National Green Tribunal
Mrs Suma R Nayak W/O Raghuveer Nayak ... vs The Ministry For Forest Ecology And ... on 4 December, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 97 of 2016 (SZ)
(Through Video Conference)
IN THE MATTER OF
Mrs. Suma R Nayak
W/o. Raghuveer Nayak Manel
Aged 37 years
Residing at "Mythili", 1st Main, 2nd Cross,
Abbakka Nagar Layout,
Kottara, Mangalore - 575 006.
.... Applicant(s)
Versus
1) The Ministry of Forest, Ecology and Environment,
Office of the Minister of Forest, Ecology and Environment
Government of Karnataka,
Vikas Soudha, Bangalore - 560 001,
Rep. by its Secretary.
2) The Regional Commissioner and Chairman,
Revenue Divisional Level Committee,
High View, Vinoba Road,
Opposite Kalamandir, Mysuru - 570 005.
3) The Deputy Conservator of Forest,
Office of Deputy Conservator of Forest,
Next to RTO Office, Hampankatta,
Mangalore - 575 001.
4) The Deputy Commissioner,
Dakshina Kannada District
State Bank of India Circle,
Mangalore -1.
5) Ministry of Environment, Forests & Climate Change,
Govt of India,
Rep. by its Secretary,
Parayawaran Bhavan,
CCO Complex, Lodhi Road,
New Delhi - 110 003.
(Suo Motu impleaded as per order dated 26.04.2016)
... Respondent(s)
[1]
For Applicant(s): Mr. G. Stanley Hebzon Singh. For Respondent(s): Mr. Darpan K.M. for R1 to R4.
Mr. G.M. Syed Nurullah Sheriff for R5.
Judgment Reserved on: 05th November, 2020. Judgment Pronounced on: 04th December, 2020. CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER Whether the Judgement is allowed to be published on the Internet - Yes/No Whether the Judgement is to be published in the All India NGT Reporter - Yes/No REVISED JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member.
1. The above case has been filed by the applicant against the action of the 2nd respondent in granting permission to the 4th respondent for cutting and removing certain trees from the disputed property. It is alleged in the application that the case was filed, at a time when there was a proposal for New District Government Officers Complex in an extent of 5.89 Acres of land in Survey No.23/6a1b2, 23/4b, 23/12b, 23/6a2b, 23/6b and 23/3 of Padil, Mangalore.
2. It is alleged in the application that the area where the proposed construction is attempted to be made is a deemed forest and authorities were trying to cut and remove the trees without obtaining necessary permission under the Forest Conservation [2] Act, 1980. It was alleged in the application that they proposed to construct a building complex having 2,14,000 Sq.ft. area costing around Rs.41 Crores and it was in the initial stage of construction. When the applicant who is an advocate by profession and also an environmentalist came to know about the proposal, she earlier filed an Original Application as O.A. No.159 of 2015 before this Tribunal seeking for a direction against the 4th respondent herein to stop and abort the project of construction of New District Government Officers Complex in the forest land. In that case, respondents 3 & 4 had contended that the application was not maintainable as it was barred by limitation and also hit by the principle of res-judicata. They had also contended in the counter statement in that case that the present applicant had originally challenged the allotment of the said land for the above said purpose before the Hon'ble High Court of Karnataka by filing Writ Petition as W.P. No.60141 of 2014 and the same was dismissed. Now, she has come with another application before this Tribunal to abort the project with some other unfounded allegations. According to the applicant, on account of cutting of trees, huge environmental degradation would be caused. Earlier, this Tribunal had granted an exparte order dated, 30.09.2015 against the 4th respondent, restraining them from proceeding with the project. Thereafter, after hearing both sides, by Judgment dated 27.01.2016, this Tribunal had disposed of the matter, directing the 3rd respondent to consider the question as to whether it is a deemed forest or not on the basis of the application filed or to be filed by the 3rd respondent and till that was answered they were directed not to cut and [3] remove any trees in the property. The original exparte order passed by the National Green Tribunal was produced as Annexure-(A1) and final order passed by the National Green Tribunal in O.A. No.159/2015 was produced as Annexure-(A2).
3. Now, the applicant has filed this application challenging the Government Order dated 14.11.2014, holding that it is not a deemed forest and the permission granted for cut and removal of trees without obtaining sanction under Section 2 of the Forest Conservation Act, 1980. The Tribunal in various ruling has held that "the State Government has to pass separate orders notifying the diversion of land, and these directions have not been complied with". It is alleged in the application that though the Hon'ble High Court of Karnataka had upheld the Government Order dated 14.11.2014, it did not mean that the power of this Tribunal to go into the question as to whether it is a deemed forest or not as provided under the provision of the National Green Tribunal Act, 2010 and as to whether the construction made by the same is proper or not and as to whether on account of the proposed act, if there is any possibility of environmental degradation likely to be caused. The order was passed on 27.01.2016. But the 4th respondent filed the application on 28.01.2016 before the 3rd respondent seeking permission to cut 386 trees and this application was filed even before getting an order from the Deemed Forest Committee or State Government regarding its approval and this was against the submission made by the 4th respondent before this Tribunal in the earlier proceedings. The applicant had produced Annexure-(B) application dated, 28.01.2016 filed before the 4th respondent [4] and the applicant has filed Annexure-(C) Objection dated, 20.04.2016 as required under the provisions of Karnataka Preservation of Trees Act, 1976. The applicant also filed Annexure-(D), Representation before the Range Forest Officer and Assistant Conservator of Forest as well as to the 3 rd respondent to abide by the order of the National Green Tribunal and await orders of the Deemed Forest Committee in order to consider the application filed by the 4th respondent. The applicant also approached the 3rd respondent and requested to conduct a survey and also submitted Annexure - (E) & (F) representations dated 08.02.2016 for that purpose. But they did not conduct any open survey in the presence of the applicant and they did not consider the objections raised and they prepared Annexure-(G), Survey Report which was not served on her. But she obtained the same on the basis of the application filed by her under Right to Information Act.
