National Green Tribunal
Joint Forest Management Committee ... vs Principal Secretary on 12 March, 2024
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[Through Physical Hearing (with Hybrid Option)]
ORIGINAL APPLICATION NO. 46 OF 2018 (WZ)
WITH
I.A. NOS.121/2019, 124/2019 AND 91/2022, ALL IN O.A. NO.46/2018
1. Shama Namu Mali, Member
Age : 44 Occu. Farmer
2. Kirti Surajmal Jain, Member,
Age : 59 Occu. Housewife
3. Santra Kiran Jain, Member,
Age : 49 Occu. Housewife
4. Mahaveer Babulal Pande, Member,
Age : 49 Occu. Farmer
All r/o at village Bhilwad, Mangi Tungi,
Tal. Baglan, District Nashik - 423 302 .... Applicants
Versus
01. Principal Secretary,
Revenue & Forest Department (Forests),
Govt. of Maharashtra,
Mantralaya, Mumbai - 411 032
02. Principal Secretary,
Environment Department,
Govt. of Maharashtra,
Mantralaya, Mumbai - 411 032
03. Secretary,
Ministry of Environment, Forest & Climate Change,
Paryavaran Bhavan,
C.G.O. Complex, Lodhi Road,
New Delhi - 110 003
04. Chief Conservator of Forests (Central),
Ministry of Environment, Forest & Climate Change,
Regional Office, Western Region, Bhopal,
E-5, Kendriya Paryavaran Bhawan,
E-5, Arera Colony, Link Road 3,
Bhopal - 462 016
05. Additional Principal Chief Conservator of Forests (C ),
Govt. of India,
Ministry of Environment Forest & Climate Change,
Regional Office (Western Central Zone),
Ground Floor, East Wing,
New Secretariat Building, Civil Lines,
Nagpur - 440 004
[NPJ] Page 1 of 50
06. Principal Chief Conservator of Forests,
Head of Forest Force, Maharashtra,
Vana Bhavan,
Ramgiri Road, Civil Lines,
Nagpur - 440 001
07. Chief Conservator of Forests,
Revenue & Forest Department (Forests),
Govt. of Maharashtra,
Mantralaya, Mumbai - 411 032
08. Chief Conservator of Forests (Territorial),
Aranya Sankul, Ram Ganesh Gadkari Chowk,
Old Mumbai - Agra Road, Mohan Nagar,
Nashik - 422 001
09. Sub-Divisional Forest Officer, Malegaon,
Near Sitabai Hospital, Camp Road,
District Nashik, Malegaon - 423 203
10. Range Forest Officer, Taharabad,
Tal. Baglan, Satana,
District Nashik - 423 302
11. Divisional Commissioner,
Nashik Division,
Govt. Colony, Nashik Road,
Nashik - 422 101
12. District Collector, Nashik,
District Collector Office,
Old Mumbai - Agra Road,
Nashik - 422 002
13. Bhagwan Shri Rushabhdev 108 Ft.,
Vishalkay Digambar Jain Murti
Nirman Committee, through
their Chief Secretary,
Dr. Pannalal Balchand Papdiwal,
Mangi Tungi, Tal. Satana,
District Nashik - 423 302 ....Respondents
APPEARANCE :
Applicants : Mr. Nitin Deshpande, Advocate along with
Mr. Aniruddha Kulkarni, Advocate
Respondents : Mr. D.M. Gupte, Advocate for R-1 and R-3 to R-10
Mr. T.N. Subramaniam, Senior Advocate i/b and along with
Mr. Saurabh Kulkarni, Advocate and Mr. Shreyas Jain,
Advocate for R-13
Ms. Manasi Joshi, Advocate along with Ms. Pooja
Natu, Advocate for MPCB
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
[NPJ] Page 2 of 50
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Reserved on : 29.01.2024
Pronounced on : 12.03.2024
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JUDGMENT
01. This Original Application has been filed with the prayers that all constructions done by respondent No.13 - Bhagwan Shri Rishabhadev 108 Feet Vishalkay Digambar Jain Murti Nirman Committee, in excess during the period 06.05.1999 to 12.02.2018 be treated to be encroachment on forest land at Mangi Tungi resulting in destruction of the ancient Jain caves and temples and degradation of the forest land on hill slopes due to dumping of debris in the form of boulders over the cliff and by constructing the unauthorized road and it should be treated to be illegal and hence, appropriate environmental cost may be recovered from respondent No.13.
02. It is mentioned in the application that Bhilwad is a small village situated in Baglan-Satana Taluka, District Nashik. Mangi Tungi has historical as well as religious significance where many Digambar Jain caves exist in the hill slopes and at the foothills wherein ancient Murtis and idols of various Jain Tirthankars (Monks) have been carved out centuries ago and is also known as Digambar Jain Siddha-kshetra as well. In the year 1996, respondent No.13 i.e. Bhagwan Shri Rishabhadev 108 Feet Vishalkay Digambar Jain Murti Nirman Committee, representing Bhagwan Shri Rishabhadev 108 feet applied for permission to the Government of India for constructing a huge idol of Bhagwan Rushabhdev of 108 feet as a Statue of Ahimsa without applying for environmental clearance. The Government of India, through Chief Conservator of Forests, Western Zone, Bhopal - respondent No.4 gave approval to the proposal for diversion of 0.80 Ha forest land for construction of the said idol with several riders, which are reproduced in the tabular form in paragraph No.17 of the application along [NPJ] Page 3 of 50 with violations committed. For the sake of convenience, the same is reproduced below:
Conditions Status/Violation
(1) Status of the forest The Committee did large scale encroachments on
land should remain the Reserved Forest Land, which was in excess of
unchanged. the initial 0.08 Ha land diversion granted to them.
Change of land use due to encroachments, is
given in further points, which clearly shows that nature of land was changed.
(2) At least 500 Ha. (a) Govt. of Maharashtra according to a GR of the Degraded forest area R & F Dept., bearing no.SLF-1091/cr-119/91/f-
around the project site 11, dated 16/03/1992 came with the idea of
(village Bhilwad) will be formation of Forest Protection Committees to
rehabilitated through protect degraded forests by involvement of local
Joint Forest communities and formation of Forest Protection
Management as Committee.
envisaged in the State
Govt.'s resolution on the (b) The then Forest Protection Committee was
subject. converted into the then Joint Forest Management
Committee vide Govt. of India's GR bearing
no.22.8/2000-JFM(FPD) dated 21/02/2000.
(c) According to the Govt. of Maharashtra's R & F Deptt., issued GR bearing no.
MSC/2000/C.R.143/F-3, dated 25/04/2003 which made registration of the Joint Forest Management Committee mandatory under the Societies Registration Act, 1860.
(d) The then Joint Forest Management Committee which was brought into existence in the year 1999, had no statutory recognition. It ought to have been registered under Societies Registration Act, 1860 and Bombay Public Trust Act, 1950 and registered with the Charity Commissioner, Nashik. Although the then JFM Committee was constituted as per a Govt. Resolution, it ought to have been registered. Without statutory recognition, all actions done by the then JFM committee including preparation and implementation of Micro Plan are null and void.
(Note : Govt. of India, MoEFCC, according to their letter dated 21/ 10/2010 c o n s i d e r i n g t h e Panchayat Act, 1996 gave instructions to States for bringing JFM Committees under the ambit and supervision of Grampanchayats. Accordingly the R & F Dept., Govt. of Maharashtra vide GR no. FDM 2011 / C. No. 100 / F2 dated 05/ 10/2011, made away with the mand ator y reg is tr ation of JFM under the Co-operative Societies Act, 1860 with the Charity Commissioner. But before that registration was mandatory.)
(e) T he then JFM Co mmitte e me mber s [NPJ] Page 4 of 50 should haveconsisted only Local villagers, who are res iden ts of th at v ill age h av in g r igh t to vo te in the ir resp ec tive loc al cons tituenc y, along with Fore s t Dep t of f ic ials and the Co mmitte e. No o u ts iders could h ave bee n brough t as me mb ers .
(f ) T he Fores t Dep t. alo ng wi th the Co mmitte e brou gh t in ou ts id ers as me mb ers of th e then JFM Co mmitte e b y mak ing the m me mb ers of the JFM Co mmitte e. Dr. P ann al al ji P apd i wal, Ch ief Secre tar y of the Responden t no. 13, wa s ne ither res iden t of vill age Bh il wad no r an y wh ere f ro m N ash ik D is tr ic t .
(g) Dr. Papdiwal was an outsider, who was made Vice-President of the then JFM Committee and consequently participated in formation and implementation of the Micro Plan. He abused that position, by acting in dual capacity, one by being Vice-President of the then JFM Committee and other being Chief Secretary of the Committee, Respondent No.13.
(h) The then JFM Committee never consisted of local villagers. For the sake of formality, their signatures were obtained on paper, but Dr. Papdiwal, acting in dual capacity, blatantly abused & dominated the decisions of the then JFM Committee.
(i ) For all the con s truc tion wh ich was be ing u n d e r tak e n b y th e C o mmi tte e in e x c e s s of th e 0 . 8 0 H a l a n d g r a n t e d t o t h e m, D r . P a p d i w a l , being the Vice President of the thenJFM Committee, tried to sho w that it has the implied consent of the then JFM Committee, Whereas, the then JFM Committee had not accorded any such consent. For all the illegal encroach ments, road construction in excess of 0.80 Ha, destruction of tr ees and f orest l and, the then JFM Co mmitt ee held Dr.Papdiwal responsible and he was removed by the resolution of the then J F M Committee vide their letter dated 28/02/2008.
(j) In the rehabilitation of 500 Ha area, the th e n JF M Co mmitte e, the For es t Dep t.
an d th e Committee was supposed to undertake plantation d r i v e s o n t h e s a i d area. T ill date, there is no effective plantation undertaken by any of them.
In a span of roughly 20 years, a thick forest cover should have dev eloped by n o w. T i l l d a t e t h e a r e a l o o k s a r i d a n d barren. There is hardly any vegetation in that area. By not doing so, all of [NPJ] Page 5 of 50 them have caused serious breach of this important condition.
(k) Rather than causing rehabilitation of the area, the Committee has caused massive environmental degradation. While carving out the giant Murti from the hill, the Committee caused blasting of the rock which caused massive multiple fractures to the fabric of the rock exposing it to further factors of deterioration.
(l) T he Co mmittee was supp osed to tr anspor t the blasted stones and boulders saf ely by trucks to d e s ig n a te d s i te f o r s c ie n t if ic d is p o s al . B u t in s te a d , th e y d u mp e d th e s to n e s an d b o u l d e r s of f th e c l if f in to th e v al l e y to r u n h ap h az ar d l y o n th e h il l s l o p e s , th e r e b y d e s tr u c t in g th e tr e e s an d s h r u b s o n th e f o r e s t l an d , p o s in g d an g e r to h u man s an d an i m al s .
(m) Those loose boulders and stones have caused huge destruction of hectares of Forest Land rendering it permanently degraded resulting into massive environmental destruction and degradation.
Google satellite images clearly show the dumped boulders on the hill slopes which has destroyed huge area of hectares of Reserved Forest land. Copy of Google images and photos is attached herewith as Annexure A/1 (Colly).
(n) While going uphill, en route, there are roughly 3000 steps which wind up through the hill, leading till the Murti. At the bottom of the hill as well as en route, there are many caves in which Murtis and idols of various Jain Tirthankars have been carved, centuries ago.
(o) The loose boulders dumped in the carving out work, have run down haphazardly, destructing some of the shrines in the ancient caves, which are important archaeological historical sites, contributing to overall environmental degradation.
