National Green Tribunal
The Goa Foundation vs State Of Goa on 19 March, 2024
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[Through Physical Hearing (with Hybrid Option)]
ORIGINAL APPLICATION NO. 98 OF 2022 (WZ)
The Goa Foundation,
Through its Secretary Dr. Claude Alvares,
Age : 74 years, having Regd. Office at
Room No.7, Above Mapusa Clinic,
Mapusa, Goa - 403507,
Contact N.-8007558624
Email id : [email protected] .... Applicant
Versus
01. The State of Goa,
Through its Chief Secretary,
C/o Secretariat,
Porvorim, Goa - 403 521
Email id : [email protected]
Contact No. - 0832-2419402
02. The Forest Department,
Government of Goa,
Through the Principal Chief
Conservator of Forests,
`Van Bhavan', Altinho,
Panaji, Goa - 403 001,
Email id : [email protected]
Contact No. : 0832-2492533
03. The District Collector,
North Goa, Collectorate Building,
Opposite Municipal Garden,
Panaji Goa - 403 001
Email id : [email protected]
Contact No. : 0832-2225083
04. The Town and Country Planning Department,
Through the Chief Town Planner (Planning),
2nd Floor, Dempo Towers,
Patto Plaza, Patto, Panaji, Goa - 403 001
Email id : [email protected]
Contact No. : 0832-2437352
05. The Village Panchayat of Assagao,
Through its Secretary,
Shop No.312, Munang Waddo,
Assagao, Goa - 403 507
Email id : [email protected]
Contact No. : 919764512999
06. John Alfredo Nazareth,
H. No.154, Bairo Alto,
Assagao, Bardez, Goa - 403 507
[NPJ] Page 1 of 22
Email id : [email protected]
07. Antonio Agnelo Nazare,
H. No.154, Bairo Alto,
Assagao, Bardez, Goa - 403 507
Email id : [email protected] ....Respondents
APPEARANCE :
Applicants : Ms. Norma Alvares, Advocate
Respondents : Ms. Manasi Joshi, Advocate for R-1 to R-4
Mr. Somnath B. Karpe, Advocate for R-5
Mr. J.E. Coelho Pareira, Senior Advocate along with
Mr. Vinod Korgaonkar, Advocate for R-6 and R-7
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
================================================================
Reserved on : 31.01.2024
Pronounced on : 19.03.2024
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JUDGMENT
1. This Original Application has been filed with following prayers:
"(i) An order be issued quashing the Conversion Sanad dated 21.09.2021;
(ii) An order be passed quashing the TCP Technical Clearance dated 08.11.2021;
(iii) An order be passed quashing the Construction License dated 19.01.2022;
(iv) A direction be issued to the respondents to implement the Forest Department‟s order dated 07.05.2020 and to restore the trees standing on the plots in question."
2. The facts of this case, in brief, are as follows:
3. Survey No.128 of Assagao village, Bardez Taluka is a part of a large contiguous patch of private forest. As per the Thomas Committee report, entire Survey No.128 of the said village with the sole exception of sub-division [NPJ] Page 2 of 22 No.128/14 was provisionally identified as private forest after ground visit. The said report was presented to the Goa Government in October, 2018. Somewhere in 2019, respondent No.6- John Alfredo Nazareth and respondent No.7- Antonio Agnelo Nazare began felling the trees and clearing the underbush on Survey No.128/9 and 128/10 without permission from any authority. A local NGO - Goa Green Brigade made a complaint to Forest Department regarding destruction of forest land in and around Survey No.128/9 and 128/10, based on which the property was inspected by the Forest Department on 31.10.2019. A panchanama was prepared which records that "in the property bearing Sy.No.128/9 and 10 situated at Bairo Alto we have seen some area approximately 1500 sq mts have been cleared with the help of machinery and we have not found any stump at the site." The aid panchanama further records the admission of respondent no.6 - owner of the impugned plot, stating that he had cleared the said land by cutting and uprooting the trees with the help of some migrant labourers. A copy of the panchanama is annexed as Annexure-5.
4. It is further mentioned that the Forest Department further followed up this matter with a letter dated 07.05.2020 by the Deputy Conservator of Forest to the Range Forest Officer, directing him to get the said area (Survey No.128/9 and 10) replanted with 30 nos. of forestry species and "to ensure that the trees are planted all over the felled survey nos., not only on the border, so that the area is rejuvenated as a natural forest in the future". A copy of the said letter is annexed as Annexure-6. It is further submitted that the above letter i.e. Annexure-6 clearly establishes that the property on which the trees have been felled continued to remain a forest in the eyes of the Forest Department, who directed for its restoration as the same were illegally felled.