4. The details of the survey regarding the extent of building and other areas deducted from the total area were not correct.
Further, total number of trees given and the girth of the trees mentioned were also not correct. On 23.02.2016, the District Level Committee (Deemed Forest Committee) meeting was held and the same was attended by the applicant and it was shared by the 4th respondent in spite of the objection raised by her that he was not competent to decide the issue on the principle "no one can be a judge in his own cause" but over ruling those aspects, they had proceeded and the Minutes of the Meeting held on 23.02.2016 is produced as Annexure-(H). She was given only two days prior notice. Though, she was present in the [5] meeting, she was not properly heard. So, she sent Annexure (I), Letter dated 22.02.2016 to the 3rd respondent and also filed her written objection dated 25.02.2016, which was produced as Annexure-(J), before the District Level Committee (Deemed Forest Committee). Later, the Deemed Forest Committee had come to the conclusion that the land measured only 1.96 ha. and only 386 trees measuring 30 cm gbh and above were present, 66 naturally grown trees and rest 320 trees were planted which according to the applicant were not correct.
5. Further, the applicant had produced Annexure-(K) said to be the plinth area of the building present in the property. The dilapidated sheds surrounded by these trees should not be treated as building for the purpose of exclusion according to the applicant. Subsequently, the District Level Committee had forwarded the recommendations of the 2nd respondent and the 2nd respondent, who is the Chairman of the Revenue Divisional Level Committee conducted the meeting on 29.03.2016 without giving notice to the applicant and confirmed the finding of the District Level Committee and held that the property measuring 5.89 Acres in Survey No. 23/6a1b2, 23/4b, 23/12b, 23/6a2b, 23/6b and 23/3 of Padil, Mangalore was not a deemed forest and the query raised by the applicant in her Right to Information Application had been replied and attempt of the applicant is only to prolong the proceedings and the proceedings of the Regional Commissioner was produced as Annexure-(L) and the letter addressed by the Chief Conservator of Forest to the 1st respondent was produced as Annexure-(M). It was now understood by the applicant from the newspaper article dated [6] 22.04.2016 which was produced as Annexure-(N) that the then Chief Minister of Karnataka had laid down the foundation stone on 21.04.2016. The applicant had conducted a survey through an agency which was produced as Annexure-(P). The applicant also produced the Government Order published on the basis of the Hon'ble Supreme Court's direction regarding the criteria to be considered for considering the question of deemed forest produced as Annexure-(O).
6. As per Annexure-(O), if the following field criteria is considered, then it will understood as a deemed forest in the dictionary sense i.e., (i) All government land parcels (excluding those which are "statutory forests and forest as per Government records) of an area of two hectares and above having at least a density of 50 naturally grown trees per hectare of gbh of 30 cm and above OR..." and if it falls within that definition, then it will be a deemed forest and any improvement can be done in that area, only after getting sanction from the Government under Section 2 of the Forest Conservation Act, 1980. The property originally stood in the name of Karnataka State Industrial Development Corporation (KSIFDC) and they had not complied with the condition of developing a forest land which they had promised to give having an extent of 4.5 Acres in Survey No.38/1A1A situated in Bangrakuluru Grama, Mangalore evidenced by Annexure-(Q). The applicant also relied on Annexure-(R), report given by an expert from the Department of Botany and Zoology of St. Alyosius College and also relied on certain reports produced as Annexure- (S) & (T) and some photographs produced as Annexure-(U).
[7]
7. So, according to the applicant it is a deemed forest as has been held by the Hon'ble Apex Court in T.N. Godavarman's case in W.P. (C) 202 of 1995 dated 12.12.1996, wherein "the State Governments were directed to identify the areas which are "forests", irrespective of whether they are so notified, recognized or belonging to the Government and those belonging to private persons." Since, the same had not been done, the applicant had no other option but to approach this Tribunal seeking the following reliefs:-
i. To declare that the land situated in Survey No. 23/6a1b2, 23/4b, 23/12b, 23/6a2b, 23/6b and 23/3 of Padil, Mangalore housing more than 478 trees is a Deemed Forest land as per criteria fixed by the Government of Karnataka and thereby set aside the order dated 29.03.2016 (Annexure L) passed by respondent No.2, any other consequential order passed by State Level Committee and recommendations made by respondent No.4 dated 23.02.2016 (Annexure H). ii. Direct respondent No.4 to immediately stop and abort the project of construction of new District Govt Officers Complex on forest land bearing Survey No. 23/6a1b2, 23/4b, 23/12b, 23/6a2b, 23/6b and 23/3, Padil, Mangalore totally measuring 5.89 acres, Padil, Mangalore.
iii. To appoint a High Power Expert Committee to independently survey the land and number of trees, type, girth etc. and present the report to the Tribunal.
iv. To direct respondent No.4 to shift the project of New District Govt Officers Complex to alternate land suitable in the city of Mangalore or in the alternate develop the existing D.C. Office situated at State Bank, Hampankatta, Mangalore for the purpose of New District Govt. Officers Complex using the budget amount sanctioned by the State Government of Karnataka.
[8] v. Pass such other orders as may be deemed necessary in the facts and in the circumstances of the case and thus render justice."
