wherein it found 4.91 sq.kms. area as qualifying the criteria of private forest in addition to 41.20 sq.kms, thereby totaling to 46.11 sq.kms. Copy of the Notification dated 23.04.2018 published in official gazette on 03.05.2018 is annexed as ANNEXURE-A12.
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105. During pendency of Writ Petition No.379 of 2014 before the Hon'ble High Court, the V.T. Thomas Committee provisionally identified 8.64 sq.kms area out of which 3.26 sq.kms was demarcated and finalized as private forest, while the Araujo Committee finalized and demarcated 5.38 sq.kms as private forest. Both these Committees submitted their final reports on 10.12.2018 and 28.12.2018, respectively, about eight months after disbanding of these Committees.
106. Vide Notification dated 21.01.2020, the State Government of Goa appointed Review Committee-II (for short, "RC-II") comprising of 8 members to review the private forests areas which were provisionally identified by the Thomas and Araujo Committees.
107. This Tribunal, vide order dated 18.08.2020 passed in O.A. No.479 of 2018, accepted the RC-I report and directed that 41.20 sq.kms. area identified by the Forest Department and 4.91 sq.kms area identified by RC-I, totaling 46.11 sq.kms. was rightly accepted as Private Forest and the same was directed to be notified by the Government and also to make suitable entries in the revenue record in accordance with the Rules. The said order stood confirmed as the appeal preferred against the said order in C.A. No.1 of 2021 was dismissed by the Hon'ble Supreme Court, vide order dated 01.02.2021.
108. The land of respondent No.1/Project Proponent i.e. Survey No.43/1A was not identified even by Sawant and Karapurkar Committees as Private Forest and therefore, was not covered under the area finalized and accepted as Private Forest by the State Government of Goa vide Notification dated 13.09.2022. The State Government, vide clarification order dated 31.07.2023, recorded that the Review Committee had till date uploaded five reports on Forest Department in the name of `Interim Report' and the same shall be read as "Part Final Report" for all purposes. In the second Part Final Report of RC-II, Survey No.43 of Dabolim, Mormagao was listed among Page 60 of 75 the survey numbers not qualifying private forest criteria reviewed by Review Committee in meeting held on 10.06.2021 (Entry No.88). A copy of the second Part Final Report of RC-Ii is annexed as Annexure-A19 and copy of Minutes of Meeting dated 10.06.2021 of RC-II are annexed as Annexure-A20.
109. In O.A. No.63 of 2022, the applicant - Goa Foundation had inter alia challenged the 5 Part Final Reports of the RC-II and the methodology adopted for identification and demarcation of private forests. Subsequently this Tribunal permitted to convert the same into Misc. Application No.03 of 2023 (WZ).
110. Further it is mentioned that the State Government of Goa, vide Notification dated 10.08.2023, has notified the private forests in the State of Goa, as reviewed and finalized by the Review Committee in its sixth Part Final Reports and the land belonging to the applicant i..e. Survey No.43 does not find mention in the said list by virtue of the second Part Final Report of the RC-II. Copy of the said Notification dated 10.08.2023 is annexed as Annexure-A23.
111. Writ Petition No.379 of 2014, which was preferred by the answering respondent before the Hon'ble High Court at Goa, was disposed of by order dated 08.09.2023 having considered the decision of the RC-II that Survey No. 43 does not qualify the criteria for Private Forest and accordingly, the gazette notification dated 10.08.2023 issued by the State Government of Goa does not mention the applicant's property.
112. It is mentioned that in Misc. Application No.03/2023, following issues were framed and the findings arrived at thereon by this Tribunal :
a) The said Miscellaneous Application preferred by Goa Foundation was not time barred.
b] RC-II did not exceed its mandate by undertaking review of forest areas finalized by Thomas and Araujo Committees.