(3) Micro Plan for the As s t a te d above, th e th e n JFM rehabilitation works will C o m mi t te e ' s l e g a l s t a t u s an d c o mp o s i t i o n be responsibilities to be wa s il l e g al , v o id - ab - in i t i o & u n au th o r iz e d discharged by the three an d wa s c o mp r o m i s e d b y D r . P a p d i wa l ' s agencies namely the r o l e in d u al c ap ac i t y . D u e to t h a t , th e Trust, the Forest t a s k o f p r e p ar a t i o n an d i mp l e m e n t a t i o n Protection Committee of of M ic r o P l an wa s a s h a m. E x tr e me l y the village and the minimal wo r k wa s c ar r ie d out for Forest Dept. Payment n a me s ak e b y t h e C o m m i t t e e , t h e th e n [NPJ] Page 6 of 50 schedule, flow of funds J F M C o m m i t t e e an d th e F o r e s t D e p t . etc. will also be specified W o r k d o n e an d mo n e y s p e n t o n p ap e r is in the plan. a m a jo r e y e wa s h . T h e au th o r s of th e s t a te me n ts s h o win g mo n e y d e p o s i t e d b y th e C o m m i t t e e wi t h t h e F o r e s t D e p t ar e th e y th e ms e l v e s . If n o p l an t a t io n g r o wt h e x is ts , th e n th e y c an e x p l a in b e t t e r as to wh e r e e x ac tl y t h e mo n e y wa s s p e n t an d h o w m a n y tr e e s h av e g r o wn as r e s u l t of th e s a id s p e n t m o n e y .
(4) Trust will promote (a ) T h e T r u st a . k .a. t h e C o m m i t t e e h as u t t e r l y awareness among the f a i l e d i n d oi n g t hi s . T h e C o m m i t t e e r a t h e r t h a n devotees for the p r o m o t i n g d e v e l op m e n t a n d p r ot e c t i o n of development and f o r e s t s, h a s i n st e ad c o n t r i b ut e d t o d eg r a d a t i o n protection of forests.
o f F o r e st a n d e n v i r o n m e n t b y l et t i n g l o o s e t h e s t o n e s a n d b o u l d e rs t o r u n d ow n hi l l a n d d oi n g l a r g e s c a l e i l l e g a l en c r o a c h m e n s o n F or e s t L a n d a n d b y c o n st r u c t i ng u n a u t h o r i z e d r o ad l e a d i ng t o t h e M u rt i .
(b ) Wh i l e d o i n g c o n s t r u ct i o n o f M u rt i a n d t h e u n a u t h or i z e d ro a d , t h e C o m m i t t e e w a s s u p p o s e d t o t r an s p o rt t h e bl a s t e d st o n e s an d b o u l d e r s safely by trucks to designated site for its d i s p o sa l . B u t i ns t ea d , t h e y t h r e w t h e st o n e s a n d b o u l d e r s t o r u n h ap h a z a r dl y o n t h e hi l l s l o p e s , t h e r e b y d e s t r u c t i ng t h e t r e e s a nd sh r ub s o n t h e f o r e s t l a nd , p o s i ng d a n g e r t o h u m a n s a n d a n i m a l s, d e s t r u ct i ng t h e s h r i n e s i n t he a n c i e n t c a v e s w h i c h a r e i m p o rt a n t a r c ha e o l o g i c al h i s t or i c a l s i t e s , e n r o u t e t h e s t e p s l e ad i n g u p t o t h e M u r t i o n t h e h i l l t op a n d ha s c o nt r i b u t e d t o o v e r a l l e n v i ro n m e n t a l d e g r a da t i on .
(9) The forest land shall (a) Purpose specified was for construction of Murti not be used for any and temple. But the Committee in addition to the purpose other than that carving out of the Murti has even caused illegal specified in the project encroachment on Forest land at the foothills. This proposal. area is in total excess of the original 0.80 Ha area granted to them for Murti carving. There is no record of this excess use of Forest Land, no revenue or forest surveys, no mapping no demarcation exercises in official records.
(b) During February 2016, Maha-Mastak Abhishek was proposed to be performed by the Committee. For that from the year 2014, the Committee started encroaching the Forest land at the foothills.
(c) They initially constructed tin sheds for the labour. Later on they did fix construction in brick and cement with tin roofs and came up with 14-15 rooms. The said rooms, during the Maha Mastak Abhishek were given to devotees. After complaints were raised by the Applicants for the use, temporarily they were closed. But later on the said rooms are now used as residence of labour and as [NPJ] Page 7 of 50 storage.
(d) Construction of Murti started in 2002 and was completed around 2014. Construction was done by blasting of the hill rock and the idol was carved out from that rock. From the year 2002, for movement of trucks, heavy machinery pockland machines, dumpers to transport the blasted rock in form of huge boulders and stones etc., the Committee did massive hill cutting and chopped down hundereds of trees on the said hill area and constructed a kachha road leading till the Murti Site.
(e) The forest area on which the road came up, by hill cutting and tree cutting, was never admeasured. That area was in excess of 0.80 Ha of Forest land which was diverted for Murti Construction. There was no official survey conducted by the R & F Dept. (F) to admeasure that area, no mapping, no demarcation exercise. There is no record to show the extent of Forest area which has been destructed and encroached upon.
(f) Road was specifically constructed to transport the blasted rocks and boulders. But instead of transporting the same and scientific disposal of it, they simply dumped that stone off the cliff in the valley, haphazardly, which rolled down over hectares of Forest land, crushing lakhs of trees, shrubs, natural vegetation in their path causing massive Forest Destruction. Even today, blasting and hill cutting is going on indiscriminately and the blasted out rock is being dumped the same off the cliff in the valley. Forest destruction and degradation is going on, on daily basis.
(g) So stone blasted out at the Murti site as well as in the hill cutting in the making of road was dumped of the cliff destructing huge area of the Reserved Forest.
(h) The Committee wanted to conduct the Maha-
Mastak-Abhishek ceremony in February 2016. For that they were in requirement of constructing road, water pipeline, water tank, electricity poles parking etc. (utilities). Accordingly the Committee made application to the Gram panchayat Bhilwad for grant of permission for the utilities. Considering the importance of the religious ceremony and in good faith, believing that the Committee won't abuse the permission granted by Grampanchayat, the Grampanchayat vide their resolution dated 14/12/2015, gave the permission for utilities and to use that road only for temporary purpose for transportation of trucks and even on the condition that the said road should be stopped after that use and plantation of trees should be done on the same.
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(i) The Committee not only imposed restrictions on the use of that road, but whereas started illegal taxi service by charging visitors and pilgrims and allowed only Committee vehicles to ply on that road.
(j) There were agitations staged by the Applicants and villagers for closure of the road which was closed by the Forest Dept. temporarily but re- opened for the ceremony of Maha-Maastak-
Abhishek. Even after the said ceremony
concluded, the road is still in use.
(k) The Committee never officially obtained
permission from any Respondent Govt. Authorities, before construction and use of the road.
(l) The road is in use from 2002, but whereas the permission for the road was formally granted much later, as recent as February 2018, by the Govt. of Maharashtra vide their order dated 12/02/2018 bearing Government Order No.FLD-1516/c.r.15/f-10, passed by Respondent no.7, Chief Conservator of Forests, R &F Dept., Mantralaya, Mumbai - 400 032.
A copy of the Govt. of Maharashtra's order dated 12/02/2018 bearing Government Order No.FLD- 1516/C.R.15/F-10 is marked and annexed as Annexure A/2.
The said permission is a composite permission for construction of road, electric and water pipeline, parking shed, murti platform, etc. For the same, an additional area of 2.73 Ha of Reserved Forest land has been diverted in favour of the Committee.
03. In the above tabular form, in column No.2 the various non- compliances/violations by the Project Proponent (respondent No.13) have been clearly stated, which amounts to contempt of the directions of the Government of India, which has led to massive forest environmental degradation. It is difficult to say exactly which area falls under 0.80 Ha. Neither the Committee nor the Revenue and Forest (R&F) Department have any revenue records of the degraded/destructed area in hill-slopes due to dumped boulders nor that of the encroachments. No measurement and mapping sheets existed of the same.
04. We also find mention in this application that the Government of Maharashtra, Revenue and Forest Department, vide Govt. Resolution dated 16.03.1992, had taken a decision to protect degraded and denuded forests [NPJ] Page 9 of 50 in the State by local communities at village level by formation of a Joint Forest Management Committee. We also find that initially the members of this Committee, who were 18 in number, had filed the present Original Application, but later on, all of them had withdrawn except the four, which are present applicants in the amended Original Application dated 15.10.2022, who are pursuing this matter in their individual capacity and not as members of the said Committee.
05. This Committee of respondent No.13 had planned Mahamastak Abhishek ceremony in February, 2016 for which they needed additional forest land of around 2.73 Ha for electric and water pipeline, parking shed, Murti platform, etc. (facilities) and construction of road. Hence, the Committee put up a fresh proposal to the State Government in December, 2015 after obtaining permission from Grampanchayat, Bhilwad on 14.12.2015. The CCF, R & F Department, respondent No.7, vide their letter dated 27.01.2016, made recommendation to the Additional PCCF (C), MoEF&CC Regional Office, Nagpur for diversion of land for that purpose. In addition to the other facilities, permission was also sought for construction of road, which already existed and was being used by the Committee since the time Murti work began in the year 2002. Normally, before undertaking construction of a project, prior permission is sought, but in this case, it was sought when already work had been started. The PCCF, Head of Forest Force, Maharashtra State, Nagpur - respondent No.6 made specific recommendation with regard to acceptance of the proposal vide their letter dated 01.01.2016, especially observing therein that no felling of trees would be involved in implementation of this project and accordingly, the same was recommended with following conditions:
"(i) Legal status of the land required would remain unchanged;
(ii) Forest land shall not be used for any purpose other than specified in the project;
(iii) User Agency, Trust will promote awareness among the devotees for the development and protection of forests."[NPJ] Page 10 of 50
These conditions were similar to the one which were put by the Government of India in their letter dated 06.05.1999 while sanctioning diversion of 0.80 Ha land for Murti construction. These conditions were seriously violated as explained in the above tabular form.
06. It is mentioned in the application that the Committee, in the wake of constructing the idol/Murti overlooked the safety of the centuries old Jain caves at the foothills, which were not only archeologically important, but were of historical importance being common national heritage. Surprisingly, the Committee in its own application declared that there was no protected archeological heritage site or any protected monument in the area. These centuries old Jain caves were damaged/destroyed because of the rolling down of boulders of the hill slopes. A reference is also made in this Original Application of Expert Report of Dr. Anita Rane - Kothare regarding the risk involved due to mountain cutting and damage caused to ancient caves wherein it was mentioned that the hill was made of basalt with other impurities and dykes, which make mountain weak and susceptible to damage and weathering. With the use of marble tiles and cementing, lot of damage and weathering due to salt content in cement will be caused, which would eventually lead to destruction of the caves. In that report, critical observation is also made regarding dumping of debris (blasted rock, boulders and stones) which have been dumped on the south-western side of the hill, which can result in the land slide over the Sadbuddhi caves. The findings of this Expert Report appear to have been cited by the applicant with a view to convince this Tribunal as to the seriousness of the situation that the boulders might role down to cause landslide leading to loss of life, etc., but no cognizance of this has been taken by the authorities who granted permission for this purpose.
07. Further it is submitted that the second important certificate issued by the office of the Sub Divisional Forest Officer, Malegaon relates to commencement of work. Diversion of 2.73 Ha forest land was for facilities [NPJ] Page 11 of 50 and for construction of road. The said certificate dated 17.12.2015 certifies that work of providing facilities has not started in forest land as well as non- forest land and that no violation of Forest Conservation Act, 1980 nor any forest offence was committed and that the work in forest land would start after permission from the Government of India. But the Sub-Divisional Forest Officer grossly overlooked that the same was a fake certificate as far as the construction of road was concerned as the road construction had commenced and was over as the same was in use for nearly twelve years. At that time, no permission was sought by the Committee nor any such permission was given by his office in the past. The said road was in excess of 0.80 Ha of forest land which was sanctioned long back in the year 1999. Therefore, the road was built unauthorizedly without any formal permission by encroaching upon the forest land, cutting down hill and hundreds of trees. The R & F Department never exactly measured and identified those 0.80 Ha of forest land, nor any mapping and sheets existed in the revenue record showing the exact boundaries of the said land. It was blatant misuse of the Forest Conservation Act, 1980. This certificate is nothing but regularization-in-disguise of the illegally encroached road on forest land, which was in use since 2002.