8. This Tribunal by order dated 26.04.2016, Suo Motu impleaded the Ministry of Environment, Forests & Climate Change (MoEF&CC) as additional 5th respondent to this proceeding.
9. The 5th respondent/MoEF&CC had filed their counter contending as follows:-
"Reply Affidavit on behalf of the Ministry of Environment, Forests and Climate Change (MoEF&CC), Respondent No.5 I, R. Padmawathe, D/o. G. Ramakrishnan, aged 38 years, resident of Bangalore, do hereby solemnly affirm and state as follows:-
2) That, I am working as Deputy Conservator of Forest (Central) in the office of the Ministry of Environment, Forests & Climate Change (MoEF&CC for short), Government of India, Regional Office (Southern Zone), KendriyaSadan, Koramangala, Bangalore and as such I am well acquainted with the facts and circumstances of the case. I am authorized to file this counter affidavit on behalf of the respondent 5.
3) It is submitted that the Hon‟ble NGT vide order dated 26.04.2016suomotu impleaded Secretary, Ministry of Environment, Forests & Climate Change, New Delhi as 5th respondent in this Application and also directed the Ministry to depute the Chief Conservator of Forests (Central), Bangalore with his team to enable them to inspect the entire area in Survey No. 23/6a1b2, 23/4b, 23/12b, 23/6a2b, 23/6b and 23/3 of Padil, Mangalore and file a report about the nature of trees, type, species girth etc. and the total extent of land and whether the trees are artificial or of natural growth.
4) Accordingly, the site inspection of the area in question was carried out by Additional PCCF (Central) along with Deputy Conservator of Forests (Central) on 17.06.2016. During the inspection, Deputy Commissioner Mangalore, Additional Deputy Commissioner Mangalore, Deputy Conservator of Forests Mangalore, Deputy Director Land Records and the petitioners were present.
5) The duly signed site inspection report is furnished as Annexure-I. Prayer:
[9]
In view of the foregoing submissions, it is most respectfully prayed that this Hon‟ble Tribunal may pass appropriate orders as it may deem fit in the given circumstances of the case."
10. They have also produced the report as directed by this Tribunal as Annexure-1 to the affidavit which can be marked as Annexure R5 (1).
11. The 4th respondent filed counter contending that the application is not maintainable. The applicant had earlier filed a Writ Petition before the Hon'ble High Court of Karnataka challenging the allotment of this land to this respondent and the same was dismissed by the Hon'ble High Court of Karnataka. It was thereafter, the applicant filed Original Application as O.A. No.159/2015 before this Tribunal and this Tribunal, after hearing both sides, passed the final order that the District Administration would take necessary action in accordance with law, for the undertaking of further activity in the impugned premises and after obtaining due permission(s) under law i.e., in respect of felling of trees. It is on that basis the District Administration had taken steps and passed appropriate orders and granted permission and this is now being challenged by the applicant with ulterior motive.
12. The 4th respondent also contended that the area was a private patta land planted with local trees such as arecanut, mango, etc. and it was neither a reserved forest nor a statutory forest as contended by the applicant. Later, this property was purchased by Karnataka State Forest Industrial Corporation for their non- forest activities and it was not a forest land and it was not a land converted for non-forest purpose from the forest land as well. [10] So, when they wanted to have construction of new District Govt. Officers Complex, a portion of land to an extent of 5.89 Acres was transferred to the 4th respondent by the Forest Department and that order was challenged by the applicant before the Hon'ble High Court of Karnataka and the same was dismissed by the Hon'ble High Court. After disposal of O.A. No.159/2015, the Deemed Forest Committee had conducted an enquiry, in which the applicant was also present and made its recommendations to the 2nd respondent, the Regional Commissioner who has to decide on the basis of the recommendation and accordingly, the permission was granted. It is not a declared forest/reserved forest/statutory forest/protected area, and it cannot be treated as a deemed forest as well in view of the T.N. Godavaraman's case as contended by the applicant, the authorities have properly considered all the objections and passed appropriate orders which does not call for any interference and there is no merit in the application and they prayed for dismissal of the application.
13. This Tribunal while admitting the application as per order dated 26.04.2016, directed the respondents 3 &4 to maintain status quo in respect of Survey No. 23/6a1b2, 23/4b, 23/12b, 23/6a2b, 23/6b and 23/3 of Padil, Mangalore having an extent of 5.89 Acres until further orders from the Tribunal which means, no order shall be passed by the authority concerned for cutting and removing trees in that area and demolition of any existing structure until further orders.
14. Further, this Tribunal by that order directed the additional 5th respondent/MoEF&CC to depute somebody from Regional Office, [11] Bangalore, Government of India, with a team to enable them to inspect the area in question and submit details regarding the nature of trees, type of girth and total extent of the land and whether they are artificial and natural growth and directed to submit a report.
15. It is on that basis, the 5th respondent/MoEF&CC had filed a report which reads as follows:-
"Site Inspect report of Addl. PCCF (Central) as per the directions of Hon‟ble NGT, SZ, Chennai dated 26.04.2016 in Application No.97 of 2016 filed by Mrs. Suma R. Nayak.
Introduction:
The Hon‟ble NGT vide order dated 26.04.2016 suomotu impleaded Secretary, Ministry of Environment, Forests & Climate Change, New Delhi as 5th respondent in Application No. 97 of 2016 and also directed the Ministry to depute the Chief Conservator of Forests (Central), Bangalore with his team to enable them to inspect the entire area in Survey No. 23/6a1b2, 23/4b, 23/12b, 23/6a2b, 23/6b and 23/3 of Padil, Mangalore and file a report about the "nature of trees, type, species girth etc. and the total extent of land and whether the trees are artificial or of natural growth".