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c) The methodology adopted by RC-II is a scientific one and it involves physical verification as well. The demarcation of private forest area done/being done by it is found appropriate.
d) The areas finally identified as private forest are by Thomas and Araujo Committee, if any area out of that is excluded as per review being made by RC-II, the said area should be got verified physically with respect to all three criteria laid down for determination of the private forest cited by the Hon'ble Tribunal. The exercise of making a final decision with area being excluded was to be made within three weeks from the uploading date of this order and till then no permission shall be granted by State Government for any kind of development work.
113. Further it is mentioned that thereafter, 7th Part Final Report submitted by RC-II in December, 2023 records that out of 550 survey numbers identified and finalized by Thomas and Araujo Committee, the RC-I had reviewed 9 survey numbers and the RC-II had reviewed 272 survey numbers (prior to the 7th Report), thus a total 281 survey numbers, already reviewed and concluded that they do not meet the criteria drawn for identification of private forest, were not being reviewed again by RC-II. The survey number of the answering respondent fell within the aforesaid survey numbers and a detailed list of the same was annexed to the report. 7th Part Final Report contains as below:
"Whereas, the methodology adopted to review survey numbers identified as Private Forest done by the RC-II to date has been accepted by Hon'ble NGT. As such, 271 Survey Numbers that do not meet the criteria drawn for identification of Private Forest are not being reviewed again by the RC-II....... Summary of 7th Part Final Report.
iv) As per the Direction of Hon'ble NGT vide dated 12.09.2023, survey numbers identified as final by Thomas and Araujo Committee have been verified on the ground and reviewed after a public hearing within the stipulated time. RC-II has finalized an area of 1.287 sq.km (128.7090 Ha.) in 211 survey numbers which are qualifying the Private Forest criteria."
Copy of the 7th Part Final Report uploaded by the RC-II is annexed as Annexure-A26.
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114. It is also mentioned that a separate appeal being Civil Appeal No.12234-35 of 2018 filed by Goa Foundation in Writ Petition No.202 of 1995, was disposed of by the Hon'ble Supreme Court vide order dated 24.01.2024, whereby the existing criteria for identification of the private forests in the State of Goa was found to be adequate and valid and hence, did not require any alteration. The Hon'ble Supreme Court observed that the Goa Foundation had attempted to take contrary stand on the issue of criteria for the identification of forests before the Hon'ble Supreme Court and this Tribunal. The criteria in relation to the State of Goa was set out in a tabular chart in para 71 as follows:
"a patch of land irrespective of their ownership will be deemed as forest if:
a) 75% of the crop composition of such lands should be of from forest species, and
b) Area should be either contiguous government forest land or in isolation, the minimum area so identified should be 5 ha. In case of mangroves, area less than 5 ha is also considered a forest whether or not in contiguity to government forest land.
c) Minimum 0.40 canopy density."
115. From the side of the applicant, an affidavit in rejoinder dated 11.11.2024 has been filed, stating therein that four important documents were produced in Writ Petition No.13/2010 (now O.A. No.170/2024), which are required to be considered by this Tribunal in order to decide the issue of forestry status of Survey No.43/1A of Dabolim village (respondent No.1's plot), which are as follows:
(A) The MoEF's Technical Committee Report (19.04.2011);
(B) The HC-directed Forest Report (25.06.2012);
(C) The MoEF's affidavits concerning the above two documents
(19.04.2011 and 22.07.2013);
(D) The NGT-directed South Goa Forest Division Committee (SGFDC)
report (07.05.2014)
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116. With respect to document (A) above i.e. the MoEF"s Technical Committee Report, it is submitted that on 24.02.2011, respondent No.9 -
MoEF constituted a Technical Committee of 3 persons, headed by the Chief Conservator of Forests, MoEF Regional Office to carry out site inspection of Survey No.43/1 and 43/1A to examine the controversy raised by the applicant in Writ Petition i.e. the forestry nature of the plot and the steep nature of the hill. The said Committee found the plot area to be above 5 Ha, the trees were found more than 75% forestry species and the density was > 0.4. It also found there to be natural vegetation especially on the portions with slope above 25% on the plot was necessary from the overall environmental point of view. But considering that the State Government had constituted two Committees for North and South Goa to complete the balance identification of private forests, this Committee suggested that the final decision as to whether the site is located in the forest land should be taken only after the report of the Committee was obtained. On the recommendation of the Technical Committee, the MoEF conveyed its decision to the Hon'ble High Court that it would await the decision of the South Goa Forest Division Committee (SGFDC) on the aspect of forestry status of the plot and that pending that report, the Environmental Clearance would be kept in abeyance. The Technical Committee's report has not been challenged before the Hon'ble High Court or this Tribunal. Its findings await confirmation by the SGFDC report. But respondent No.1 challenged the MoEF's decision to keep the EC in abeyance in W.P. No.395/2011 (now O.A. No.171/2024) pending before this Tribunal wherein the applicant is respondent No.3.