08. It is further mentioned that the third certificate dated 17.12.2015 speaks of no cutting and felling of trees. The office of Sub-Divisional Forest Officer certainly has kept no record of the trees which have been felled by the Committee in construction of road which got damaged due to dumping of boulders and stones, which rolled down from the cliff and destroyed large forest land. Despite this malfeasance on the part of the Committee, respondent No.7, vide their letter dated 27.01.2016 recommended to Additional PCCF - respondent No.5 for diversion of 2.73 Ha forest land and requested to place the matter before Govt. of India for approval. The Committee as well as R & F Department knew that in the wake of ensuing Mahamastak Abhishek ceremony, lakhs of pilgrims would visit who would be [NPJ] Page 12 of 50 needing water and electricity provision at the Murti site, and looking to the fact that getting final permission would take lot of time, yet R & F Department applied for its permission to the Central Government, so for the aforesaid ceremony, R & F Department laid water pipe lines and electricity supply lines upto Murti site without taking any prior environmental clearance. It is emphasized that till February, 2016, no permission was granted as the same was granted on 12.02.2018 by the R & F Department, but yet the local R & F Department made provision of water pipeline and electricity supply poles on the forest land providing funds from the State and the said water pipeline was removed and electricity supply was disconnected after the ceremony was over. So, this was encroachment by the R & F Department on forest land without prior permission either from the Govt. of India or the State Government. It is further submitted that though the temporary facilities, stated above, were removed by the R & F Department, but it did not take any decision about illegal road which was in use nor any decision was taken regarding encroachment near the Murti and at the foothills.
09. It is further mentioned that respondent No.5 - MoEF&CC, on 04.03.2016, rejected the proposal given by the State Government (appears to be the proposal related to 2.73 Ha forest land to be used for road, pipeline and electricity supply poles, Murti platform, etc.), citing provisions under para 4.5 (ii) of Chapter 4 of the Handbook of Forest Conservation Act, 1980. The said provision states that Central Government will not entertain any proposal for diversion of forest land for construction of residential or dwelling houses. Upon rejection of the said proposal, the Committee respondent No.13 made certain changes in their earlier proposal in the list of facilities to be provided, which were to be covered under 2.73 Ha forest land demand, did not include Dhyan-Dharana Kuties. It only finds mention in the revised proposal. Thereafter, the CCF, R & F Department - respondent No.7 made a request on 07.06.2016 to respondent No.5 - MoEF&CC, Regional Office for [NPJ] Page 13 of 50 re-opening of the proposal, stating that the same had been modified by the user Agency i.e. the Committee - respondent No.13. Vide letter dated 15.07.2016, MoEF&CC - respondent No.5 communicated it to respondent No.1 - Principal Secretary, R & F Department and re-opened the proposal on various conditions. Out of total area of 0.80 Ha accorded earlier on 06.05.1999, an area of 0.2 Ha was approved for link road connecting the main road. The MoEF&CC - respondent No.5 sought explanation behind rationale for proposing additional area for construction of road in the fresh proposal vide point (iii) of the letter.
10. Further it is mentioned that after the Mahamastak Abhishek ceremony was over in 2016, it was expected that respondent No.13 Committee will stop using the unauthorized road, without any formal permission and remove the encroachments within sometime. The CCF, R & F Department - respondent No.7 recommended to the Additional PCCF - respondent No.5 for diversion of 2.73 Ha forest land by his letter dated 27.01.2016. The MoEF&CC initially rejected the proposal on 04.03.2016, but later gave conditional approval on 15.07.2016.
11. Further it is mentioned that seeing the continued usage of the unauthorized road and increasing encroachments, the blatant violation of the terms and conditions of the permission granted by the Grampanchayat dated 14.12.2015, environmental degradation, forest destruction, debris dumping of the huge boulders off the cliff in the valley, illegal encroachments, unauthorized use of the road, the Joint Forest Management Committee (JFMC) made an application to the Range Forest Officer (RFO), Taharabad on 28.10.2016, asking them to take action against the illegal encroachments and usage of unauthorized road, but to no avail. Respondent No. 8 - CCF (Territorial), Nashik, instead of taking action against illegal encroachments and unauthorized road, submitted replies vide letter dated 14.02.2017 to the information sought by respondent No.5 - MoEF&CC. The applicant has gathered the relevant points on which the [NPJ] Page 14 of 50 information was sought by the MoEF&CC and has noted against the same the status/violation in the tabular form, which is reproduced as below:
Point/Information Status/violation
sought by MoEFCC
3. As per approval (a) There seems to be some confusion at the
accorded for an area of end of MoEFCC. They confused the link road, a
0.80 Ha, an area of 0.2 Ha footpath (pagdandi) with the proposed Project
was proposed for link road road. The CCF(T), Nashik has clarified footpath
connecting the main road. (pagdandi) is not part of new proposed road
Rationale for proposing which is meant for vehicles. Project road is
additional area for entirely different.
construction of road, along
with its cross sectional (b) But what the Ld. CCF(T) Nashik didn't
map showing the row may clarify to MoEFCC is that the so called proposed
be submitted. road is not actually proposed, but it already
exists since the year 2002. The said road was
constructed on forest land by the Committee,
unauthorisedly, without obtaining any formal permission from R & F Dept., by creating encroachments on forest land, by cutting the hill and the trees standing on it.
(c) Initial accord of 0.80 Ha forest land was only for construction of Murti. That road was constructed in addition to the 0.80 Ha of forest land. There is no official records showing this illegal encroachment. No survey was conducted by the R & F Deptt.(F) of that area, no demarcation, no mapping.
(d) The said road was constructed for movement of trucks, heavy machinery, dumpers to transport the blasted stones and boulders safely to designated site for its disposal. But instead, they threw the stones and boulders to run haphazardly on the hill slopes, thereby destructing the trees and shrubs on the forest land, posing danger to humans and animals, destructing the shrines in the ancient caves, which are important archaeological historical sites, en route the steps leading upto the Murti on the hill top and has contributed to overall environmemntal degradation.
(e) The road was built for movement of trucks and dumpers, whereas rather than transport of the blasted rock, it was dumped off the cliff haphazardly. Not a single boulder from the Murti Construction and the one cut during construction of road has been transported to a scientific disposal site, but has been haphazardly dumped off the cliff.
5. Comments of the State (a) The CCF(T) refers to the road as proposed, Govt. on possibility of whereas as explained above it already exists.
shifting the areas
proposed for parking into (b) He further clarifies that the proposed
the non-forest land may road is for the old pilgrims, visitors who cannot
be submitted. climb the hilly road or the old steps. But the Ld.
[NPJ] Page 15 of 50
CCF (T) fails to clarify that the Committee not only is using that road, but has imposed restrictions on the use of that road by others, and is already operating illegal taxi service by charging visitors and pilgrims and allowing only Committee vehicles to ply on that road.
7. Status of compliance Blatant violations of those conditions have been of conditions stipulated in already explained before in Para 17 of this the State-II of approval petition, so not reproduced here to avoid dated 06/05/1999 may repetition.
be intimated by the State Govt.
9. Suggestive plan/ (a) The CCF(T) and the R & F Dept.(F) at all scheme or measure by levels have utterly failed in keeping check and the State Govt. to check removing the encroachments in the forest area pressure/ encroachment of village Bhilwad.
in the adjoining forest
area. (b) The Committee has indulged into
massive illegal encroachments on the forest
land at village Bhilwad, Mangi Tungi. They have already been explained in detail in para 17, explanation to condition no.9 of the Govt. of India's letter dated 06/05/1999, hence not reproduced to avoid repetition.
(c) There is ample evidence to show those encroachments and destruction of forest land by the activities of the Committee against which the present applicant has been complaining to the R & F Deptt since they were formed in the year 2015. But the R & F Dept(F) is not taking any cognizance of the same and the encroachments are thriving.
12. A reference is made in this application of the MoEF's letter dated 05.07.2017 whereby certain conditions were imposed on the Project Proponent. Important conditions along with status/violations have been reproduced hereunder :
Condition Status/Violation
(i) Legal status of the The Committee had already done large scale
diverted forest land shall encroachments on the reserved forest land,
remain unchanged which was in excess of the initial 0.08 Ha land
diversion granted to them. It has already been explained in detail in para 17 table.
Looking at that, had the State R & F Dept.(F) by doing true and complete compliance by communicating the said encroachments to the Govt. of India, this stage of they granting in- principle approval of further 2.73 Ha of forest land to the Committee might not have materialized. The State Govt. is in serious contempt of the Govt. of India's directions dated 06/05/1999 and 15/07/2016.
[NPJ] Page 16 of 50
(xi) No labour camp shall (a) Labour camps exist on the hill near the be established on the Murti as well as on the foothills. forest land.
(b) During February 2016, Mahamastak-
Abhishek was proposed to be performed by the Committee. For that, from the year 2014, the Committee started encroaching the forest land at the foothills.
(c) They initially constructed tin sheds for the labour. Later on they did fix construction in brick and cement with tin roofs and came up with 14-15 rooms. The said rooms, during the Mahamastak-Abhishek were given to devotees. After complaints were raised by the applicants for their use, temporarily they were closed. But later on the said rooms were now used as residence for labour and as storage.
(xii) Construction of (a) Fixed construction in the form of brick, house or other dwelling stones and cement exists at the foothills. structures shall not be It used as Labour residence, storage, allowed in the area being Committee office and for other purposes. diverted. This is the encroached area, which is in excess of 0.80 Ha forest land granted previously by the letter dated 06/05/1999.
(b) 0.80 Ha was never admeasured, earmarked by survey and demarcation exercise. No maps and sheets exactly identify its location.
(c) It is assumed that these fixed construction will come under the 2.73 Ha. So encroachment in the form of house or other dwelling structure already exists even before diversion of land.
(xiii) The State Govt. shall To this condition, the Sub-DFO, Malegaon, submit a plan for the Respondent No.9 has submitted a protection protection of nearby forest plan. The same is not followed at all.
from likely encroachment
in near future due to (a) No regular patrolling in and around forest
increased influx of area is being done.
pilgrims in the near future
due to increased influx of (b) Encroachments are still done by the
pilgrims and tourist in the Committee on daily basis. They are doing
area. hill cutting near the Murti. Photos of
present hill cutting, Annexure A/25.
(c) RFO, Taharabad is not inspecting the area
at all.
(xiv) The State Govt. shall (a) Road is no way proposed or a future
ensure that local possibility. It is seen in existence since the
villagers, if they desire time Murti construction, very much in
so, may use the proposed possession and usage of the Committee.
road of the User Agency This shows that the State R & F Dept.(F)
without any impediment. has not communicated the ground reality
An undertaking to this to the Central Govt.
effect shall be obtained
[NPJ] Page 17 of 50
from the User Agency and (b) The Committee has very much imposed
the same should be restrictions on the common usage of the
submitted along with the road, inspite of the Grampanchayat urging
compliance report. them not to do so by their various
resolutions.
(c) The Committee is operating illegal taxi service on that road by charging visitors and pilgrims and allows only Committee vehicles to ply on that road.
(d) This road is in excess of the 0.80 Ha of the previous forest land diverted exclusively only for Murti construction. This road has never found mention in any official records maintained by the R & F Dept.(F). This road was never admeasured, no survey and demarcation exercise, no mapping, no sheets exist showing this road.
(e ) The State R & F Dept. (F) vide their G.R. dated 12/02/2018 are doing regularization in disguise of this encroachment which is existing since the Murti construction began.