The site inspection of the area in question was carried out by Addl. PCCF (Central) and DCF (Central) on 17.06.2016. The following officials/ persons were present during the inspection:-
1) Shri. A.B. Ibrahim, IAS, Deputy Commissioner, Dakshina Kannada, Mangalore.
2) Dr. K.T. Hanumanthappa, IFS, Deputy Conservator of Forests, Mangalore.
3) Shri. Kumara, KAS, Assistant Deputy Commissioner, Mangalore.
4) Shri. M.G. Alexander, Regional Manager & Deputy Conservator of Forests, KSFIC, Mangalore.
5) Shri. P. Srinivas, Deputy Director, Land Records, Dakshin Kannada, Mangalore.
6) Smt. Suma R. Nayak, Petitioner.
Brief History of the land use in the area in question The land in question was a private land in Alape Village of Mangalore Taluk and was transferred to Forest Department during 19.10.1963 for establishing a wood preservation plant. The land use during that period was a [12] homestead garden where arecanut, cocoa and banana were cultivated along with Gliricidia, a hedge plant (annexure 1). This was subsequently transferred to Karnataka State Forest Industries Corporation, an institution run by forest department to meet the industrial needs of wood, on 27.03.75 as per the order no. Govt. No.AFFD.202.FDP.73 (annexure II).
The Corporation after taking over the area had constructed many buildings which were used for residential and official purposes. Various Manufacturing and Fabrication units for production of door and window frames were established along with saw ills, wood seasoning plants and storage sheds. Due to lack of raw materials and shortage in staff, the institution was not functioning to its full capacity and slowly became non- operational. This has lead to the dilapidated condition of many sheds and buildings causing trees to grow over them and even inside them. These abandoned buildings were home for many bats and these animals disperse lots of seeds of trees and being a heavy rainfall zone, trees started taking over the land.
The total area under the possession of KSFIC is 10.09 Acres out of which 5.89 acres were transferred to Dy. Commissioner, D.K. Mangalore for construction of the District Officer complex on 14.11.2014 vide Govt. order Appaji-104-FPC.2014 (Annexure III). This was opposed by the petitioners and the National Green Tribunal has asked this office to file a report.
Survey and Enumeration The views of the petitioners were heard and as per their request survey and enumeration works were advised to be carried out in their physical presence and reports communicated. To resolve the issues of the extent of the land and nature of trees, a perambulation of the entire area for various land use like roads and buildings was done by the team and the enumeration of trees standing in the area have been carried out with the help of local forest officials under the supervision of the APCCF(C).
1) The Deputy Director, Land Records, was requested to resurvey the area to ascertain the extent of land as demanded by the petitioner, Suma R. Nayak and the new survey sketch was asked to the submitted to this office. Accordingly, a report along with the sketch was submitted vide Lr. No.01/16-17, DD Land Records, Uttara Kannada, district giving the survey numbers and their respective areas as given below.
Survey No. Area in acres
23/3 2.34
23/4B 0.12
[13]
23/6A2B 0.91
23/6A1B2 0.64
23/6B 1.81
23/12B 0.07
Total 5.89 Acre
Out of these 5.89 Acres, the area occupied by different land use is given below:-
a) Buildings i. Residential : 0.1748 Acres ii. Official : 0.03 Acres iii.Wood working area (Sawmill and sheds for air seasoning) : 0.3275 iv. Security and other sheds: 0.008
b) Drainage for sewage approx. 0.06 ha (not indicated in the sketch) There is a drainage where sewage and rain water flows inside the assigned area and this is totally covered with trees and regeneration is found on the banks of this drainage. The approximate length of the drainage is 400 m and width varies from 1 to 2 meters at various places and completely covered by tree canopy. This sewage does not have any concrete lining and helps in water seepage to provide moisture to the plants around. The seeds that are dispersed by water also lodge in the banks causing good natural regeneration on either side of the drainage.
c) Roads - 0.465 ha.
There is a road on the western side of the area which is used by the public for conveyance to an extent of 0.465 ha. in survey No. 23/4B.
2) The tree enumeration was done in the presence of petitioner and all the trees above 30 cm gbh are considered to be "trees" and the total number of trees and their nature is given below:
a) Number of trees:
The total number of trees in the area is 502. Out of which (i) number of trees grown spontaneously - 94 (ii) Number of trees planted - 408
b) Species composition of Spontaneous growth On examination of the species composition of the spontaneous growth it was found that three species dominate as per Graph 1. (iii) Macrangaindica - 30 (iv) Caryotaurens - 30 (v) AlstoniaScholaris - 13, (vi) GliricidiaSepium -11.
Out of this, the first three species are considered to be "pioneer" species which grow in soils how in Nitrogen content and demand rich sunlight. Their seeds stay in the soil for more than 75 years and regenerates in any tree fall gaps in regions were rainfall in high. Mangalore [14] receives an average of 3700 mm of Rainfall and this is very conducive for tree growth suggesting the growth of such species. Since, the seeds of Gliricidia is existing since 1963, they have regenerated profusely in this area.
The "seedbank" in the soil helps in regeneration if left undisturbed and this has happened in the land in question. This can happen in any part of Western Ghats and Mangalore is no exception. Left to nature, any area will develop into a forest in a high rainfall area especially in Western Ghats where seed dispersers like birds, bats, and insects are found in good abundance apart from environmental dispersal agents like wind and water.
c) Species composition of planted trees:
There are 408 planted trees in the land in question and their species composition is given in Graph 2. The dominant species among planted trees found in this land are: (i) Acacia auriculformis, (ii) Tectonagrandis, (iii) Casuarina equisetifolia, (iv) Peltophorumpterocarpum, (v) Cocos nucifera.