117. With respect to document (B) i.e. High Court's directions in respect of the Forest Department Report, it is submitted that the Hon'ble High Court, vide its order dated 10.04.2012 directed the Forest Department to inspect the site, prepare a report and submit the same in a cover to the Court and Page 64 of 75 the same would also be required to be sent to MoEF. They should take decision within six weeks. The Forest Department Report was filed vide affidavit dated 25.06.2012. The report unequivocally concludes that the Survey No.43/1A is a private forest. A copy of the said report was submitted to the MoEF, whose decision was conveyed to the Hon'ble High Court vide affidavit dated 22.07.2013, stating therein that the area owned by respondent No.1 - M/s DLF Homes Pvt. Ltd. Is a private forest land.
118. With respect to the document at (C) i.e. the MoEF's affidavits concerning the above two documents (A) and (B), it is submitted that the MoEF's affidavit dated 19.04.2011 was filed in response to the Technical Committee report, indicating therein that it had accepted the Technical Committee's view but as suggested by it, the Ministry had decided to await the decision of the SGFDC's report on the aspect of forestry status of the plot and pending that decision, the Environmental Clearance was to be kept in abeyance. The findings of the report were categorized as follows:
"1. The area of Survey No.43/1 which is outside M/s DLF Homes Pvt.
Ltd i.e. M/s Saravati Builders and Construction Pvt. Ltd was inspected and it was found that the criteria that the area to be declared as Private Forest should have more than 75% of the Tree Species of forestry in nature is not fulfilled as the trees appear to have been planted. Thus, the area in Survey No.43/1 is not part of 43/1A and should not be considered as Private Forest.
2. The area owned by M/s DLF Homes Pvt. Ltd M/s Saravati Builders and Construction Pvt. Ltd covers an area of 7.73 Ha out of which 0.6503 Ha does not meet the criteria of deemed forest and out of the remaining 7.0797 Ha, tree felling permission was given in 2 Ha and the remaining 5.0797 Ha in Survey No.43/1A meets the criteria of Private Forest.
3. In the area of 2.00 Ha in Survey No.43/1A, trees have already been felled owing to tree felling permission and the inspection does not help in verifying the density of the vegetation. It has already been indicated that the Forest (Conservation) Act, 1980 is not applicable to the area."Page 65 of 75
It was concluded in the inspection report that M/s DLF Homes Pvt. Ltd property admeasuring 7.7300 Ha meets the criteria of private forest.
119. With respect to the document at (D) i.e. the NGT's directions with regard to South Goa Forest Division Committee's report, it is submitted that the Tribunal had passed an order on03.04.2014 directing SGFDC to identify and demarcate the private forests in the village of Dabolim, South Goa, with specific reference to the plot belonging to respondent No.1. SGDFC submitted its report with respect to Survey Nos.43/1 and 43/1A to this Tribunal, stating that Survey No.43/1A was a private forest having met all three criteria of 75% forestry species, extent of the area being minimum 5 ha and canopy density being above 4%. This conclusion is in line with series of earlier reports - Technical Committee's report commissioned by the MoEF and the Forest Department report directed by the Hon'ble High Court. Thus all three reports concluded that respondent No.1's plot is a private forest.