5. Further it is mentioned that a Review Committee, which had been appointed by the Government of Goa in January, 2020 to review the Thomas and Araujo Committee reports, deleted the entire Survey No.128 from the list [NPJ] Page 3 of 22 of private forests in Assagao village without a ground verification, which was done, not on the basis of actual field verification but merely on the reliance of the FSI maps and satellite imagery. The said exclusion was recorded in the 2nd interim report of the Review Committee dated 10.06.2021, the relevant extract of which is annexed as Annexure-7.
6. Further it is mentioned that the second interim report records that Survey No.128 of the said village "does not qualify the criteria of private forests." For the plots which did not meet the criteria, the Review Committee did not carry out any ground verification or site inspection exercise, which is clear from the response received by the applicant under Right to Information (RTI) Act from the Forest Department. Under RTI, the Forest Department provided report of only four plots in Arpora only, but none from Assagao, which proved prima facie that no site visit was made of the survey number in question and yet was excluded from the forest status.
7. It is mentioned in the application that the first three reports of the Review Committee were collectively placed before this Tribunal in O.A. No.478/2018 on 26.11.2021 in the proceedings of E.A. No.21/2021 filed by the applicant.
8. Further it is mentioned that in the meanwhile on 21.09.2021, a conversion sanad was granted by the Collector - respondent No.3 for conversion of survey numbers in question admeasuring 1750 sq.mtrs for the residential purpose with 60 FAR. The sanad records that the conversion has been recommended by the Mamlatdar of Bardez vide report dated 05.05.2021 and by the TCP vide report dated 15.06.2021 (i.e. immediately after the Review Committee excluded the area). However, there is no recommendation of the Forest Department recorded as the file was not sent to the said Department. The Collector was neither aware that the trees in the plot had been illegally felled nor the Forest Department had directed the replanting of forest trees so as to restore the forestry status of the plot. The sanad further incorrectly records that the survey numbers in question are not included in [NPJ] Page 4 of 22 the private forest identified by the Thomas Committee. The conversion sanad is annexed as Annexure-9.
9. It is mentioned that on 08.11.2021, the Town Planning Department - respondent No.4 granted technical clearance order for "proposed amalgamation of plots and construction of residential villas 1, 2, 3, 4 5 and swimming pool" in the said survey number. Copy of impugned TCP clearance order is annexed as Annexure-10.
10. It is further mentioned that on 19.01.2022, the Village Panchayat of Assagao - respondent No.5 granted a construction license for "proposed amalgamation of plots and construction of above mentioned residential villas along with swimming pools in Survey numbers in question. A copy of the approved plan is annexed as Annexure-11. Further it is mentioned that the applicant was entirely unaware of the permissions granted for development of the said area and came to know of it while developmental work was going on, towards the end of May, 2022 when the applicant was alerted by some local residents. The applicant visited the said site on 25.05.2022 and found that the work was going on, photographs of which have been annexed as Annexure-12 colly.
11. It is stated that the applicant immediately wrote to the Forest Department vide letter dated 31.05.2022 informing about the on-going work at the site and sought appropriate action to be taken. A copy of the said letter is annexed as Annexure-13. Thereafter, the applicant also moved the Hon'ble High Court at Goa by filing PIL Writ Petition No.25/2022 whereafter the developmental work of the property came to a halt. The respondent developers filed reply to the PIL Writ Petition. On hearing, the Hon'ble High Court, upon learning that the applicant had also challenged the Review Committee reports before this Tribunal in O.A. No.478/2018, felt that it would be more appropriate that the applicant challenges this construction before the NGT and directed accordingly vide order dated 03.10.2022, a copy of which is annexed as Annexure-2. Thereafter, the applicant filed the [NPJ] Page 5 of 22 present Original Application challenging the diversion of the forest area on the abovesaid survey numbers.
12. It is mentioned in the application that prior destruction of the forest on this plot has not been considered by the authorities and neither was the plot referred to the Forest Department prior to passing of the orders permitting development. In fact, it appears that there has been no consideration of the development proposals of the developers by the Forest Department at all. Further it is mentioned that Review Committee's reports are only interim reports, which cannot be relied upon by the authorities to start granting conversion sanads and development permissions especially in the light of the issues highlighted above, while the matter is subjudice before this Tribunal. Hence the above prayers are made.