(xix) The forest land shall Explanation to this point has already been given not be used for any other in detail under para 17, point 9 of the Govt of purpose other than that Indian's letter dated 06/05/1999, not specified in the proposal. reproduced again to avoid repetition.
(xxi) No damage to the (a) State R & Dept. has not communicated the
flora and fauna of the true and complete facts about the
adjoining area shall be encroachments and the forest destruction
caused. caused by the Committee.
(b) The Committee by doing the unauthorized
road by hill cutting and tree cutting has cut
down hundreds of trees.
(c) While doing Murti works and even while
construction of the unauthorized road, there was blasting and hill cutting involved. After the blasting, the blasted and cut rock and boulders were thrown off the cliff haphazardly thereby causing major forest tree destruction. A lot of greenery has been destroyed. There is no record available with the R & F Dept. (F) as to the exact number of trees which were destroyed and illegally cut.
(d) By not taking action at the time of tree destruction and cutting, and by not having maintained a record of the same, the R & F Dept(F) have caused serious violation of the Forest Conservation Act, 1980.
(xxii) No felling of trees Felling of trees is a continuous and unabated shall be done during the activity undertaken by the Committee. The R & F [NPJ] Page 18 of 50 implementation of the Dept.(F) has utterly failed to keep any check on project. it. The applicants fear that after getting authorization from the State Govt. on 12/02/2018, more trees on a large scale are likely to be affected, hence they are preferring this present petition.
The Committee and the R & F Dept.(F) has already not complied with condition 2 of the Govt. of India's letter dated 06/05/1999, regarding rehabilitation of 500 Ha of forest land by doing plantation as explained in detail in para 17(2) of this petition.
13. A reference is also made of the violations of the terms and conditions which were laid down by the Government of India in their letter dated 05.07.2017 and those violations are enumerated as below:
"a) Condition no.1, the legal status of land will remain unchanged.
(Condition has been seriously violated as explained before in para 17 (1) and 51(i) of this petition) Copy of the undertaking is marked and annexed as Annexure A/28.
b) Condition no.XI, no labour camp will be established on forest land.
(Condition has been seriously violated as explained before in para 51 (xi) of this Petition.) Copy of the undertaking is marked and annexed as Annexure A/29.
c) Condition no.XII, no construction of house of other dwelling structures will be done on project area.
(Condition has been seriously violated as explained before in para 51(xii) Copy of the undertaking is marked and annexed as Annexure A/30.
d) Condition no.XIII, the State Govt. shall submit a plan for the protection of nearby forest fro likely encroachment in near future due to increased influx of pilgrims in the near future due to increased influx of pilgrims in the near future due to increased influx of pilgrims and tourist in the area. (Condition is being seriously violated as explained before n para 51 (xiii)] Copy of the Protection Plan as submitted by the Sub-DFO, Malegaon is marked and annexed as Annexure A/31.
e) Condition no.XIV, local villagers will be allowed to use this proposed road, if they desire without any impediment.
[NPJ] Page 19 of 50 (Condition has been seriously violated as explained before in para 51
(xiv)] Copy of the undertaking is marked and annexed as Anneuxre A/32
f) Condition no.XIX, forest land will not be used any other purpose other than that specified to the proposal.
[Condition has been seriously violated as explained before in para 17(9) & 51 (xix)] Copy of the undertaking is marked and annexed as Annexure A/33.
g) Condition no.XXI, no damage to the flora and fauna of the adjoining area will be caused.
(Condition has been seriously violated as explained before in para 51(xxi)] Copy of the undertaking is marked and annexed as Annexure A/34."
14. With above pleadings, the prayers mentioned above have been made by the applicants.
15. This application was first heard on 09.07.2018 when directions were issued to serve summons on the respondents.
16. Respondent No.13 - Project Proponent has submitted its reply- affidavit dated 29.05.2021, wherein it is submitted that this Tribunal cannot determine title and rights in respect of disrupted land, the same being beyond jurisdiction. The application is time barred because it is alleged that the answering respondent has encroached upon the forest land since 06.05.1999. Therefore, cause of action first arose in 1999 and from that year, within six months, this application has not been filed. Relating to cause of action, It is stated by the applicants that the same arose when the MoEF, vide their letter dated 02.02.2018, gave their approval to the Principal Secretary, R & F Dept. (F), Govt. of Maharashtra for diversion of 2.73 Ha of forest land to respondent No.13 Committee, which is blatantly an attempt to mislead this Tribunal. It is mentioned that in Windsor Realty Pvt.Ltd.vs. Ministry of Environment and Forest (Writ Petition No.594 of 2015), the Hon'ble Bombay High Court has held that the concept of `continuous cause of action', which the applicants appear to be pressing here, does not apply to [NPJ] Page 20 of 50 the complaints which are filed before the NGT because had it been so, the legislature would not have stated so and therefore, limitation would be six months from the date when the cause of action of such dispute first arose. In the present case, the cause of action first arose in 1999 when the permission dated 06.05.1999 was granted by the Govt. of India to respondent No.13 Committee to carve the Murti. The carving of Murti began in the year 2002, which has been stated by the applicants themselves in their application and have also stated that the alleged degradation of forest including alleged tree cutting began from the year 2002. It is stated by the applicants that the alleged illegal encroachment in the form of building a road, the same was in use since 2002. Therefore, the applicants had enough opportunity since 2002 to raise the objections. More so, they were residents of the same village i.e. Bhilwad, Mangi Tungi. Therefore, they cannot be held to be not aware of the carving of Murti. Prior to commencement of the NGT Act, 2010, approval for diversion of forest land to non-forest use under Section 2 of the Forest Conservation Act given by the MoEF had to be challenged before the Central Empowerment Committee (CEC), constituted by the Central Government, which is a statutory body as contemplated by Section 3 of the Environment (Protection) Act, 1986. The answering respondent received approval from MoEF dated 02.02.2018 regarding diversion of 2.73 Ha of reserved forest for construction of road, electric and water pipeline and parking shed, which has not been challenged till date. Having not done so, now raising the said issue appears to be time barred and hence, this application should be dismissed on this count alone.
17. It further mentioned by the answering respondent that even the provision under Section 15 of the NGT Act is not tenable against the answering respondent as the said provision talks of relief, compensation and restitution. The defense of respondent No.13 is that the project is yet to commence as no construction of whatsoever kind has been commenced at the site. Hence, there was no violation of the statutory permissions. It is [NPJ] Page 21 of 50 only after completion of the Murti and the popularity of the Mahamastak Abhishek ceremony in the year 2016, the applicants started making illegal demands. As per the applicants' admission, for the first time they raised allegations against the answering respondents on 28.10.2016. Hence the application is time barred. Further it is submitted that in the year 2015, the answering respondent made a proposal/application to the Gram Panchayat (not a party to the present Original Application) for water tank, water pipeline, roads, rooting electric pole and parking, etc. Many of the applicants themselves participated and gave consent to the said application, which is annexed as Annexure-R-1. Pursuant to this application, the Gram Sabha held a meeting on 14.12.2015 and passed resolution stating inter alia that there are no claims to the forest land sought to be diverted by respondent No.13. Since there was no objection to the said land, Gram Sabha sanctioned permission to build the abovesaid facilities. This resolution was recommended by applicant No.18 of the Original Application i.e. Mr. Mahaveer Babulal Pande and affirmed by applicant No.1 i.e. Mr. Pandharinath Bhika Thakare, who is current President of the Joint Forest Management Committee (JFMC). A copy of the said resolution is annexed as Annexure-A/40. It is further mentioned that the applicants were not only aware of the proposal of the answering respondent for road, water tank, water pipeline, roads, rooting electric pole and parking, but gave their consent way back in the year 2015. Therefore, they cannot be treated to be unknown under category `aggrieved persons'. The answering respondent has all the requisite permissions and approvals which have not been challenged before any appropriate authority. The alleged destruction of the ancient Jain caves is not an environmental issue. Therefore, the same is not covered under any of the first schedule of the NGT Act. There was no Environmental Clearance required for the project of respondent No.13 to carve a Murti, which does not fall in any of the provisions under EIA Notification, 1994. No illegal encroachment or unauthorized road [NPJ] Page 22 of 50 construction has been done by cutting trees, nor the nature of the land has been changed resulting in environmental degradation. Such allegations are found baseless. Further it is mentioned that all the caves are located on the hill except Sadbuddhi cave which is located at around 250 steps from the base of the bill. Challenge to the Govt. Resolution dated 06.05.1999 is barred by limitation and the same cannot be challenged at belated stage. The point-wise allegations and the violations and current status in that regard have been given in paragraph No.34 by the answering respondent in tabular form as follows:
Condition Status
(1) Status of the forest It is denied that Respondent No.13 did large scale
land should remain encroachments on the Reserved Forest Land, which
unchanged was in excess of the initial 0.80 Ha land diversion
granted to it as alleged or at all. It is denied that the nature of land was changed as alleged or at all. On the contrary, in an on-site inspection by the Sub Divisional Officer, Malegaon, Dist. Nashik done in pursuance and in compliance of the order and directions given by this Hon'ble Tribunal dated 9th July 2018 (Hereinafter referred to as "the on-site inspection"), it was observed that the area occupied by Respondent No.13 is 0.787 Ha which is less than its entitlement of 0.80 Ha. This is also shown in the GPS Map annexed thereto.
(2) At least 500 Ha. It is pertinent to note that the Applicants have not Degraded forest area shown any actual non-compliance of this condition. around the project site In fact, the aforesaid mentioned Sub Division Forest (village Bhilwad) will be Officer's Report pursuant to on-site inspection done rehabilitated through by the Sub Divisional Officer, Malegaon, Dist. Joint Forest Management Nashik done, observed that area of 340.83 Ha was as envisaged in the State planted at 10 places, i.e. 10 plantations, at least. Government's resolution The status of the plantation is such that there is on on the subject. an average 80% survival rate with all plants over 2 ft in height and some over 6 ft. In addition to the aforesaid, soil and moisture conservation works were also undertaken. Details are as follows:
- 10 Ha Deep continuous contour trenches
- 75 Ha continuous contour trenches
- 79.57 Ha + 2325 cubic meter loose boulders
structures
- 11 earthen dams
It is submitted that Respondent Committee has been engaged in plantation time and again. One such occasion was also documented in a newspaper article. Hereto annexed and marked as "ANNEXURE R-6-colly" are also several pictures of plantation carried out in presence of forest officials. [NPJ] Page 23 of 50 In reply to point (f), it is denied that Dr. Pannalalji Papdiwal, the then Chief Secretary of Respondent No.13 was neither a resident of village Bhilwad nor anywhere from Nashik District as alleged. It is submitted that Dr. Pannalalji Papdiwal is a resident of village Bhilwad and has been staying in the said village with his family, to undertake the carving of the Murti from 1996 to 2016.
Respondent No.13 craves leave to refer to and rely upon the relevant documents indicating that Dr. Papdiwal was residing in village Bhilwad such as electricity bill, bank account, etc. In reply to point (g), it is denied that Dr. Papdiwal was an outsider as alleged. It is denied that he abused his position, by acting in dual capacity as alleged or at all.
In reply to point (h), it is denied that the then JFM Committee never consisted of local villagers as alleged. It is denied that, for the sake of formality, their signatures were obtained on paper, but Dr. Papdiwal, acting in dual capacity, blatantly abused & dominated the decisions of the then JFM Committee as alleged or at all.
In reply to point (i), it is denied that any construction was being undertaken by the Committee in excess of 0.80 Ha land granted to them as alleged or at all. Therefore, the Applicant's contention of any implied consent of the then JFM Committee is false and lacks basis. It is denied that the then JFM Committee held Dr. Papdiwal responsible for any illegality or that he was removed by the then JFM Committee as alleged or at all. Respondent No.13 denies the existence of any resolution of the then JFM Committee and puts the present Applicant to strict proof thereof. In reply to point (j), it is denied that till date, there has been no effective plantation undertaken by any of us or that there is any breach of the said condition as alleged or at all. The Applicant has no other proof apart from its baseless assumption that thick forest cover should have developed without taking into consideration the surrounding terrain, soil and conditions.