Out of these, Acacia, Casuarina and Peltophorum are exotics, while Cocos nucifera - Coconut is a horticultural crop. The species list along with common names and their nature is given below.
Sl. Tree Species Common Name Nature of Trees
No. Natural Planted
1 Terminalia Catappa Badam - 7
2 Pterocarpus marsupium Bengal Kino - 2
3 Caryotaurens Fishtail Palm 30 -
4 Leucanealeucocephala Subabul - 2
5 Tectona grands Teak - 52
6 Spathodeacampanulata African Tulip - 2
7 Syzygiumcumini Jamun - 2
8 Eucalyptus Eucalyptus - 1
9 Syzygiumjambas Malabar plum - 1
10 Peltophorumdubium Golden carpet - 25
tree
11 Bauhinia spp Camels food tree - 2
12 Alstoniascholaris Devils tree 13 -
13 Bombax ceiba Silk cotton tree - 6
14 DalbergiaLatifolia Rosewood - 7
15 Anona Squamosa Castard Apple - 1
16 Swieteniamahogani Mahogany - 1
17 Mangiferaindica Mango - 5
18 Madariballi - 1 -
19 Crataegusoxyacantha Hawthorn berry - 2
20 ArtocarpusLakoocha Monkey Jack - 3
21 Achrasasoca Sapota - 1
22 Saracaasoca Asoka - 6
23 Sapindusemarginatus Soap nut - 2
24 Caralliaintegerrima Carallia - 1
25 Acacia arculiformes Acacia - 96
26 Haldinacordifolia Haldu - 1
27 Artocarpusheterophyllus Jack fruit tree - 4
28 Ficusglomereta Athi - 4
29 Macaranga indica Macaranga 30 -
30 Tecoma stans Trumpet flower - 1
31 Artocarpusintegrifolia Jack Fruit tree - 14
32 Tamarindusindica Tamarind - 6
33 ArtocarpusHirsuta Aini - 6
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34 Lagerstromia speciose Indian Laburnum - 9
35 Strychesnuxvomica Strychine tree - 3
36 Veteriaindica White dammar - 3
37 Gugeniacaryophyllaca Clove - 1
38 Zanthioxylamrhesta Indian Prickly 1 -
Ash
39 Terminalia paniculate Flowering - 5
Murdah
40 Casuarina equisetifolia Casuarina - 36
41 Ailanthus malabarica Malabar cat mint - 8
42 Gliricidiasepium Gliricidia 11 -
43 Ficusbengalensis Banyan 2 -
44 Anacardiumoccidentale Cashew - 5
45 Borassusflabelifier Palmyra Palm 4 -
46 Cocos nucifera Coconut 1 43
47 Cinnamomumzeylanicum Cinnamon - 2
48 Zizphusoenopila Jackal jujube 1 -
49 Careyaarborea Kumbhi - 6
50 Albiziasaman Rain tree - 24
51 Holigarnaarnottiana Black varnish 1 -
tree
Total 94 408"
16. The applicant had filed objection to that report denying the allegations and reiterating her contentions relying on certain reports and photographs produced as Annexure-(A1) to (A5) to that report.
17. Since, the applicant was not present, when the case was posted for hearing, this Tribunal by order dated 20.12.2017, dismissed the application for non-prosecution. Thereafter, the applicant filed M.A. No.238 of 2017 for restoring the application which was dismissed for default and this Tribunal by order dated 05.11.2020, allowed that restoration application and restore the case to file and heard the matter and thereafter, taken for disposal on the same day.
18. While the restoration application was pending, this Tribunal had constituted a Joint Committee comprising of (i) the District Collector, Mangalore & (ii) Deputy Conservator of Forest, Mangalore to inspect the area in question and submit a status report stating that the status of the plantation and its survival rate and whether all necessary permissions have been granted. [16]
19. It is on that basis, the committee appointed by this Tribunal had submitted the report which reads as follows:-
"Committee report by the Deputy Commissioner, D.K. District, Mangalore and Deputy Conservator of Forest, Mangaluru Division, Mangaluru, Planting of Saplings as against trees cut for construction of District Administrative Complex at Padil of Alape Village in land measuring 5.89 Acres involved in this application.
1) The issue pertains to transfer of 5.89 acres of land in Survey No. 23/6a1b2, 23/4b, 23/12b, 23/6a2b, 23/6b and 23/3 of Alape Village of Mangalore taluk, owned by M/s. Karnataka Forest Industries Corporation Limited, to Deputy Commissioner, Dakshina Kannada for construction of District Office Complex. The transfer is affected as per Govt. order Appaji-104-FPC.2014 dated 14.11.2014.
2) An advocate by name Suma R Naik, filed an application [Application No.159 of 2015 (SZ)] before National Green Tribunal, Southern Zone, Chennai seeking directions for restraining the respondents from cutting trees as the land is deemed forests.
3) The Hon‟ble Tribunal passed an order on 27.01.2016 directing the authorities to consider the classification of land whether it is deemed forest or not as put forth by counsel for applicant along with all other necessary relevant provisions and pass suitable orders there on as required by law.
