National Green Tribunal
Ms Mahadev Homes Through Its Partner ... vs State Of Goa on 31 May, 2024
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
**********
Original Application No.89/2024(WZ)
I.A. No.166/2024(WZ)
IN THE MATTER OF:
M/s. Mahadev Homes
through its Managing Partner
Shri Hari Bhatia
having Registered Office at- Mohan Plaza,
Next to Mohan Pride, Khadakpada,
Kalyan (West), Maharashtra -421 301.
.....Applicant
Versus
1. The State of Goa
through its Chief Secretary,
Secretariat, Porvorim, Goa- 403 521.
2. The Chief Conservator of Forests,
Department of Forests,
Junta house, S.V. Road,
Panaji, Goa- 403 001.
3. Deputy Conservator of Forests
Working Plan Division & Chairman,
Review Committee, Department of Forests,
Ponda Goa- 403 401.
4. The Chief Town Planner,
Town and Country Planning Department,
2nd Floor Dempo Towers, Patto Plaza,
Panaji, Goa- 403 001.
5. The Deputy Town Planner,
Town and Country Planning Department,
Government of Goa
North Goa District Office,
302, Govt. Building Complex,
Mapusa, Bardez, Goa- 403 519.
6. The Under Secretary (Forests),
Department of Forests,
Government of Goa
Secretariat, Porvorim, Goa- 403 521.
.....Respondent(s)
Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 1 of 12
Counsel for Applicant:
Mr. Nitin Sardessai, Senior Advocate along-with
Mr. Kaif Noorani, Advocate and
Mr. Shivshankar Swaminathan, Advocate
PRESENT:
Hon'ble Mr. Justice Dinesh Kumar Singh (Judicial Member)
Hon'ble Dr. Vijay Kulkarni (Expert Member)
Reserved on : 28.05.2024
Pronounced on : 31.05.2024
JUDGMENT
1. This application has been filed with the prayers that the property bearing Survey No.55/1-A of Reis Magos, Bardez Goa does not meet the criteria of Private Forest; the Deep Shikha Sharma Review Committee Report be quashed to the extent of the property in question; the Zoning Information dated 19/02/2024 issued by the Respondent No.5-Deputy Town Planner, Town and Country Planning Department, Government of Goa, Mapusa, Bardez, Goa be quashed; Respondents (appears to refer to the respondent No.1- The State of Goa Through its Chief Secretary; respondent No.2- The Chief Conservator of Forests, Department of Forests; respondent No.3- The Deputy Conservator of Forests, Working Plan Division & Chairman, Review Committee, Department of Forests, Ponda, Goa; respondent No.4- The Chief Town Planner, Town and Country Planning Department, Panaji, Goa; respondent No.5- Deputy Town Planner, Town and Country Planning Department Government of Goa; and respondent No.6- Under Secretary (Forests), Department of Forests, Government of Goa) be directed to correct the records pertaining to the property in question and to remove the classification of the same as 'Private Forest (Subject to Confirmation)'; the Notification dated 13/09/2022 issued by the Respondent No.6- Under Secretary (Forests), Department of Forests, Government of Goa, which was published in the Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 2 of 12 official gazette dated 22/09/2022 be quashed to the extent that "new survey numbers formed due to partition of any of the above survey number after the date of identification/demarcation of Private Forests in the field shall be deemed to have notified as Private Forest, if the demarcated area comes within that part as per the partition plan.".
2. Above-mentioned prayers have been made by the applicant on the grounds that the identification of the property in question as a Private Forest is illegal because the said property is not having forestry specifies and does not meet the criteria laid down for identification of properties as private forest. A bare perusal of the detailed findings of the Sharma committee would clearly suggest that in the Survey No.55/1 of Reis Magos, Bardez Taluka, it has concluded that 'The Area is partly demarcated by earlier demarcation team. Balance area does not qualify for criteria of Private Forest'. It was incumbent upon the said Committee to ascertain and specify as to whether the said property was a Private Forest or not.
3. It is further mentioned in the grounds of this application that the error commenced with the Sawant Committee in identification of the said property as a Private forest. However, the said Committee itself had clarified in its report that the report was an approximation and that before finalizing the same, the State Government would have to carry out actual ground verification to determine the extent of Private Forests, which is enough to fortify the contention of the Applicant that the property in question has been illegally identified as a private forest by the Sawant Committee, which is illegal and erroneous and is nothing but mere approximation.