120. Further it is mentioned that dealing with SGFDC report, respondent No.1 is now proposing that the plots Survey Nos.43/1 and 43/1A need not be considered as forest since the RC-II has excluded Survey No.43/1 from the list of private forest survey numbers in its "second part final report"
prepared after its second meeting. The contention of respondent No.1 that the second part final report of RC-II was upheld by this Tribunal by its judgment dated 12.09.2023, passed in M.A. No.3/2023 in O.A. No.478/2018, wherein this Tribunal upheld the methodology relied upon by the RC-II to exclude not just this survey number but several other survey numbers as well from being considered as private forest.
121. Further it is mentioned that in the judgment dated 12.09.2023, this Tribunal has made important distinction between the Final and Provisional survey numbers listed in the reports of the NGFDC (i.e. Thomas Page 66 of 75 Committee) and the SGFDC (Araujo Committee). As regards the final survey numbers (differentiated from the provisional), this Tribunal directed the State Government to conduct a physical verification (or ground trothing) of all these plots and listed as such in the reports of both North and South Goa Forest Division Committees. This direction was issued because the applicants therein had demonstrated that large areas identified as "final" by the two expert committees had been excluded by the RC-II based simply on FSI reports and without physical verification. This decision by RC-II was taken based solely on FSI maps. Hence, despite holding methodology used by RC-II to be appropriate, this Tribunal was conscious of the omissions and hence ordered physical verification of cases declared final by the two FDCs.
122. It is further mentioned that it is undisputed that both Survey Nos.43/1 and 43/1A are identified as a private forest by the SGFDC in its report dated 07.05.2014 (this finding is reiterated by the SGDFC in its final report dated 28.12.2018) and it is also undisputed that Survey No.43/1 was deleted from the list of the private forest at the second meeting of the RC-II on the basis of the FSI maps only. None of the survey numbers excluded on the basis of the FSI maps was visited for physical verification before their exclusion, which is in violation of this Tribunal's judgment dated 12.09.2023 as respondent No.1's plot had to be freshly visited to assess the forestry status.
123. Further it is mentioned that it appears that the decision has been taken by RC-II that such physical site visit need not and will not be carried out. The respondent No.1, in its recent affidavit dated 06.08.2024, has referred to the 7th Part Final Report of RC-II which states that as the NGT approved the methodology of RC-II which had excluded survey numbers form the NGFDC and SGFDC reports as per the FSI maps. These survey Page 67 of 75 numbers which were excluded prior to the NGT judgment, did not have to be physically verified, as their review had already been concluded.
124. Further it is mentioned that as per the NGT judgment dated 12.09.2023, the site visit of the finalized plots had to be completed within 3 months but no such site visit was ever done of the survey numbers in question, which is in defiance of this Tribunal's orders. Further it is mentioned that this Tribunal was informed by the applicant that this Tribunal's approval of the methodology followed by RC-II, which excluded the survey numbers identified by T & A Committees solely on the basis of FSI report and its decision to permit review of the plots finalized by the T&A Committees by the RC-II, whose mandate was to review only provisionally identified plots, are the two principal challenges raised by the applicant against the NGT's judgment dated 12.09.2023 in Civil Appeal No.2135 of 2024 filed by it in the Hon'ble Supreme Curt, which is pending consideration. Hence, this Tribunal may wish to desist from hearing this matter temporarily.