In reply to point (k), it is denied that the Committee has caused environmental degradation as alleged or at all. It is denied that while carving the Murti, the Committee caused blasting of the rock which caused massive multiple fractures to the fabric of the rock exposing it to further factors of deterioration as alleged. It is submitted that the said Murti is a single monolithic structure and blasting would have jeopardized the monolithic structure, therefore Respondent No.13 used scientific techniques without blasting.
[NPJ] Page 24 of 50
In reply to point (1), it is denied that the Committee was supposed to transport the stones or boulders. It is submitted that as per the conditions of GR dated 06/05/1999, Respondent No.13 cannot take any forest-produce be it stones or boulders from the forest land as it would amount to repurposing/changing the use of the forest land. This would have amounted to violation of the GR dated 06/05/1999. It is denied that the stones and boulders were dumped off the cliff haphazardly on the hill slopes such that trees or shrubs were destroyed or harmed in any way as alleged or at all. It is submitted that the 2.73 Ha diverted to Respondent No. 13 is a natural forest trail as is recorded in various official documents as `nature trail'. The said trail was improved upon by the Forest Department from time to time. The estimates prepared by RFO Taharabad for improvement of the said "road" refers to it as nature trail in at Sr No. "5/2" to the On-site inspection report. Even the approval given to the said estimates in 2016 refers to the said "road" as nature trail. It is pertinent to note that in absence of a pakka road to transport or any permission to transport or any mention of designated site, the Applicants contention is baseless and lacking substance.
In reply to point (m), it is denied that those loose boulders and stones have caused destruction of forest land rendering it permanently degraded as alleged or at all. It is denied that the Google satellite images show any destruction of Reserved forest land as alleged or at all.
In reply to point (n), it is clarified that except for one cave called Sudbuddhi cave at approximately 250 steps of the 3000 steps, all other caves are at the hill top. The Applicants are merely attempting to portray an incorrect image and mislead this Hon'ble Tribunal.
In reply to point (o), it is denied that loose boulders were dumped in the carving, or that they have run down haphazardly, or that some of the shrines are destroyed. It is submitted that the said caves are at a distance from the Murti and it is impossible for any stone to have reached the said cave. Devotees come to see the Murti as well as the caves. Because of the malafide nature of the Application, the Respondent apprehends that the said cave is in danger from the Applicants. (3) Microplan for the Micro plan of JFM Bhilwad was sanctioned by rehabilitation works will committee presided by the Chief Conservator of be revised indicating Forest (T) Nashik on 21/08/2009 and the other clearly the responsibilities members present were CCF working plan, CCF to be discharged by the wildlife, Sub DFO Malegaon, President of Forest three agencies namely Protection Committee Bhilwad, Secretary Forest [NPJ] Page 25 of 50 the Trust, Forest Protection Bhilwad. The aforesaid is recorded by Protection Committee of the Sub Divisional Officer, Malegaon in his the village and the Forest compliance report at page 69 of the present Department. The payment Application.
schedule, flow of funds, etc. will also be specified. In reply to paragraph 17(3), it is denied that the then JFM Committee's legal status was illegal, void ab initio or unauthorized and was compromised in any way as alleged or at all. It is denied that the task of preparation and implementation of Micro Plan was a sham. It is submitted that this allegation is baseless, without substance and false. (4) Trust will promote It is submitted that the trust has installed sign awareness among the boards for pilgrims and tourists. It is submitted devotees for the that Respondent No.13 has been actively planting development and trees. ON one such occasion, the Committee protection of forests. participated in the Campaign launched by Govt. of Maharashtra on 1st July 2016 to plant 2 crore plants and in furtherance thereof, planted 2000 seedlings in Bhilwad forest area. Environment day was organized by the Respondent No.13 for the purposes of aforesaid awareness, a picture of which is annexed hereto and marked as "ANNEXURE R-7". The aforesaid compliance is recorded by the Sub Divisional Officer, Malegaon in his compliance report at page 72 of the Application. In reply to point (a), it is denied that Respondent No.13 failed in promoting awareness for development and protection of forests as alleged or at all.
In reply to point (b), it is denied that any unauthorized road was constructed as alleged or at all. It is pertinent to note that in absence of a pakka road to transport or any permission to transport or any mention of designated site, the Applicants contention that the Committee was supposed to transport any stones or boulders through a nature trail is baseless and lacking substance. It is denied that the stones or boulders were thrown haphazardly on the hill slopes such that trees or shrubs were destroyed or harmed in any way as alleged or at all. It is denied that there is any danger to any human or animal or shrine as alleged or all.
(5) The forest land shall In reply to point (a), it is denied that Respondent not be used for any other No.13 has caused any illegal encroachment on purpose other than that forest land at the foothills as alleged or at all. On specified in the project the contrary, it is submitted that the area occupied proposal. by Respondent No.13 is 0.787 Ha which is less than its entitlement of 0.80 Ha. This is shown in the Sub Division Forest Officer's Report and the GPS Map annexed thereto.
In reply to point (b), it is denied that the Committee encroached forest land from 2014 as alleged or at all.
In reply to point (c), it is denied that any rooms [NPJ] Page 26 of 50 were constructed as alleged or at all. On the contrary, no labour camp or 14-15 rooms were found to be constructed during the on-site inspection conducted by the Sub Divisional Officer, Malegaon, Dist. Nashik.
In reply to point (d), it is denied that there was blasting involved in the construction of the Murti as alleged. It is submitted that the said Murti is a single monolithic structure and blasting would have jeopardized the monolithic structure, therefore Respondent No. 13 used a scientific technique without blasting. It is denied that the Committee did massive hill cutting and chopped trees on the hill and constructed a kachha road for movement of trucks, heavy machinery, pockland machines, dumpers to transport the rocks in the form of boulders and stones as alleged or at all. It is submitted that even today no truck or heavy machinery or dumpers can reach the Murti. It is also submitted that this is completely contradictory to their contention that the boulders/stones were not transported. This shows that the Applicants are merely fabricating allegations to push their ulterior motives.
In reply to point (e), it is denied that the road was never admeasured as alleged or at all. It is denied that any area in excess of 0.80 was diverted for Murti construction. It is denied that there was no official survey conducted by the R & F Dept. (F) to admeasure or that no mapping, no demarcation exercise was done as alleged. It is submitted that the demarcation and mapping of the said 0.80 Ha was done by the authorities.
The contents of point (f) is denied in toto. It is submitted that in absence of a pakka road to transport or any permission to transport or any mention of designated site, the Applicants contention that the Committee was supposed to transport any stones or boulders through a nature trail is baseless and lacking substance. As explained earlier, Respondent No.13 never used blasting. Moreover, the Murti was completed in 2016 and therefore, it is denied that any activity is undertaken being done even today or on daily basis as alleged or at all. It is submitted that the said allegation is merely an attempt made by the Applicants to mislead and overcome the bar of limitation.
In reply to point (h), it is submitted that pursuant to an Application made by Respondent No. 13, Gram Sabha meeting was called on 14/12/2015 wherein a resolution was passed inter alia stating that there are no claims to the forest land sought to be diverted by Respondent No. 13. Since there was no objection to the said land, the Sabha sanctioned the permission to build water tank, water pipeline, [NPJ] Page 27 of 50 roads, rooting electric pole and parking, etc. It is pertinent to note that the said resolution was recommended by Applicant No.18, Mr. Mahaveer Babulal Pande and affirmed by Applicant No. 1, Mr.Pandharinath Bhika Thakare, who is currently the President of the Joint Forest Management (JFM) Committee. A copy of the said resolution dated 14/12/2015 is attached at Annexure A/40 at page 216-218 of the Application. The said document does not reveal any conditions as contended by the Applicants herein.
In reply to point (i), it is denied that the Committee imposed restrictions on the use of that road or started illegal taxi service.
In reply to point (j), (k) and (l), it is denied that Respondent No.13 constructed any road as alleged or at all or that the said road is in use from 2002 as alleged. It is submitted that the 2.73 Ha diverted by Respondent No.13 is a natural forest trail as is recorded in various official documents as `nature trail'. The said trail was improved upon by the Forest Department from time to time. The estimates prepared by RFO Taharabad for improvement of the said "road" refers to it as nature trail in at Sr.No."5/2" to the On-site inspection report. Even the approval given to the said estimates in 2016 refers to the said "road" as nature trail.
18. The demarcation and mapping of said 0.80 H was done by the authorities, which is countersigned by the Deputy Conservator of Forests., which is annexed at Annexure-R-8. In the site inspection made by the Sub- Divisional Officer, Malegaon, District Nashik, in compliance of this Tribunal's order dated 09.07.2018, it was observed that the area occupied by respondent No.13 is 0.787 Ha which is less than its entitlement of 0.80 Ha. The allegation that the road which was already existing was used by respondent No.13 Committee since the time Murti work began in the year 2002, is denied, rather 2.73 Ha diverted by the answering respondent is a natural forest trail as is recorded in various official documents as `natural trail', which was improved by the Forest Department from time to time. The estimates prepared by RFO, Taharabad for improvement of the said road refers to it as nature trail at Sr.No.5/2. In the On-site inspection report submitted by the Sub-Divisional Officer, Malegaon, even the approval given [NPJ] Page 28 of 50 to the said estimates in 2016 refers to the said road as nature trail. It is also denied that the permissions were sought retrospectively as alleged by the applicants. It is also denied that any boulders rolled down haphazardly or had destroyed parts of any cave at the foothills as alleged. It is denied that the boulders pose a threat to the cave. The applicants never made representation to any competent authority in respect of these areas. There is no cave located within 2.73 Ha area proposed to be diverted for construction of road, electric and water pipeline, parking shed, murti platform, etc. It is also mentioned that Dr. Anita Rane-Kothare, who is Head and Associate Professor, Department of Ancient Indian Culture and not a Professor of Geology, could not have made observation regarding landslides or such phenomenon. It is denied that any road construction was made in excess of 0.80 Ha of forest land nor did the answering respondent built any unauthorized road or did any encroachment on the forest land by cutting down hill or trees as alleged.
19. All the allegations made by the applicants in paragraph No.46 of the application given in tabular form relate to the earlier permission dated 06.05.1999 and hence it appears to be an attempt made by the applicants to mislead this Tribunal so as to overcome the bar of limitation and the allegations which have been leveled in that paragraph in tabular form with regard to violations are answered as follows:
Point/Information Status
sought
3. As per Approval The contents of point (a) are true and correct.
accorded for an area of
0.80 Ha was approved
for link road connecting
the main road. Rationale In reply to point (b), it is denied that the alleged
for proposing additional "road" was already existing and was used by the
area for construction of Committee since the time Murti works began in
road, along with its cross- year 2002 as alleged. It is submitted that the 2.73
sectional map showing Ha diverted by Respondent No. 13 is a natural
the Row may be forest trail as is recorded in various official
submitted. documents as `nature trail'. The said trail was
improved upon by the Forest Department from time to time. The estimates prepared by RFO Taharabad for improvement of the said "road"
refers to it as nature trail in at Sr No. "5/2" to the [NPJ] Page 29 of 50 On-site inspection report by the Sub Divisional Officer, Malegaon, Dist. Nashik. Even the approval given to the said estimates in 2016 refers to the said "road" as nature trail. It is denied that any permissions were sought retrospectively as alleged or at all.
In reply to point (c), it is denied that 0.80 Ha of forest land was only for construction of Murti as alleged. It is denied that any road was constructed in excess of 0.80 Ha. It is denied that there was no official survey conducted by the R & F Dept. (F) to admeasure that area, or that no mapping, no demarcation exercise was conducted as alleged. It is submitted that the demarcation and mapping of the said 0.80 Ha was done by the authorities.