4. It is further mentioned in the grounds of this application that the identification of the said property as a Private Forest by the Karapurkar Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 3 of 12 Committee was also erroneous as the said Committee in its Report has stated that 'The Committee being aware of the fact that they were required to supplement the task of the earlier committee viz. Sawant Committee' and has erroneously proceeded to identify Private Forests 'in addition to the same done by the Sawant Committee so as to supplement the information already compiled by the Sawant Committee.' The said Committee only 'build on/ add upon the data already generated by the pervious committee'. This would reflect that the said Committee admittedly did not even identify the said property as a private forest on its own and accepted the erroneous identification of the said property as Private forest, which cannot be allowed to be continued.
5. It is further mentioned in the grounds of this application that the Sharma Committee also has erroneously and illegally identified the said property as a Private Forest. A bare perusal of the terms of reference of the said Committee itself would show that the said Committee had only reviewed the digitized maps of private forest areas, which had been prepared using records of the Revenue Department as well as records of the Directorate of Settlement and Land Records and overlaid the same on the Forest Cover Map/ Classified image of the Forest Survey of India for assessment of Forest cover in Goa, conforming to the three criteria. Technical expertise of Forest Survey of India (FSI), Bangalore was only engaged to ascertain the composition and canopy density of the identified areas, in the event of a dispute, and thereafter, Dy. Conservator of Forests of the concerned territorial divisions would then carry out ground verification in respect of such cases, where they were having doubts or ambiguity. This itself would clearly show that the Sharma Committee had also not even visited the said property but also had proceeded to identify the same as a Private Forest.
Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 4 of 12
6. It is further mentioned in the grounds of this application that the property in question does not have 75% forestry species, which is evident from a bare perusal of the Award dated 24.11.1997 and Certificate of Possession dated 20.03.1998. A bare perusal of the said documents would clearly show that trees that existed on the said property, none of them were of forestry species and all were fruit bearing trees namely Triphal, Cashew, Jambal and Cocum. It is further mentioned that none of the committees have even visited the property in question, which is evident from a bare perusal of their respective reports. It is further mentioned that the Sharma Committee itself has contradicted its report. On the one hand, it states that it reviewed the digitized maps of private forest areas, which had been prepared using record of Revenue Department or record of the Directorate of Settlement and Land Records overlaid upon the Forest Cover Map/ Classified image of the Forest Survey of India for assessment of Forest cover in Goa and on the other hand, the Committee itself has stated that 75% of the tree composition should be forestry species, which cannot be ascertained by using Forest Cover Map/ Classified image. Therefore, the ground verification was required to be carried out.
7. It is further mentioned in the grounds of this application that despite the property in question having a distinct Survey Number as far back as in the year 2010, the same has not been separately identified as a Private Forest by the Sharma Committee and on this count alone, the present Application deserves to be allowed. It is further mentioned that despite the said property having a distinct Survey Number as far back as in the year 2010, the same does not find place in the Sharma Committee Report and hence, it can be safely concluded that the same is not a private forest. It is further mentioned that admittedly, no technical nor scientific study of composition of soil has been done for identifying and demarcating Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 5 of 12 the property in question to be a Private Forest by any of the Committees. None of the Committees mentioned above have in fact ever given a proper report as to what was the canopy density or as to how many trees on the said property were in fact forestry species. Therefore, the identification of the said property as a Private Forest is absolutely done in a casual manner.
8. It is further mentioned in the grounds of this application that the Respondents cannot deprive the Applicant from enjoying its property on the basis of erroneous identification of the same as a Private Forest contrary to law, as the same amounts to a violation of the Constitutional Right of the Applicant, enshrined under Article 300A of the Constitution of India. It is further mentioned that the Sharma Committee has given the area of Survey No.55/1 as 12.28 ha. as per the Form I and XIV or survey plan. But the said committee has not separately even bothered to ascertain the area of the said property i.e. Survey No.55/1 and survey No.55/1-A. The Sharma Committee has given the details of area under Medium Dense Forest (0.4) and above canopy density as per the FCM/satellite Image for the larger property being Survey No.55/1 as 0.0000, but yet has identified the same as a Private Forest, which itself exposes the error in the report.
9. It is further mentioned in the grounds of this application that the Sharma Committee has given OA(Open Area) and OF(Open Forest) in Canopy Classes available on FCM/Satellite Image but has failed to give the specifics of the same. It is further mentioned that Applicant engaged the services of a Puneet Jamkhadi, a registered Engineers and Surveyors, who, vide Report dated 12/01/2024, had clearly opined that the trees that exist on the said property were not forestry species. The Land Acquisition Award and the Form I and XIV of the property in question at the time of acquisition listed out the names of tenants of the said property, which Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 6 of 12 would demonstrate that the said property was actually agricultural land and not a forest land. The three criteria laid down for identification of Private Forests have been given a complete go-by and in relation to the Applicant's property in question. Therefore, the procedure adopted by the Committees mentioned above is wholly illegal. The procedure adopted by the Sharma Committee in its Report is ultra vires the three criteria laid down and accepted to classify a property as a Private Forest by the Government.