125. We have heard the arguments of learned counsel for both sides and have gone through the entire gamut of pleadings cited by us above and find that by the order of the Hon'ble High Court in Writ Petition No.395/2011 dated 17.10.2013, by which the matter was transferred to this Tribunal for disposal, it has been observed in paragraph No.6 by the Hon'ble High Court that there were two substantial questions raised by the applicants, namely, (i) violation of the provisions of the Forest (Conservation) Act, 1980 and (ii) construction being carried out on a steep hill slope. Out of these two issues, the applicants press only issue No.1 as per which it was to be decided as to whether the project in question was situated in Forest land within the meaning of the Forest (Conservation) Act, 1980 and finding the same to be in domain of this Tribunal under Section 14 of the National Green Tribunal Act, 2010, said Writ Petition was transferred to this Page 68 of 75 Tribunal for being decided. Therefore, it is reflected from this order that only issue, which this Tribunal has to decide is as to whether Survey Nos. 43/1A of village Dabolim is a forest land and hence, is there any violation of the Forest (Conservation) Act, 1980. Therefore, on this limited point, we have to give our finding in the case in hand.
126. In this regard, we are of the opinion that before this Tribunal, the applicants - Goa Foundation had filed Misc. Application No.3 of 2023 (Earlier O.A. NO.63 of 2022 (PB) in Original Application No.478 of 2018, wherein the applicant had challenged four interim reports of RC-II appointed by the State of Goa seeking their quashing along with the connected prayers that the methodology adopted for identification and demarcation of the private forests should also be quashed and that survey numbers of Salvador-do-Mundo, which were identified as private forest under the NGT orders, be reinstated as private forests and likewise all the survey numbers of villages Dabolim, Chicalim, Sancoale and Cortalim be reinstated. In this Misc. Application, we had considered entire issue at length which comprises Survey No.43/1A as well of village Dabolim. We had framed four issues in this Misc. Application as follows:
(i) Whether the present Application is time barred ?
(ii) Whether RC-II exceeded its mandate by undertaking review of
forest areas finalized by Thomas and Araujo Committees ?
(iii) Whether the methodology adopted by RC-II was appropriate ?
(iv) What should be the methodology for finalization of the private forest and what should be its outer time limit ?
127. We gave findings on these issues separately and while deciding Issue No. (iv), in operative part, we had directed as follows :
"91. We are of the view that in order to take extreme precaution that no-one suffers on account of errors in identification of the private foret area, the areas, which were finally identified as private forest area by the T&A Committees, if any area out of that is required to be excluded Page 69 of 75 as per review being made by RC-II, the said area should be got verified physically with respect to all three criteria laid down for determination of the private forest cited above by us. Till the final decision is taken with respect to whether the area being excluded from the list of being treated as final forest land by the RC-II which was finalized by T&A Committees as private forest, in keeping with our direction, no permission shall be granted by the State Government for any kind of development work, in the said survey numbers. This exercise shall be completed within three months of uploading of this order."
127. During the argument, the main emphasis was laid by the learned counsel for the applicants on this paragraph, stating that this paragraph would mean that because of T&A Committees having identified survey number in question as private forest, the same ought to have been physically verified with respect to all the three criteria laid down for determination of the private forest, which are categorized as under :
(i) 75% of the tree composition should be of forestry species;
(ii) The area should be contiguous to the Government Forest and if in isolation, the minimum area should be 5 ha.
(iii) Canopy density should not be less than 0.4 It was observed by this Tribunal that if any area, out of finally identified private forest by T & A Committee was required to be excluded, as per the review being made by RC-II the same would require to be physically verified along the three criteria cited above, but in the case in hand, it is not done by the RC-II within three months in respect of the plot of respondent No.1 i.e. 43/1A, which is an admitted case. Therefore, Survey No.43/1A should not be treated to be excluded from forest land, rather it should be treated to be included in private forest land where permission would require to be obtained.