4) To identify and categorise deemed forests, there is a govt. order No.FEE 185 FAF 2011, Bangalore, Dated 15.05.2014. As per the order, there are three levels of committees. One at District Level headed by the Deputy Commissioner of the district one at Regional level handed by Regional Commissioner and one at State Level headed by Addl. Chief Secretary, Forests, Ecology and Environment.
5) As per the directions of the tribunal, the matter was placed before district committee on 23.02.2016. The committee opined that the land in question does not fall under the category for deemed forests and submitted their opinion to Regional Committee.
6) The regional committee met on 29.03.2016 and deliberated the subject and accepted the opinion of district committee and submitted further to State Level Committee for taking further action in the matter.
7) The State Level committee meeting was convened on 18.05.2016.[17]
The District and Regional Level Committees have replied on following points to opined that the land does not fall in the category of deemed forest.
a) The land in question was acquired by the land acquisition Officer in 19.10.1963 on request of Divisional Forest Officer, Mangalore for establishing wood preservation plant. On verification of the land acquisition records the following trees existed at the time of acquisition.
Sl. Species of the plants Trees No. 1 Cocoa 53 2 Banana 30 3 Drumstic 8 4 Tamarind 2 5 Junglewood 2 6 Firewood Trees 4 7 Papaya 4 8 Cashew 7 9 Teak 2 10 Kasarka 3 11 Mango 37 12 Pongemia 8 13 Glaricidia 82 14 Daddale 4 15 Palm 1 16 Palm 1 17 Jackfruit 15 18 Soap nut 4 19 Arecanut 105 20 Beembuli 2 21 Pumelio 2 22 Custard Apple 1 23 Neem 3
Thus, originally the land was private and it was acquired. Later, as per Govt. Order No. AFFD.202.FDP.73, Bangalore, dated 27.03.1975, the wood preservation plant was transferred from Forest Department to M/s. Karnataka Forest Industries Corporation Limited. Later, as per the Govt. Order No. AHFF.220.FPC87 Bangalore dated 19.11.1990, the vacant land and buildings were also transferred to the Corporation as on equity share of the State. Later, as per Govt. Order Appaji-104-FPC.2014 dated 5.89 acres was transferred to the Deputy Commissioner, Dakshina Kannada, Mangalore for the construction of District Office Complex Building.
b) The land in question is approximately square in shape having compound wall on three sides except the southern side. A public road exists along the north, east & wester sides. Inside the compound wall, there exists an office building, residential quarters, industrial sheet, other small sheds and road connecting these buildings. The total extent of area covered by roads and building is 1.05 acres and out of which 0.60 acres is building area and [18] 0.45 acres is road area. After deducting the road & building area, net area of the said land is 4.84 acres (1.90 Ha only). Thus, the area is less than 2 ha. and it does not fulfil the criteria required for categorising a land as deemed forest. (as per G.O. of 15.05.2014, for an area to be categorized as deemed forests, it should be at least 2 ha.)
c) The land has not been included as deemed forest in the earlier Expert Committee-1 report Deemed Forests.
d) The land is not a notified port.
e) The land does not fall in the category of statutorily recognized forest as provided in the Govt. Order dated 15.05.2014 i.e., Kane, Bane, Kumki and lands reserved under the Karnataka Land Revenue Act, 1964/ Karnataka Land Reforms Act, 1961/ Karnataka Forest Act, 1963.
f) The land does not fall in the category of "Forest as per government records" as provided in Govt. order dated 15.05.2014 i.e., is not recorded as „Forest‟, „Kadu‟, „Mara kadu‟, „Jungle‟ in government records namely, pre 1980 RTC, Forest Working Plan, Survey Settlement Records, District census Guide as forest, Tree forest, Jungle, or "Forest Paramboku" in the Karnataka Revenue Survey Manual.
g) Out of total number of trees (existed in 2016) having more than 30 cm girth at breast height, 66 only are naturally grown, 320 are planted trees along with another 38 coconut trees. The area not only contains forest species, but also commercial crops such as Arecanut, coconut etc. Thus, it cannot be considered as block plantation. As per the government order "only block plantations on government lands can be considered as deemed forest".
h) The proposed land is owned by M/s. Karnataka Forest Industries corporation Limited. The trees existing at present are either the one existed in 1963 or planted by KSFIC. Thus, the plantation has to be considered as "institutional plantation". As per the government order "industrial plantations are to be excluded from categorization as deemed forests". Further, if plantations carried out by industries and institutions are categorized as deemed forests, it would have negative influence on greening of such areas by institutions who may desist from taking up greening.
8) On 18.05.2016, the state level deemed forest committee deliberated on the issue and decided that the land in question is not a deemed forest.
9) The petitioners approached the honourable NGT questioning the decision of the Govt. of Karnataka and [19] filed petition in application No.97/2016 for the second time.
10) Honourable NGT suo-motu made MoEF as a party and directed the APCCF regional office of the MoEF to inspect the spot and submit a report. APCCF (Central) visited the spot and submitted report to the Hon‟ble NGT.
11) The government of Karnataka, the respondents have filed statement of objections on 07.12.2016.
12) This application was dismissed by the Hon‟ble National Green Tribunal on 20.12.2017 as the applicant remains absent and has not engaged a counsel.
13) Further in the meantime the applicant approached the tribunal and filed a M.A. No. 238 of 2017 (SZ) in O.A. No.97 of 2016 (SZ).
14) Hon‟ble National Green Tribunal directed that it is approximate to constitute a committee comprising of (1) District Collector, Mangalore, (2) Deputy Conservator of Forests, Mangaluru to inspect the area in question and submit a status report, stating the status of plantation its survival rate and whether all necessary permissions have been granted, before this Tribunal within a period of three weeks through e-mail.