13. This matter was first heard by us on 13.12.2022, on which date we had recorded that the prayer made in the present case hinges upon the fact as to whether Survey Nos.128/9 and 128/10 of Assagao village were identified as private forest or not, which according to the learned counsel for the applicant, was a matter to be decided in M.A. No.3/2023 filed in O.A. No.478/2018, which was listed for hearing on 15.12.2022. Therefore, it was held to be appropriate to hear the present Original Application along with said M.A. No.3/2023 and the Registry was accordingly directed.
14. The order-sheet reveals that the hearing in present Original Application was being done along with M.A. no.4/2023 in O.A. No.478/2018 and M.A. No.3/2023 (earlier O.A. no. 63/2022) in O.A. No.478/2018. Present O.A. and M.A. No.3/2023 in O.A. No.478/2018 were being heard together, but later-on, by our order dated 10.08.2023, we reserved the judgment in M.A. No.3/2023 after hearing the arguments of the parties and directed that the present O.A. and M.A. No.4/2023 would be heard separately after giving an opportunity of hearing to the parties.
15. We had passed the judgment in M.A. No.3/2023 in O.A. No.478/2018 on 12.09.2023, wherein it is recorded by us that M.A No.3/2023 was filed [NPJ] Page 6 of 22 with the prayers that the four interim reports, which had been filed by respondent Nos.1 to 3, should be quashed; the methodology adopted for identification and demarcation of the private forest should also be quashed; the survey numbers of Salvador-do-Mundo, which were identified as private forest under the NGT orders, be reinstated as private forests and likewise all the survey numbers of villages Dabolim, Chicalim, Sancoale and Cortalim be reinstated. In this judgment delivered in M.A. No.3/2023, we had framed following four issues:
"(i) Whether the present Application is time barred ?
(ii) Whether RC-II exceeded its mandate by undertaking review of forest areas finalized by Thomas and Araujo Committees ?
(iii) Whether the methodology adopted by RC-II was appropriate ?
(iv) What should be the methodology for finalization of the private forest and what should be its outer time limit ?"
16. We answered issue No.(i) in negative holding the application not time- barred and with respect to issue No.(ii), we had decided that Review Committee (RC-II) had not exceeded its mandate by undertaking review of forest areas finalized by Thomas and Araujo Committees. With respect to issue No.(iii), we held that having stated the methodology adopted by the Thomas and Araujo Committees and the RC-II Committee, we found that the methodology adopted by RC-II is a scientific methodology in keeping with the developments in the field of Forest Cover Map. We also found that it involves physical verification as well. Therefore, in our estimation, the methodology adopted by RC-II was found to be scientific one and that the demarcation of the private forest area done/being done was found to be appropriate. With respect to issue No.(iv), we had decided that in order to take extreme precaution that no-one suffers on account of errors in identification of the private forest area, the areas, which were finally identified as private forest area by the Thomas and Araujo Committees, if any area out of that is required to be excluded as per review being made by RC-II, the said area should be got [NPJ] Page 7 of 22 verified physically with respect to all three criteria laid down for determination of the private forest cited, which are as follows:
(i) 75% of the tree composition should be of forestry species;
(ii) The area should be contiguous to the Government Forest and if in isolation, the minimum area should be 5 ha.
(iii) Canopy density should not be less than 0.4
17. From the side of respondent Nos.6 and 7, reply-affidavit dated 12.12.2022 has been filed, wherein it is submitted that the prayers (a), (b) and c ) made in this O.A. do not fall within the realm of Schedule-I of the National Green Tribunal Act because the applicant under the garb of prayer (d) is invoking the jurisdiction of this Tribunal to seek quashing of the sanad granted by the District Collector, North Goa, the Technical Clearance granted to the answering respondents under the provisions of the Town and Country Planning Act and Construction License granted by the Village Panchayat of village Assagao under the Panchayat Raj Act. The panchanama is issued on misconception of facts. At the time of drawing of the same i.e. 31.10.2019, when the letter dated 07.05.2020 of the office of Deputy Conservator of Forest regarding alleged cutting of the trees by the answering respondents, the properties were not declared as forests, although they were provisionally identified as forests in Thomas Committee's report. Further it is submitted that it was within knowledge of the applicant that the Review Committee constituted by the State Government to review the Thomas Committee report had, after carrying out the necessary surveys and following the methodology and procedure required to be followed to determine whether property of the answering respondents was a forest or not, which procedure included the ground truthing as well. Now the applicant has falsely claimed that RC-II has not followed ground truthing. After submission of the Second Part of Report before this Tribunal, the same was uploaded by the Review Committee on its official website in which the property is question as delisted from the private [NPJ] Page 8 of 22 forest category by the Review Committee in June, 2021. The present application is filed on 22.10.2022, which is beyond the period of limitation. The prayer clause (d) is ex facie unsustainable. The survey numbers in question, in fact, do not qualify to be marked as forest as they do not fulfill the criteria prescribed by the Hon'ble Supreme Court in the case of T.N. Godavaram, followed by the Forest Department to identify the private forest in the State of Goa.