128. We also find that learned counsel for the applicants has, in their affidavit dated 11.11.2024, vehemently pressed that the four documents i.e. the MoEF's Technical Committee Report dated 19.04.2011, the Hon'ble High Page 70 of 75 Court's direction for Forest Report dated 25.06.2012, the MoEF's affidavits concerning the above two documents dated 19.04.2011 and 22.07.2013) and the NGT's directions to South Goa Forest Division Committee (SGFDC) report dated 07.05.2014 and based on this, it is vehemently argued that this documentary evidence would clearly prove the survey number in question to be a forest and the same has been wrongly excluded from the list of private forest.
129. Per contra, learned counsel for respondent No.1 has vehemently argued that this Tribunal, in its order dated 12.09.2023 passed In Misc. Application No.03 of 2023 (WZ) has clearly considered is para 91 thereof this aspect thoroughly and after giving finding that the methodology adopted by the RC-II is a scientific methodology in keeping with the developments in the field of Forest Cover Map, has come to the conclusion that the reports, which were placed for its consideration, did not suffer from any infirmity and hence, they will be treated to have been approved and in the conclusion in paragraph 91, it has observed and made clear that in case any area, which was found/identified to be private forest by the T&A Committees, after review by RC-II, is required to be excluded, should be subjected to physical verification, for the sake of removal of any doubt/error/grievance to the concerned person/s by way of precaution, the same was ordered to be done only for remaining survey numbers, which were required to be scrutinized and therefore, whatever area was already examined by the RC-II as per the methodology and approval by us that area was to be considered finally, identified to be treated as final or forest or non-forest as per RC-II. It was never intended by this Tribunal that it was to be applied retrospectively for the work already having been done till passing of the judgment in M.A. No.03/2023.
130. We are in agreement with the submissions made by learned counsel for respondent No.1, whose view is also supported by the legal opinion, Page 71 of 75 which is at page 1445 of the paper-book, which was obtained by them after passing of the judgment delivered by this Tribunal in M.A. No.03/2023 on 12.09.2023, which finds mention in the minutes of the 18th meeting of the RC-II held on 23.11.2023. The relevant part of the legal opinion, referred to above, reads as follows:
"Further, as per the recent judgment of the National Green Tribunal in Misc. Application number 03 of 2023 dated 12.09.2023 "We are of the view that in order to take extreme precaution that no-one suffers on account of errors in identification of the private forest area, the areas, which were finally identified as private forest area by the T&A Committees, if any area out of that is required to be excluded as per review being made by RC-II, the said area should be got verified physically with respect to all three criteria laid down for determination of the private forest cited above by us. Till the final decision is taken with respect to whether the area being excluded from the list of being treated as final forest land by the RC-II which was finalized by T&A Committees as private forest, in keeping with our direction, no permission shall be granted by the State Government for any kind of development work, in the said survey numbers. This exercise shall be completed within three months of uploading of this order." All the survey numbers identified as final by the T&A Committee need to be reviewed by the Review Committee for submitting compliance on or before 12.09.2023."
"The matter was deliberated in detail with the background that the Hon'ble Tribunal acknowledged and accepted the methodology adopted by RC-II as scientific keeping development in the field of Forest Cover Map and physical verification done by the committee for demarcation of Private Forest. At the same time, a few survey numbers in the finalized list had already been reviewed by the RC- II.
Keeping the above-mentioned facts in view, a legal opinion is sought from the Ld.Advocate General of State to clarify whether all survey numbers finalized by the Thomas and Araujo Committee need to be reviewed retrospectively or only Survey numbers yet to be reviewed by RC-II are done prospectively."Page 72 of 75
131. As per the records available with this Tribunal, the said legal opinion was submitted by the Chairman, Review Committee-II along-with an affidavit submitted in Original Application No.72/2023 (WZ) on 02.08.2024 at page nos.1024 to 1027 of the paper book, which states as follows:-
"6. Since the 6-part interim reports submitted by the RC-II, which have reviewed 281 survey numbers out of the 550 survey numbers, which were identified as private forest by the T & A Committee, is accepted by the Hon'ble NGT, the direction of the NGT in para 91 will relate only to the remaining 269 survey numbers.