The said map clearly shows 0.60 Ha allotted to the Murti and 0.20 Ha for the approach path from the old steps leading to the Mangi Tungi temples. The contents of point (d) and (e) are denied in toto. It is submitted that the said Murti is a single monolithic structure and blasting would have jeopardized the monolithic structure, therefore Respondent No. 13 used a scientific technique without blasting. It is denied that the Committee did massive hill cutting and chopped trees on the hill and/or constructed a kachha road for movement of trucks, heavy machinery pockland machines, dumpers to transport the rocks in the form of boulders and stones as alleged or at all. It is submitted that even today no truck or heavy machinery or dumpers can reach the Murti.
It is submitted that in absence of a pakka
road to transport or any permission to
transport or any mention of designated
site, the Applicants contention that the
Committee was supposed to transport any stones or bouldersis baseless and lacking substance.
5. Comments of the State In reply to point (a) and (b), it is denied that the Govt. on possibility of proposed road is already in existence as alleged or shifting the area at all.
proposed for parking into the non-forest land may be submitted.
6. Status of compliance of In reply, it is denied that Respondent No.13 has conditions stipulated in violated any conditions stipulated in the approval the Stage II approval dated 06.05.1999 as alleged. The Respondent dated 06.05.1999 may herein has dealt with paragraph 17 at paragraph be intimated by the State 34 hereinabove.
Govt.
[NPJ] Page 30 of 50
9. Suggestive In reply to point (a), it is submitted that the plan/scheme or measure averments herein are not directed at Respondent by the State Govt. to No.13 and cannot comment on the same.
check pressure/
encroachment in the In reply to point (b), the Respondent reiterates
adjoining forest area. paragraph 30 hereinabove and denies that the
Committee has indulged in any encroachment as alleged or at all.
In reply to point (c), it is denied that there is any evidence to show any encroachment or destruction of forest land by the Committee as alleged or at all.
20. According to the answering respondent, it (Respondent No.13 Committee) has abided by the conditions of rehabilitation and plantation on 500 Ha land according to the grant given. With respect to the allegations made in paragraph no.55 of the Original Application, it is submitted by the answering respondent that the letter of Govt. of India, MoEF dated 05.07.2017 is in relation to 2.73 Ha area proposed to be diverted for construction of road, electric and water pipeline, parking shed, Murti platform, etc., while the allegations made therein relate to the earlier permission dated 06.05.1999. However, the allegations made in tabular form in the said paragraph by the applicants are responded by the answering respondent by way of following table:
Condition Status
(i) Legal status of the diverted It is denied that Respondent No.13 did large forest land shall remain scale encroachments on the Reserved Forest unchanged. Land, which was in excess of the initial 0.08 Ha land diversion granted to it as alleged or at all. Respondent herein has dealt with paragraph 17 at paragraph 34 hereinabove.
(xi) No labour camp shall be The contents of points (a), (b) and (c ) are established on the forest false and denied in toto. In fact, during the land. on-site inspection conducted by the Sub Divisional Officer, Malegaon, Dist. Naashik, no labour camp or 14-15 rooms were found to be constructed as alleged.
(xii) Construction of house or It is submitted that none of the averments other dwelling structures relate to the 2.73 area being diverted. shall not be allowed in the area being diverted. In reply to paragraph (a), it is denied that there is any fixed construction at foothills on account of Respondent No.13 or encroachment as alleged or at all.
The contents of paragraph (b) are denied in toto. The Respondent herein repeats and [NPJ] Page 31 of 50 reiterates paragraph 34 of the present Reply. In reply to paragraph (c ), it is submitted that the application is based on assumptions and surmises all of which are false and unfounded.
(xiii) The State Govt. shall In reply to the same, it is submitted that the
submit a plan for the averments herein are not directed at
protection of nearby forests Respondent No.13 and cannot comment on
from the likely encroachment the same.
in near future due to
increased influx of pilgrims
and tourists in the area.
(xiv) The State Govt. shall The contents of points (a) to (e ) are falase
ensure that local villagers, if and denied in toto. The averments made
they desire so, may use the herein are merely repetition of the earlier
proposed road of the User averments in the Application. It is denied
Agency without any that the proposed road is already in existence
impediment. An undertaking as alleged or at all. It is denied that the
to this effect shall be Committee imposed restrictions on the use of
obtained from the User that road or started illegal taxi service. It is
Agency and the same should denied that Respondent No.13 did any
be submitted along with encroachment in excess of 0.80 Ha land
compliance report. diversion granted to it as alleged or at all. It
is denied that there was no official survey or
mapping or demarcation exercise of 0.80 Ha
was done as alleged. It is submitted that the
demarcation and mapping of the said 0.80
Ha was done by the authorities.
(xix) The forests land shall The Respondent herein has dealt with
not be used for any other paragraph 17, point 9 at paragraph 34, point
purpose other than that 9 hereinabove.
specified in the proposal.
(xxi) No damage to the flora In reply to point (a) and (d), it is submitted
and fauna of the adjoining that the averments herein are not directed at
area shall be caused. Respondent No.13 and cannot comment on
the same.
In reply to point (b) and (c), it is denied that
the Committee did any unauthorized road
construction done by cutting hill or tree as
alleged or at all. It is denied that there was
blasting involved in the construction of the
Murti as alleged. It is submitted that the said Murti is a single monolithic structure and blasting would have jeopardized the monolithic structure, therefore Respondent No. 13 used a scientific technique without blasting. It is denied that any sort of greenery has been destroyed as alleged or at all.
(xxii) No felling of trees shall It is submitted that the Respondent No.13 be done during the has not even started implementing the implementation of the project. project. It is further submitted that in absence of any evidence as to felling of any tree, the present Application is misconceived and baseless. It is submitted that the Applicants are trying to clutch at straws in an attempt to mislead and overcome the bar of limitation. It is denied that Respondent No. [NPJ] Page 32 of 50 13 has violated any conditions stipulated in the approval dated 06.05.1999 as alleged.
The Respondent herein repeats and
reiterates averments made in paragraph 34
hereinabove.
21. It is also denied that any road was constructed in excess of 0.80 Ha and it is also denied that demarcation and mapping of the said area was not done by the authorities. The said map clearly shows 0.60 Ha allotted to the Murti and 0.20 Ha for the approach path from the old steps leading to the Mangi Tungi temples. Therefore, the allegation of making encroachment or destruction of the forest land, tree cutting, hill cutting, blasting and/or degradation is false.
22. Respondent No.9 - Sub Divisional Forest Officer, Malegaon has filed an affidavit dated 09.08.2018, wherein it is recorded that he carried out inspection of the site in question along with R.F.O., Taharabad, wherein it was then found that as per letter dated 06.05.1999, the forest land of 0.80 Ha of village Bhilwad was diverted for construction of temple and Digambar Jain Murti and as per letter dated 02.02.2018 of the Govt. of India, reserve forest land admeasuring 2.73 Ha was diverted for construction of road, electric and water pipeline, parking shed, murti platform, etc. On the said land, the name of Forest Department was recorded as owner in 7/12 extract. The demarcation was made of area 2.73 Ha sanctioned by the Govt. of India vide order dated 02.02.2018, by the Forest Department by using RCC boundary pillars, but there is no demarcation found in 0.80 Ha area, but the GPS measurement of the area occupied by respondent No.13 Committee as measured on 01.08.2018 is 0.787 Ha. A temporary kaccha road is/was leading from foothill to top and on perusal of record, it was found in January, 2011 that the RFO, Taharabad had prepared an estimate for improvement of approach road to Swami Rishabh Dev at Mangi Tungi, Bhilwad for an amount of Rs.9,99,000, which was submitted before the District Collector through the answering respondent for release of funds and an amount of Rs.10,00,000 was released for the said work. Accordingly, the [NPJ] Page 33 of 50 RFO, Taharabad had done improvement of the approach road during the months of February and March, 2011 and spent an amount of Rs.8,80,000. Later on, the Govt. of Maharashtra, vide letter dated 20.01.2016, accorded temporary approval for using natural pathway (alleged road) and temporary washrooms, etc. for Maha Mastak Abhishek ceremony, as per the guidelines of the Govt. of India dated 07.10.2014. The said letter is annexed at Exhibit- E-1. The RFO, Taharabad prepared an estimate for improvement of approach road to Swami Rishabh Dev at Mangi Tungi, Bhilwad for which the Collector released Rs.24,63,434 for the improvement of the road and Rs.10,83,000 was spent for that purpose. The related evidence is annexed at Exhibit-E2 and E-3. Therefore, it is revealed that the said estimate was administratively sanctioned by the Govt. of Maharashtra vide letter dated 04.01.2016.
23. According to respondent No.9, in the said inspection report, it is also recorded that at the foothill and open space, there was no construction found , but in area of 0.557 Ha, it was observed that fence by tin sheets was there and it had pakka construction with open area. The said area was found in abandoned condition. The encroachment of 1.022 Ha was done by Chandrashekhar Shantilal Kasliwal (not party to the present proceeding), against whom chargesheet was filed before the J.M.F.C., Satana on 21.04.2016 for encroaching the forest land. Further it is mentioned that the local villagers acquired 0.0029 Ha for tea stalls and an area of 0.0134 Ha was acquired by Shri Siddhakshetra, Mangi Tungi Digambar Jain Devasthan, old trust since long (different trust).
24. It is further mentioned that the boulders of carving of Jain Murti from the hill were found in eastern and western sides to the extent that in eastern side, area of 3.719 Ha and on the western side in an area of 3.591 Ha . Total area was 7.310 Ha boulders were lying which was measured by GPS. The evidence recorded in that regard is annexed at Exhibit-G-1 and G-2. [NPJ] Page 34 of 50 These boulders were found to have been derived from carving of murti from the sanctioned area of 0.80 Ha.
25. Further it is mentioned in the inspection report that 14 to 15 rooms were found constructed as alleged in the Original Application, which was for labour camp, but did not find any labour camp.
26. It is mentioned that during the Maha Masatak Abhishek ceremony, the Govt. of Maharashtra had given temporary permission vide letter dated 20.01.2016 as per the guidelines of Govt. of India dated 07.10.2014 for electric and water supply and for usage of natural pathway. For the same construction, Gramsabha, Bhilwad had also granted permission through resolution dated 14.12.2015. Further it is mentioned that an area of 340.83 Ha was planted at 10 places i.e. 10 plantations and related evidence in the form of photographs is annexed at Exhibit-I-1 to I-11.
27. This affidavit of the Forest Department makes it clear that the allegation of the applicants that respondent No.13 had exceeded the construction beyond 0.80 Ha, which was granted on 06.05.1999 for construction of Murti (idol) of Digambar Jain, as road was constructed by them also because they made approach road, does not stand vindicated by this affidavit as it is made clear by the Forest Department that for the purpose of Maha Maastak Abhishek ceremony, the Government had released funds for temporary facilities of road, electric and water pipeline, parking shed, murti platform, etc, to be provided to the pilgrims, which was temporary in nature and therefore, these constructions cannot be attributed to respondent No.13 Committee.
28. While considering the matter on 05.09.2022, we had directed constitution of a Joint Committee with a direction to it to visit the spot and submit report before us with respect to the factual situation of the spot and whether any destruction to the environment/forest has happened, which may be attributable to respondent No.13 and also evaluation of the compensation amount for any damage caused to the environment. Pursuant [NPJ] Page 35 of 50 to the said order, the Joint Committee report has been filed, which is undated, annexed at pages 1449 to 1451 of the paper-book., which is reproduced hereunder:
"A Committee was constituted by the Government of Maharashtra vide GR No.FLD 2319/316/F-10, Mantralaya, Mumbai dated 06/10/2022 as per the order of the Hon. National Green Tribunal dated 05/09/2022. The Committee was constituted with five Members as mentioned below.