10. It is further mentioned in the grounds of this application that the Applicant's neighbouring plot i.e. Survey No.69/4 was also erroneously sought to be classified as a Private Forest by the Respondents, which was rejected by the Hon'ble Apex Court in the case of Tata Housing vs. Goa Foundation [2003 (11) SCC 714], relevant part of which is quoted in para no.13 of the order of Hon'ble Apex Court, which is annexed at page nos.75 to 82 of the paper book.
11. It is further mentioned in the grounds of this application that once the property in question i.e. Survey No.55/1-A is not included in the Sharma Committee Report, it is obligatory on the part of Respondents to correct their records and to remove the illegal classification of the said property as a "Private Forest (Subject to Confirmation)". It is further mentioned that the Zoning Information dated 06/02/2024 in the 'Area Statement' has erroneously claimed that Area under Private Forest is 65,572 sq. mts. A bare perusal of the purported Area Statement annexed to the Zoning information would clearly show the fallacious nature of the same. On the one hand, it claims that the area under Private Forest is 65,572 sq. mts. but despite that the Map with the statement contains 'Area under Private Forest (Subject to Confirmation)'. The Plan annexed to the Zoning information has been prepared by a Consulting Engineer of the Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 7 of 12 TCP, who is not authorized to identify any property as a 'Private Forest' (Subject to Confirmation)'. This itself renders the Plan annexed to the zoning information to be illegal and ab-initio null and void.
12. It is further mentioned in the grounds of this application that the Impugned Notification contains Note- 1) i.e. "new survey numbers formed due to partition of any of the above survey number after the date of identification/demarcation of Private Forests in the field shall be deemed to have notified as Private Forest, if the demarcated area comes within that part as per partition plan." which is illegal and without any authority of law. The Impugned Notification i.e. by the Note 1 cited above, exceeds the Sharma Committee Report and includes properties therein, which were not/did not form part of the Sharma Committee Report, which was directed to be accepted by this Tribunal vide Order dated 18/08/2020. The fact that the Sharma Committee does not include the property in question in its Report, which would clearly mean that the said property was not included in the same. Hence, the Respondent Nos.1 & 6 cannot expand the ambit of the said Report and 'deem' the said property to be included in properties therein, which are separate and distinct survey numbers.
13. It is further mentioned in the grounds of this application that a bare perusal of the Form I and XIV of the Survey Number in question would show that the same identifies an area of 67,090 sq. mts. as 'Dry Crop' and 'Total Cultivable Area'. The same is also clear in the Remarks, which is recorded in the Order of Deputy Collector dated 03/05/2010, whereby the same has been partitioned. Therefore, the said property is admittedly not a Private Forest (Subject to Confirmation) as the same has been wrongly claimed by the Respondent No.5.
Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 8 of 12
14. The learned counsel for applicant has mainly emphasized upon a point that the partition of Survey No.55/1 happened in the year 2010 when the Survey No.55/1 and Survey No.55/1-A were segregated. Therefore, the Survey No.55/1-A ought to have been shown separately by the Sharma Committee in its report while identifying the Survey No.55/1 as a private forest area. Therefore, if the Survey No.55/1-A was not specifically mentioned in the said report by the Sharma Committee, that would mean that the same was never considered as to whether the same was forming part of a private forest area or not. But we are not in agreement with this argument made by the learned counsel for applicant. We had called for an information from the learned counsel for applicant to submit the total area of Survey No.55/1 as well as that of the Survey No.55/1-A.
15. We find that in the Form No.I & XIV, which pertains to Survey No.55/1, the area of the said survey number is shown as 5.57.10 hectares, while in the Form No.1 & 14, which pertains to Survey No.55/1-A, the area is recorded as 6.70.90 hectares. If we add up these two areas, it comes to total area of 12.28 hectares and the said figure of 12.28 hectare area is found to have been shown in the Sharma Committee Report, which is annexed at page no.93 of the paper book. Therefore, it is clear in our estimation that the Survey No.55/1 and the Survey No.55/1-A, both were taken into consideration at the time of identification of these survey numbers as a private forest area by the Sharma Committee, which had been approved by this Tribunal vide order dated 18.08.2024 passed in Original Application No.479/2018 (Goa Foundation vs. The State of Goa & Ors.), wherein this Tribunal had passed following order:-
"26. After considering the above, we direct as follows:Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 9 of 12
i). 41.20 sq km area demarcated by Forest Department and 4.91 sq km identified by the Sharma Committee totaling 46.11 sq km is confirmed and accepted as private forest.
ii). The Chief Secretary of State Government of Goa is directed to notify the same and make suitable entries in the Revenue records in accordance with rules immediately as soon as possible.
iii). We appreciate the efforts by Goa Foundation through its Secretary Dr. Claude Alvares and Ms. Norma Alvares, Learned Sr. Counsel for agitating the matter and finalizing it which was to be done by the State of Goa and by means of filing the application and contesting it at this stage has taken efforts to fmalizing it which is a matter to be taken on record. In light of above facts the Goa Foundation should be paid the amount of fees paid while filing this application and also cost of litigation to be decided by the State of Goa and to be reasonably compensated. We leave it on the State of Goa to decide the amount of cost of litigation which should be accepted by the applicant without any contest."