7. The exercise as directed to be undertaken in para 91 of the Order, would have to be carried out in respect of those survey numbers which were identified as private forest by the T & A Committee and which do not yet form part of the interim reports submitted by the RC-II......."
132. We are totally in agreement with this legal opinion given by the learned Advocate General of the State.
133. Learned counsel for respondent No.1 has also placed reliance on the judgment passed by this Tribunal in Original Application No.98 of 2022 (WZ) (Goa Foundation vs. State of Goa, through its Chief Secretary and Others), dated 19.03.2024; 2024 SCC OnLine NGT 214, wherein the following prayers were made:
"(i) An order be issued quashing the Conversion Sanad dated 08.11.2021;
(ii) An order be passed quashing the TCP Technical Clearance dated 08.11.2021
(iii) An order be passed quashing the Construction License dated 19.01.2022;
(iv) A direction be issued to the respondents to implement the Forest Department's order dated 07.05.2020 and to restore the trees standing on the plots in question."
134. In paragraph No.23 of the judgment, referred to above, this Tribunal has observed/noted as below:
Page 73 of 75
"Learned counsel for respondent Nos.6 and 7 has drawn our attention to pages 46 and 47, which is the sanad in question, which is prayed to be quashed by the applicant. In the said sanad, under the remarks, at serial no.4, it is recorded that the survey Nos.128/9 and 128/10 of Assagao village are not included in the private forest identified by Sawant, Karapurkar and Thomas Committee. Besides this, it is pointed by the learned counsel for respondent Nos.6 and 7 that this land has been finally deleted from the provisionally identified private forest land by the RC-II (Review Committee-II). He has also argued that all four interim reports were placed before this Tribunal in a challenge made by the applicant in M.A. No.3/2023 in O.A. No.478/2018, wherein this Tribunal has already upheld these reports, therefore, the findings which have been given by the RC-II after having been tested from all angles, including the procedure adopted, have been found to be correct. Therefore, this Tribunal cannot review its own decision. The applicant is seeking review of the said judgment under the garb of present application. Survey Nos.128/9 and 128/10 were provisionally identified as private forest by Thomas and Araujo Committee. The same was reviewed by RC-II. The report of Thomas and Araujo Committee is annexed at pages 31 to 33 of the paper-book and at page 33, in tabular form, survey No.128 as a whole along with other survey nos. i.e. 59, 61, 62, 63, 67, 68, 69, 74, 76, 101, 108, 129, 130, 132 and 133 of village Assagao, are shown to have an area of 10 Ha in toto, out of these survey numbers, Survey No.128/14 is excluded, which were yet to be surveyed. For a finding whether these survey numbers were to be finally treated forest area or not, RC-II was constituted, report of which is annexed at pages 168 to 197 of the paper-book , wherein at page 186, survey No.128 of village Assagao is considered and it is recorded as "survey number does not qualify the criteria of private forests"
135. Having pointed out above to this Tribunal, it is urged that four reports prepared/submitted by RC-II have been approved by this Tribunal of which survey number in question forms part. Therefore, once it has been finalized, question of reviewing the same does not arise.
136. We are of the view that the prayers, which are made in the present application, are required to be considered in the light of the judgment of the Page 74 of 75 Hon'ble High Court dated 17.10.2013 passed in Writ Petition No.395/2011, hence the only point, which needs to be determined by us as per the said order of the Hon'ble High Court, is as to whether the land i.e. Survey No.43/1A of village Dabolim is a forest land. Considering the above discussion, we are of the view that Survey No.43/1A of village Dabolim is not a forest land.
137. In view of above finding by us, present Original Application is disposed of.
138. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM June 11, 2025 ORIGINAL APPLICATION NO.170 OF 2024 (WZ) npj Page 75 of 75