1. Shri Naresh Zurmure, Addl.Principal Chief Conservator of Forests Cum Nodal Officer, Maharashtra State, Nagpur ...... Chairman
2. Shri Nitin Gudge, Chief Conservator of Forests, Nashik ... Member
3. Shri C.B. Tashildar, IFS, AIGF (Central)........ Member
4. Smt. Maya Patole, Addl. Collector Malegaon........ Member
5. Shri J.N. Yedlawar, Sub Divisional Forest Officer, Malegaon....
Member Secretary Committee visited the site on 19.10.2022 and again visited site on dated 24.11.2022 as per the instructions of Hon. National Green Tribunal. After the site visit, Committee met at Taharabad and discussed the issue with complainants namely;
1. Shri Shama Namu Mali
2. Mrs. Kirti Surajmal Jain
3. Mrs. Santra Kiran Jain
4. Shri Mahavir Babulal Pande After hearing their grievances, the Committee further discussed the issue and following observations were recorded.
1. There is environmental destruction caused due to dumping of debris of the rocks cut for establishment of statue. The extent of the area affected as per affidavit submitted by District Level Committee is 7.310 Ha.
2. There is an encroachment of
(a) 1.022 ha. & 3.43 ha. done by Chandrashekhar Kasliwal. This offence case is pending with Judicial Magistrate, Satana, District Nashik vide case No.290/2016. The next date is 26.12.2022.
(b) 0.29 ha. was encroached by local villagers. This encroachment is already evicted.
(c ) 0.0134 ha. done by Shri Siddhashekshtra Mangi Tungi Digamber Jain Devasthan (old trust) as per the Preliminary Offence Report no.6/2020 dated 14.09.2020. This case is pending with Sessions Court at Malegaon, District Nashik.
[NPJ] Page 36 of 50
3. As per field level officers the density of adjoining area where debris has been dumped is less than 0.4.
4. It is very difficult to remove debris dumped on forest area. Recommendations :
1) For an area of 7.310 ha used for non forestry purpose by User Agency, it is very difficult to remove debris as it is dumped on slope. If that debris is to be removed from that area, it will adversely affect the adjoining forest area, hence there is possibility of further destruction.
Similarly the quantum of debris is very huge and therefore, Committee opined that it is impossible to remove the debris without affecting adjoining forest area. An area of 7.310 ha is used by User Agency for dumping the debris; therefore the NPV of that much area should be recovered from the User Agency and for such violation there is provision of penal NPV. As per the guidelines of Government of India dated 6th Jan 2022. The NPV for area having density less than 0.4 is 957780 per hector so total value of NPV is Rs.70,01,372/- and Penal NPV as per Government of India norms is five times the actual NPV that is Rs.3,50,06,860/-.
2) Loose debris is lying on the forest floor on the slopes. During the rainy season loose boulders tend to roll down hill and adjoining forest area is likely to be affected. Therefore Committee opined to arrest the rolling of boulders by constructing gabian structures on lower side of debris area. The details of gabian structures required area as follows:
Sr.No. Length Quantity Amount
(Rs.)
1 85 mt. 110.50 cmt 1,98,662/-
3) Due to the boulders lying on the forest area there is destruction of
existing flora of that area. Therefore the Committee recommends that Forest Department should take plantation on equivalent area that is 7.310 ha and the cost of plantation should be recovered from user agency as per the existing norms of Forest Department. The amount required from pre planting year to 5th year is 3,92,520/- per hector. Therefore the amount for 7.310 ha will be 28,69,321/-."
29. Against this report, the Project Proponent - respondent No.13 has filed objections dated 15.03.2023, wherein it is submitted that respondent No.13 is not a commercial or profit-making organization, rather it is a religious organization for the benefit of lakhs of pilgrims who visit the Idol. [NPJ] Page 37 of 50 The applicants are trying to make backdoor entry by filing present application without challenging the letter dated 02.02.2018 issued by the MoEF, Nagpur to the Principal Secretary, Forest Department for diversion of 2.73 Ha forest land to the respondent No.13 Committee. Without challenging the said clearance, this Original Application has been filed to circumvent the issue of limitation. The aforesaid letter dated 02.02.2018 was challenged by one Ajay Puntambekar by way of an appeal No.70 of 2018 before this Tribunal, which was rejected vide order dated 13.05.2022, holding the same to be time-barred. Copy of the order dated 13.05.2022 is annexed at Annexure-R-1. Further it is mentioned that number of applicants, who had filed Original Application, had withdrawn themselves as the entire O.A. contains false and incorrect submissions. The present site is a rocky mountain with no flora, fauna, shrubs, trees, etc. hence there could be hardly any environmental loss ex facie. None of the applicants are aggrieved persons as they have not suffered any loss. The present Joint Committee report may not be taken into consideration unless delay is condoned regarding which no separate application is there on record. Besides this, it is also alleged that multiple causes of action have been set up in this application alleging violation of the provisions of Forest Conservation Act during the construction of murti and for unauthorized construction of road. These are two distinct issues for which separate clearances have been granted. The boulders work was started in 1999 while in order to cover up the limitation, separate cause of action is said to have occurred in 2018, alleging unauthorized construction of road. The said road is constructed by respondent No.1 and not by the answering respondent. The answering respondent has handed over the land and cost for construction of road. This Tribunal, vide order dated 05.09.2022 had constituted members of the Committee, who themselves are respondents in the present Original Application. Therefore, the observations made by the Committee are not acceptable to the answering respondent. It is trite law [NPJ] Page 38 of 50 that a person cannot be judged in his own cause. In the report, the Committee has relied upon the guidelines of the Govt. of India dated 06.01.2022. Despite this fact, it is trite law that any notification or guidelines, which are implemented, cannot be made retrospectively applicable unless there is a provision made in law in that regard. Therefore, the guidelines dated 06.01.2022 cannot be made applicable to the Idol (Murti), construction of which was commenced in 1998 and completed on 15.12.2012. In accordance to the said guidelines, the Committee has come to the conclusion that the answering respondent is liable to pay an amount of rs.3,50,06,860, being the five times of the present value of the alleged destruction of forest. The answering respondent received in principle approval from the MoEF on 12.08.1998 and removing of stones started in 1999 continued upto December, 2012. The boulders, which have been observed by the Committee found lying on the site, are there through its natural course and not dumped by respondent No.13. The proposal was thereafter approved by the Govt. of Maharashtra on 06.05.1999 and the actual construction of the Idol began in the year 2002. In the said report, a penalty of Rs.1,98,662 has been fastened on the answering respondent on account of these loose boulders, which are lying on the adjoining forest area. The Committee, which was constituted by this Tribunal consisted of a member by name C.B. Tahsildar, who was one of the signatories to the report, wherein it is recorded that respondent No.13 indulged into destruction of forest. It is submitted that the aforesaid officer had filed an affidavit on behalf of respondent Nos.3 to 5 dated 04.07.2022 wherein in paragraph No.12, it has been specifically stated that "no violation of Forest Conservation Act, 1980 and no forest offence has been committed". The report does not state on record that the dumped stones which were found on eastern and western side of the Idol had caused any environmental destruction. The Committee has also held that removing of boulders and stones from slopes would result in destruction of the existing biodiversity of [NPJ] Page 39 of 50 the forest. Further it is mentioned that applicant No.1 is an employee of the Trust i.e. Digambar Jain Trust and applicant is wife of the Manager of the said Trust. Applicant No.3 is the sister-in-law of the Manager while applicant No.4 runs a shop in the premises of the Trust, hence they are all encroachers, who are residing in the premises of the Trust and have vested interest. Therefore, their bonafides are questionable.
30. Another affidavit dated 06.09.2023 has been filed by respondent Nos.1 and 3 to 10, wherein guidelines issued by the Govt. of India dated 06.01.2022 in respect of the revision of rates of net present value has been filed as Annexure-I. In this affidavit, it is also mentioned that legal status of the land is Reserve Forest. Incharge of the said forest area had found that over 0.0134 Ha, there is mining, removal of stones and there is construction of cement concrete with tin shed, which activity is an offence under the provisions of Section 26(1)(d) (h) of the Indian Forest Act, 1927 and this activity is registered as a POR i.e. Preliminary Offence Report on 14.09.2020 by the incharge of the forest area. The related accused had been booked under law.
31. We have heard the learned counsel for the applicants, learned counsel for respondent Nos.1 and 3 to 10 - Forest Department and learned senior counsel for respondent No.13 - Project Proponent and perused the record.
32. Learned counsel for the applicants has, at the very outset, submitted the written arguments dated 29.01.2024, a copy of which had been served on the learned senior counsel for respondent No.13, who immediately objected to paragraph no.13 of the said written arguments/submissions, stating that in that para, additional prayer has been made by the applicants, which is not permissible because the same has not been originally prayed in the Original Application. The prayer made in para 13 is that Central Govt.'s Guidelines dated 07.10.2014 and permission given by the State Forest Department dated 20.01.2016 should be quashed as being ultra vires to the provisions of the Forest Conservation Act. We are in agreement with the [NPJ] Page 40 of 50 learned senior counsel for respondent No.13 and are of the opinion that such prayer cannot be made and allowed in the form of written argument as there is no prayer made in the Original Application in prayer clause. At this stage, learned counsel for the applicants has also not pressed this relief.
33. Thereafter, learned counsel for the applicants drew our attention to page 229 of the paper-book in order to establish that the property in question is admittedly a forest land because on that page, which is part of the affidavit filed by respondent No.9 - Sub-Divisional Forest Officer, Malegaon, District Nasik, in para no.1, it is clearly mentioned that as per letter dated 06.05.1999, forest land of 0.80 Ha of village Bhilwad was diverted for construction of the temple and Digambar Jain Murti. Then our attention was drawn to page 66 of the paper-book, which is a letter dated 06.05.1999, written by the Chief Conservator of Forests (Central), Regional Office, Bhopal addressed to the Principal Secretary, Govt. of Maharashtra, Revenue and Forest Department on the subject of `diversion of 0.80 ha. Of forest land for construction of temple and Digambar Jain Murti at Bhilwad Taluka Satna under East Nashik Forest Division in Nashik district'. The said diversion was allowed subject to ten terms and conditions, one of which at serial No.9 states that the forest land shall not be used for any purpose other than specified in the project proposal. Highlighting this condition, learned counsel has argued that there was no provision for approach road to be made from foothills upto the Murti site while this permission was granted for diversion, which has not been followed by respondent No.13 by making that approach road. Thereafter our attention was drawn to page 165 of the paper-book, which is a letter dated 05.07.2017 issued by the MoEF&CC to the Secretary, Govt. of Maharashtra, Revenue & Forest Department regarding diversion of 2.73 Ha of reserve forest land in favour of Secretary, Bhagwan Shri Rishabhadev Murti Nirman Committee, Mangitungi (Satna) for construction of road, electric and water pipeline, parking shed, murti platform, etc. for the Idol and this diversion was permitted subject to as [NPJ] Page 41 of 50 many as 29 conditions mentioned therein. Learned counsel for the applicants drew our attention to condition No.(xi), which says that no labour camp shall be established on the forest land and it was urged that since in the permission dated 05.07.2017, while allowing diversion of 2.73 Ha of forest land, this rider was imposed that no labour camp shall be established, similar rider should be read there to the earlier diversion of 0.80 Ha of forest land granted through letter dated 06.05.1999.
34. Our attention was also drawn to the structures which are shown at page 75 of the paper-book and it is alleged that these structures are still lying there, which are presumably said to be for the labourers who may have been employed for the construction work of Idol as well as temple. Therefore, these structures should be treated to be violation and respondent No.13 should be held accountable for that.
35. Our attention was thereafter drawn to pages 86 to 91 of the paper- book, which contain site inspection report made by the Sub-Divisional Forest Officer, Malegaon on 17.12.2015, wherein at serial No.13 at page 91, it is recorded that this is unique sculpture being carved in single stone of 108 ft. height. Lacs of pilgrims, devotees & tourists visit this spot every year. So for providing amenities is compulsion of User agency. Hence approval of the project is recommended. Subsequent to this recommendation, the Govt. of Maharashtra, vide order dated 12.02.2018 allowed diversion of 2.73 Ha reserve forest land for construction of road, electric and water pipeline, parking shed, murti platform, etc.