16. Pursuant to above order of this Tribunal, the Government had issued Notification dated 22.09.2022, which is annexed at page nos.444 to 507 of the paper book. In this very Notification, at page no.449 of the paper book Note:1 & 2 are added to the following effect:-
"1) Any new survey numbers formed due to partition of any of the above survey number after the date of identification/demarcation of Private Forests in the field shall be deemed to have notified as Private Forest, if the demarcated area comes within that part as per partition plan.
2) Appeals have been preferred against the order of Hon'ble NGT dated 18-08-2020 before the Hon'ble Supreme Court of India in the matters of Krishna Plantations & ANR Vs State of Goa & Ors. in Civil Appeal No. 121 of 2021 (pertaining to Sy. No. 12(p), 27(p) and 28(p) of Village Sulcorna of Quepem Taluka), in the matters of Pedro Januario Carlos Barreto & ANR Vs State of Goa & Ors. in Civil Appeal Diary No. 22384 of 2021 and SLP(C) No. 15542/2021 (IX) (pertaining to Sy. No. 42/1, 43/0 and 44/0 of Village Reis Magos of Bardez Taluka) and in the matters of Salgaonlcar Marine Pvt. Ltd., Vs State of Goa and Ors. in Civil Appeal Diary No. 29658 of 2021 (pertaining to Sy. No. 107/1 of Talaulim Village of Tiswadi Taluka), along with Diary No. 29647 of 2021 (pertaining to Sy. No. 31/1 of Gaulim-Moula Village of Tiswadi Taluka), Diary No. 29646 of 2021 (pertaining to Sy. No. 106/1 of Talaulim Village of Tiswadi Taluka) and Diary No. 29654 of 2021 (pertaining to Sy. No. 39/2 of Gaulim-Moula Village of Tiswadi Taluka) wherein Hon'ble Supreme Court vide its order dated 01-02-2021, 08-
10-2021 and 11-02-2022 respectively has directed to maintain the status quo, hence, notification of the private forests in respect of the area comprising the said survey numbers which are subject matters of Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 10 of 12 the said Civil Appeals shall be subject to outcome of the said Civil Appeals.
The detailed findings of the Review Committee headed by Deputy Conservator of Forests (Working Plan) submitted before Hon'ble National Green Tribunal (NGT) in respect of above said survey numbers is annexed herewith as Annexure I."
17. "Note: 1)" of the above-mentioned Notification is being challenged by the applicant to be declared illegal as the same is ultra virus to the report of the Sharma Committee. But we are not inclined to accept this argument made by the learned counsel for applicant because by this Notification, nothing extra has been added, rather a clarification was given in that, that if any new survey numbers are formed due to partition of any of the above survey number (mentioned in this Notification) after the date of identification/demarcation of Private Forests in the field, the same shall be deemed to have been notified as a Private Forest, if the demarcated area comes within that part as per partition plan. In this regard, we are of the view that once the matter with respect to finalization of the private forest area has been settled in the matter of Survey No.55/1, of which the entire area i.e. 12.28 hectares has been mentioned, which in our estimation also includes the area of Survey No.55/1-A as well and has been notified in the official Gazette of the State Government of Goa, now, the same cannot be overturned by us on the basis of present application filed before us.
18. Against the order dated 18.08.2020 of this Tribunal, various affected parties had approached the Hon'ble Supreme Court, which also finds mention in the said Notification at page no.449 of the paper book, wherein the Hon'ble Supreme Court vide its orders of various dates, which are cited therein, had directed to maintain status quo. Therefore, likewise in the case in hand as well, if the applicant is aggrieved by the said order dated 18.08.2020 of this Tribunal, on the basis of which this Notification has been issued, applicant may also approach the Hon'ble Supreme Court. Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 11 of 12
19. In view of above, we dispose of this application accordingly at the admission stage itself.
20. Pending application, if any, also stands disposed of. No order as to cost.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM May 31, 2024 Original Application No.89/2024(WZ) I.A. No.166/2024(WZ) P.Kr.
Original Application No.89/2024(WZ) [I.A. No.166/2024(WZ)] Page 12 of 12