15) In this connection, it is to inform that felling permission was given for 229 trees out of 666 trees (502 trees which are more than 30 cm. and 164 trees which are below 30 cm.) in Padil DC Office complex area by the Tree Officer & Assistant Conservator of Forests, Mangaluru Sub division Mangaluru.
Further, an amount of Rs.5,07,194/- was collected from the User Agency (Assistant Engineer, KHB, Mangaluru) for Extraction and Afforestation purpose and it was remitted to State Government, under receipts for afforestation budget head.
16) Recently tree officer raised demand for 273 trees to be cut for the said purpose as requested by the User Agency on 19.06.2019. As the User Agency has not paid the amount for raising plantation, felling permission has not been given by the tree officer so far.
17) The construction work of the said building is under progress and there is no space for replanting in the said area. Hence, afforestation is not carried out in this area. In lieu of that about 3000 saplings were planted is various places of Mangaluru City and within the Mangaluru Taluk limit namely, Mangalore University, Konaje, Navodaya Vidyalaya, Pilikula Golf Club etc. under AIOA Scheme (Afforestation in other areas).
18) The performance of these saplings in terms of survival and establishment is good. Photographs of the saplings along with the location and geo-cordinates and CEF [20] (Consent for Establishment), obtained from the Karnataka State Pollution Control Board for construction of the above said building are enclosed herewith."
20. The applicant had filed a detailed objection to the same reiterating her earlier contentions and also contending that details given in the report are not correct.
21. The points that arises for consideration are:-
(i) Whether the disputed site is a deemed forest as claimed by the applicant?
(ii)Whether the impugned orders sought to be set aside by the applicant are liable to be set aside for any of the reasons stated by the applicant?
(iii) Whether the applicant is entitled to get any other reliefs claimed in the application?
Points:-
22. Sri. G. Stanley Hebzon Singh, the learned counsel appearing for the applicant argued that on going through the documents produced by the applicant and also as per the Government Order issued pursuant to the orders of the Hon'ble Supreme Court in T.N. Godavarman's case, the area in question will fall under the category of a deemed forest and without getting sanction from the authorities under Section 2 of the Forest Conservation Act,1980, the 4th respondent is not entitled to proceed with the matter. Further, the reasons given by the authorities are not correct and the report was filed by the beneficiary namely, the 4th respondent. So, it cannot be relied on.
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23. On the other hand, Sri. Darpan, the learned counsel appearing for the State departments argued that the application is not maintainable. Further, earlier allotment of this land to the 4th respondent was challenged by the applicant before the Hon'ble High Court of Karnataka and the same was dismissed, where same contentions were raised. Further, in O.A. No.159/2015 also this Tribunal had not passed any order holding that whether it is deemed forest or not and it was left to the committee to decide and accordingly, the committee after hearing the objections of the applicant passed appropriate orders and only thereafter, they have started their construction after getting necessary permission from the concerned authorities to cut the trees.
24. The learned counsel appearing for the additional 5th respondent/MoEF&CC submitted that they have already submitted their report as directed by this Tribunal.
25. Before going into the question on facts, we feel that it is necessary to refer to the precedents on this aspect as to how the question of deemed forest has to be considered. This aspect has been considered by the Hon'ble Apex Court in T.N. Godavaraman Thirumalpad Vs. Union of India & Ors. reported in 1997 (2) SCC 267 wherein, it has been observed as follows:-
"The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance, and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The work "forest" must be understood according to its dictionary meaning. This description covers all statutorily recognized forests, whether designated as [22] reserved, protected or otherwise for the purpose of Section 2 (i) of the Forest Conservation Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof."
26. Similar question was considered by the Hon'ble Apex Court in Anand Arya & Anr. Vs. Union of India & Ors. and T.N. Godavarman Thirumalpad Vs. Union of India & Ors. reported in 2011 (1) SCC 744, in that case, it was held that "The definition of "forest" howsoever wide relates to a context and cannot be applied absolutely, universally and totally independent of context. Though, man-made forest with passage of time may acquire forest like character and become forest, this rule has no universal application. Planting of trees in agricultural/non-forest land being for the purpose of creating urban park and not for the purpose of afforestation. Such trees being allowed to stand and grow for about 12 to 14years when they are cut down to make the area clear for alleged project on forest land. Said plantation, held, cannot be classified as forest land, nor deemed forest nor forest like area."
27. Further, the decision reported in Chandra Prakash Budakoti Vs. Union of India & Ors., the Hon'ble Apex Court in Civil Appeal No.4452 of 2019 dated 24.10.2019, relying on the decisions reported in T.N. Godavarman Thirumalpad Vs. Union of India & Ors. 1997 (2) SCC 267, M.C. Mehta (Kant Enclave matters) Vs. Union of India 2018 (18) SCC 397 and Kerala State Coastal Zone Management Authority Vs. State of Kerala 2019 (7) SCC 248 and also in NOIDA Memorial Complex Near Okhla Bird Sanctuary, In Re V. 2011 (1) SCC 744 observed that due weight has to be given to revenue [23] records, especially those pertaining to a period when the dispute regarding the land being a forest land did not exist and came to the conclusion that a particular land in Khasra No.605 which was subject matter of the dispute in that case, confirmed the findings of the National Green Tribunal in Principal Bench in O.A. No.626 of 2016 and held that it was not a forest land. With these principles in mind, the case in hand is to be considered.