36. Our attention is also drawn to pages 116 to 118 of the paper-book, which is English translation of a complaint dated 28.10.2016 made by the Joint Forest Management Committee, Bhilawad (Mangi Tungi) to the Range Forest Officer, Taharabad, wherein in para 3 it is recorded that there has been massive encroachments in the forest area at the bottom of Mangi Tungi hills. Permanent fixed construction has come up over there without obtaining prior permission from Joint Forest Management Committee, which [NPJ] Page 42 of 50 needs to be removed immediately. For going to Mangi Tungi hill, four wheelers are used. Another complaint of similar nature is at pages 131 to 133 of the paper-book, addressed to the Hon'ble Prime Minister by the same Committee, made on 15.04.2017.
37. Having drawn our attention to pages 230 to 231 of the paper-book, which is part of the affidavit of respondent No.9 - Sub-Divisional Forest Officer, it is argued by the learned counsel for the applicants that it establishes that construction of the road was done in 2011 while permission for the same was granted in 2017. This should be treated to be a violation for which environmental damage compensation may be ordered to be levied.
38. We note that this appears to be an erroneous argument because pages 230 and 231 of the affidavit mentioned above shows that in January, 2011, an estimate was prepared by Range Forest Officer, Tahirabad for improvement of the approach road leading to the Idol and the amount was also kept apart for it. This was only temporary permission granted keeping in mind the Maha Mastak Abhishek ceremony for which large number of pilgrims were expected to come and this affidavit also makes it clear that the temporary permissions for electric and water supply, usage of natural pathway, temporary washrooms, etc., which were all removed after closure of the ceremony. Therefore, these temporary structures/constructions cannot be held to be violation made on the part of the Project Proponent - respondent No.13 as these constructions were made by the Government Authorities for the said ceremony.
39. Having drawn our attention to pages 589 to 590 of the paper-book, it is argued by the learned counsel that this document is guidelines for diversion of forest land for non-forest purpose under the Forest (Conservation) Act, 1980, dated 07.10.2014, wherein it is laid down that temporary work in the forest land, which does not break-up land or portion thereof or does not create any right on such forest land, will not require prior approval of the Central Government under the Forest Conservation Act. It is [NPJ] Page 43 of 50 argued that the Act is very clear that non-forest work cannot be allowed in forest land without approval from the Central Government in the form of clearance. This Central Government's letter dated 07.10.2014 and State Government's letter dated 20.01.2016 are totally violative of the provisions of Forest Act. In this regard also, it is argued that Principal Bench of this Tribunal in the judgment dated 10.12.2015 passed Original Application No.87 of 2015 [Social Action for Forest and Environment (SAFE) V. Union of India & Ors. held that an office letter cannot waive what is statutorily covered under the Forest Conservation Act as the Act does not vest any power in MoEF to exclude non-forest activities in a forest area which do not fall within the specified category in Section 2 of the said Act. It is settled principle of law that statutory provisions cannot be amended or varied by office letters. Whether utilization of the forest area has to be permitted or not must essentially follow the legislative provisions contained under Section 2 of the Act. The Central Government must grant its prior approval in that regard.
40. It was tried to be argued by the learned counsel for the applicants that the letter of Govt. of India dated 07.10.2014 related to the temporary work in the forest land subject to terms and conditions laid down, was quashed in earlier Original Application No.87 of 2015 by the Principal Bench of this Tribunal. This submission on the part of the learned counsel is not found to be true because this Tribunal did not quash the said letter dated 07.10.2014, rather it quashed letter of MoEF dated 28.05.1998, which is a different letter. In our estimation, we cannot hold that the temporary permission by way of letter dated 07.10.2014 issued by the Central Government, for construction of road, electric and water pipeline, parking shed, murti platform, etc. was erroneously granted.
41. Our attention was drawn by the learned counsel for the applicant to pages 56 to 61 of the paper-book, which contain the Google images of the site in question in order to establish that in the vicinity of the Idol, the entire [NPJ] Page 44 of 50 area has been destructed because of the said construction, but we find no force in this argument because we can see from these images that the boulders are lying there, but whether boulders had caused damage to the trees or other significant flora and fauna of the area, cannot be concluded. It appears to be a barren land with some bushes here and there. These photographs/images, which have been placed before us, are of June, 2018 while it is admitted case of the applicants that the carving of the Idol was started in 2002 which ended in 2012. What was the position in 2002 is not placed before us so as to make out a case of destruction of forest land. This also would give substance to the argument made by the learned senior counsel for respondent No.13 with respect to the prayer that the encroachment made by respondent No.13 between 1999 to 2018 in the forest land at Mangi Tungi should be ordered to be restored being time- barred because the construction has been done in 0.80 Ha area. This prayer would certainly stand time-barred as per the provisions of Section 15 of the NGT Act wherein only five years' period is provided to bring the case for such relief from the date of cause of action first arose. The applicants are also local residents. Therefore, it cannot be held that they were not knowing about carving/ construction of the Idol and might have seen the damage to the environment happening at that point of time. Therefore, it is beyond comprehension that they did not raise this issue of damage to the environment at that point of time when the work was at its peak and boulders were rolling down causing destruction.
42. We failed to understand as to why at the time of permitting the carving, a comprehensive plan was not sought from the Project Proponent for construction waste management because permission was being granted for carving/building of Idol along with temple at the site in question. Certainly the Government ought to have taken into consideration that there would have to be an approach road to reach the spot in question not only for one or two persons rather for a large number of labours, and construction may [NPJ] Page 45 of 50 result in damage to the local flora and fauna and trees, etc. by rolling down the boulders, etc., yet they went on to grant the said permission and did not initiate any step for conservation of forest at that point of time.
43. We also have noted in the Joint Committee report, which is annexed at pages 1449 to 1451 of the paper-book that they found environmental destruction caused due to dumping of debris of the rocks cut for carving of statue. The extent of the area affected is reported to be 7.310 ha. It is reported in that report that it is very difficult to remove debris dumped on forest area. It is held to be impossible to remove debris without affecting adjoining forest area and hence, it is proposed that the user agency - respondent No.13 should be levied a penalty of sum of Rs.3,50,06,860, which has been calculated by them as five times of the actual NPV being Rs.70,01,372, which is based on Circular dated 06.01.2022 of the Govt. of India. It is also proposed that the rolling down of the boulders may be obstructed by constructing gabion structures on lower side of debris area, for which the details are also given in the form of its length being 85 mtrs, quantity being 110.50 centimeters and the amount which is likely to be incurred is reported to be Rs.1,98,662. We fail to understand from perusal of this report as to how this Committee has arrived at a conclusion that there did happen environmental destruction due to carving of Idol, details of the same are not given. It is natural also because if at all any damage had happened, it may have happened long back in point of time when actual Idol was being carved and temple was being constructed and it is only on the basis of conjecture that there might have happened damage to the environment and for that, now the above amount is being proposed to be levied from the Project Proponent - respondent No.13 based on the said circular, which is of the subsequent date as so called act was committed long back in 2002 upto 2012. This circular cannot be made applicable retrospectively but we find substance in the recommendation made by them with respect to checking the rolling down of boulders by setting up a gabion [NPJ] Page 46 of 50 structure in order to avoid any future loss to the environment or damage to the other property. During the argument, learned counsel for respondent No.13 has given consent also that they would bear the expenses which would be incurred in constructing the said gabion structure if that is ordered to be set up. They also voluntarily stated from their end that they were ready to incur Rs.2.5 lakh immediately, which could be deposited with the agency which would be carrying out that work.
44. Our attention is also drawn to the objections filed by the applicants against the Joint Committee report, which are annexed at pages 1452 to 1455, wherein main emphasis was laid on the fact that the Committee members were not expert in Civil Engineering, hence they could not have given solution to remove boulders nor could they express opinion for setting up gabion wall to check further rolling down of boulders. In fact, removal of these boulders is the only solution and for this, it was necessary to obtain opinion/report from NEERI.
45. We are not in agreement with the objection raised by the applicants because the Forest Department itself is competent enough to suggest measures which were required to be taken. It has clearly been mentioned by them in the form of Joint Committee report that removing of boulders may result in further damage to the adjoining forest area. We do not deem it appropriate to refer the matter to any other agency like NEERI and/or other expert body or constitute any other Committee for studying the issue as to how boulders could be removed from that area. It would be an exercise in futulity.
46. Our attention is drawn by the learned counsel for the applicants to the Joint Visit Report dated 12.10.2020 (annexed at pages 720 to 723 of the paper-book), wherein it is recorded that dumping of stones and boulders derived from carving of Jain Murti from the hill area are found in Eastern and Western side of the hill. Total area was found to be 7.310 ha (same area which is reported in the Joint Committee report, which has been cited [NPJ] Page 47 of 50 above). It is further recorded in this report that this debris was found lying since long. The dumping of stones and boulders are found on very steep slope which are difficult to be removed as the vehicle cannot reach the slope. Moreover it would be very expensive exercise which would not be feasible to achieve the objective. It is also recorded that while removing these stones and boulders from steep slope, it would cause the destruction of the existing biodiversity of the forest area.
47. Our attention is also drawn to page 940 of the paper-book, which is submission made by the applicants on the point of limitation, wherein it is recorded that the forest clearance for the erection of Murti was given on 05.09.1999. However, respondent No.13 Committee committed breach of the said clearance and carried out the illegal activities by exceeding the area permitted by the said forest clearance. We would like to make it clear in this regard that this argument does not appear to hold any water because no evidence could be produced from the side of the applicants to show that the permission which was granted for diversion of the land on 06.05.1999, was exceeded by respondent No.13.
48. Further it is mentioned in the above submission of the applicants that in order to save the illegal activities of respondent No.13, the State Forest Department has granted the final approval on 02.02.2018, by which the illegal activities in breach of the clearance dated 06.05.1999 became permissible. The first cause of action had arisen on 02.02.2018. We are not in agreement with this argument of the learned counsel for the applicants because there are two separate permissions granted, one on 06.05.1999 for the purpose of carving of Idol and construction of temple and the other is granted on 27.12.2017, which is a separate issue and this diversion was for construction of road, electric and water pipeline, parking, Murti platform, etc. It is also stated by respondent No.13 in their affidavits that this work is yet to be started by them. The applicants have tried to convince us that the [NPJ] Page 48 of 50 road which was constructed and other temporary facilities, which were provided by the State Government during Maha Maastak Abhishek ceremony, should be treated to have been done by the Project Proponent - respondent No.13, but we make it clear that the said facilities or construction at that point of time were done by the State Government for ceremony specifically by granting short term temporary permission and after the ceremony was over, the same were withdrawn/removed, while the work under this permission dated 27.12.2017 is yet to be undertaken by the Project Proponent. Hence, we do not find violation on the part of respondent No.13 in this regard.
49. We dispose of this Original Application with the following directions:
(A) Despite the fact that we do not find any recent violations to have been committed by the Project Proponent - respondent No.13, but looking to the safety of the local residents due to likelihood of any bounders rolling down and causing damage, it is appropriate suggestion given by the Joint Committee to set up a gabion wall to check any such kind of rolling down of the boulders. Therefore, we direct respondent No.13 to deposit an amount of Rs.2.5 lakhs with the Forest Department within a period of one month from the date of uploading of this judgment and it shall be incumbent upon the Forest Department to engage an Agency or do the work on their own for setting up this gabion wall at the earliest.
(B) We also suggest that respondent No.13 may also consider to assist/ co-operate with the Forest Department in plantation work in the area where debris has got deposited in the past. This will not only beautify the area but also help resist the rolling down of the debris/boulders.
51. In view of disposal of Original Application as above, the I.A. Nos.121/2019, 124/2019 and 91/2022 also stand disposed of. [NPJ] Page 49 of 50
52. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM March 12, 2024 O.A. No.46 OF 2018(WZ) npj [NPJ] Page 50 of 50