28. It is an admitted fact that the property in question was originally a private land and it was neither a reserved forest nor a statutory forest nor even recorded as a forest area in the revenue records. It was also an admitted fact that this property having an extent of around 10.09 Acres in these survey numbers was transferred to the forest department during 19.10.1963 for establishing a wood preservation plant. At that time, it was a homestead garden where arecanut, cocoa and banana trees were cultivated along with Gliricidia and thereafter, it was transferred to Karnataka State Forest Industries Corporation, an institution run by the Forest Department to meet the industrial needs of wood as per order No. Govt. No.AFFD.202.FDP.73. They have constructed shed and office buildings and running the industries for some time and thereafter, it has become non- functional and it was kept idle for a long time. When the necessity arose for construction of District Government Officers Complex to accommodate the government offices and shift the existing offices to an out skirt of the city to avoid traffic congestion etc., the Government by order No.Appaji-104- FPC.2014 dated 14.11.2014, decided to transfer 5.89 Acres of land out of this land to the 4th respondent department. The [24] committee constituted by this Tribunal as per order dated 26.04.2016, inspected the area in question and surveyed the land and measured the area having an extent of 5.89 Acres and also noted the number of buildings, road and other structures in the property in the report produced along with the letter dated 20.07.2016 which is marked as Exhibit C1.
29. The report also shows the number of trees, the nature of trees, etc. It will be seen from the report that most of the trees noted therein are planted trees and not natural in origin. Further, as per subsequent order passed by this Tribunal, the committee appointed by this Tribunal had submitted another report dated 11.09.2020 wherein, they have also reiterated the nature of land at the time of original acquisition etc. which is marked as Exhibit C2.
30. So, it will be clear from this, that area is neither a statutory forest / declared forest / protected forest / reserved forest / recorded as a forest land in the revenue records. It was a private patta land where the then owner of the land cultivated some plants. Further, the property was obtained for the purpose of non-forest purpose namely, for starting wood based industries controlled by the forest department and when it has become non-functional, a portion of the property was decided to be transferred to the 4th respondent by the Government for this purpose. Further, the documents produced by the applicant herself as a proceedings of the District Level Committee (Deemed Forest Committee) will go to show that they have considered all the objections raised by the applicant and also the nature of trees and the nature of property which originally stood when the [25] forest department had obtained the same and also they have considered the Government Notification issued in this regard for the purpose of considering the question as to whether the particular area is a deemed forest or not as has been observed by the Hon'ble Apex Court in T.N. Godavarman's case mentioned supra and came to the conclusion that out of the total extent of 5.89 Acres, after deducting the land covered by building and other structures in the property, the actual extent will come to 4.89 Acres which is less than 2 Ha. of continuous forest land, which does not come under the category of deemed forest. Further, it is an institutional plantation which was made by the Karnataka Forest Industrial Development Corporation Limited for their purpose and such plantations were excluded from the purview of the deemed forest even as per the notification issued by the State Government of Karnataka in this regard.
31. It is also seen from the subsequent report submitted by the committee appointed by this Tribunal viz.,report dated 11.09.2020 that for the purpose of granting permission to cut trees for the above said purpose, an amount of Rs.5,07,194/- was collected from the User Agency for extraction and afforestation purpose and this was granted for the purpose of granting permission to cut 229 trees from this property. Later, when the user agency applied for the permission to cut and remove further 273 trees, the tree officer had demanded the value as per their letter dated 19.06.2019 and since the user agency had not paid the amount for raising plantation, felling permission for this purpose has not been granted by the tree [26] officer so far. It is also mentioned in the report that the building construction work is under progress and there is no space for replanting in the said area. So, the afforestation could not be carried out in that area. In lieu of that about 3000 Saplings were planted in various places of Mangaluru City and within the Mangaluru Taluk limit viz., Mangalore University, Konaje, Navodaya Vidyalaya, Pilikula Golf Club etc. under Afforestation in other Areas (AIOA) Scheme. It is also mentioned that the survival rate of those plants planted are also good.
32. So, it is clear from this since it is not a deemed forest as claimed by the applicant, there is no sanction required to be obtained under Section 2 of Forest Conservation Act, 1980 and the reasons given by the authorities for coming to such a conclusion in the impugned order sought to be set aside are also just and reasonable and in tune with the direction given by the Hon'ble Apex Court in the decision reported in referred to above and we don't find any reasons to interfere with the same.
33. Further, the permissions for felling trees were granted on the basis of the application given by the user agency viz., 4th respondent to the tree officer as provided under the Karnataka Preservation of Trees Act, 1976 and only after getting permission from them, the trees were cut. Further, the tree officer had considered the aspect of possibility of re-plantation in the same area and since, they were satisfied that afforestation is not possible in that area, they have decided to plant saplings in other areas as per the scheme mentioned above so as to develop green area in other places in order to compensate the loss of trees in this particular area.
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34. So, under such circumstances, there is no merit in the application and the same is liable to be dismissed.
35. So, the application is disposed of as follows:-
(i) The applicant is not entitled to get any of the reliefs claimed in the application.
(ii)However, we make it clear that being a Government Department, they are directed to create a green belt within the complex as far as possible so as to protect the environment, after completion of the project.
(iii) The Tree Officer is also directed to consider the question as to whether the remaining trees are to be cut and removed and if possible, try to retain as many as trees possible limiting the number of trees to be cut and removed from that area to the minimum extent possible considering such feasibility.
(iv) Considering the circumstances, the parties are directed to bear their respective costs in the application.
36. With the above observations and directions, this application is disposed of.
.................................J.M. (Justice K. Ramakrishnan) .............................E.M. (Shri. Saibal Dasgupta) O.A. No.97/2016, 04th December, 2020. Mn.
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