18. The applicant has filed affidavit-in-rejoinder dated 10.03.2023 wherein it is recorded that respondent Nos.6 and 7 have admitted that the subject properties were provisionally identified as forest in Thomas and Araujo Committee report, which was tasked with identifying private forests in an area of 5 Ha. or more, not being contiguous to Govt. Forests, in addition to the other criteria relating to tree composition and canopy density. Thomas Committee provisionally identified 16 survey numbers of Assagao village as private forest. Of these, survey nos.128, 129, 130, 132 and 133 form one patch with total plot area of about 69.59 hectares. The entire survey no.128 comprising 47 sub-divisions was provisionally identified as forest, excluding sub-division 14 only. It is shocking that all five survey numbers are excluded by the Review Committee i.e. Survey Nos.128 and 129 in June, 2021 (2nd interim report) and survey Nos.130, 132 and 133 in January, 2022 (4th interim report). The 4th interim report, in fact, mentions that survey nos.130, 132 and 133 meet all three criteria but they are not qualifying as per the FSI satellite maps and other objections. On the ground, however, the area is fully forested. The relevant extract of the 4th interim report of Review Committee is enclosed as Annexure-1 and Google Earth maps showing the contiguous forest area of Assagao village of the patch consisting of survey nos.128, 129, 130, 132 and 133 are enclosed as Annexure-2, colly. It is submitted by the applicant that it is wrongly stated by respondent Nos.6 and 7 that the exercise of identification of private forest has been completed with the judgment and order of this Tribunal in O.A. No.478/2018. The order dated [NPJ] Page 9 of 22 07.01.2021 passed in Execution Application No.26/2020 directed that the entire exercise of review of private forest by the Review Committee was to be completed within three months i.e. April, 2021. Owing to the severe delays in the completion of review exercise, a second Execution Application bearing no.E.A. 21/2021 came to be filed by the applicant and the Tribunal passed two further orders therein dated 30.11.2021 and 27.01.2022, directing for the final reports to be placed before the Tribunal. Copies of these orders are annexed as Annexure-3 colly. Further it is stated that this application has been filed within time pursuant to the liberty granted by the Hon'ble High Court vide order dated 03.10.2022. Hence, no delay has been committed in filing this Original Application.
19. The sur-rejoinder dated 13.03.2023 has been filed by respondent Nos.6 and 7 wherein it is submitted that while identifying the properties in its provisional report, Thomas Committee did not follow any procedure, as such properties identified by Thomas Committee were stated to be provisionally identified and as such they were subjected to review by the Review Committee which followed the procedure and accordingly opined on the properties in question. It is denied that survey nos.128, 129, 130, 132 and 133 of village Assagao form part of one patch with total area of 69.59 ha as alleged. Considering that survey No.128 was provisionally identified, the same was subjected to review and after following the due procedure, the same was identified as not fulfilling the criteria of a forest within the parameters framed by the State Government as submitted in Godavarman's case to qualify to be a forest. The property of the answering respondents was deleted by the Review Committee after following the due process of law, which was earlier followed by Sharma Committee and had come to the conclusion that the same was not a forest. The exercise of identification of private forest has been completed with the Judgment of this Tribunal in Original Application No.478 of 2018. In fact, the State Government has notified the areas adjudged to be forest in the judgment of this Tribunal rendered in O.A. No.478 of 2018 and [NPJ] Page 10 of 22 that Execution Application filed by the applicant is not tenable as Execution Application. It is denied that the application has been filed within time. The liberty granted by the Hon'ble High Court would not extend the period of limitation. In fact, the applicant had resorted to filing Writ Petition before the Hon'ble High Court of Bombay at Goa beyond the period of limitation prescribed under the Act.
20. Heard the learned counsel for the parties and perused the record.
21. Learned counsel for the applicant has drawn our attention to the order dated 03.10.2022 passed by the Hon'ble High Court in PIL Writ Petition No.25 of 2022, wherein it is recorded that the learned Advocate General as well as the learned counsel for the respondents submitted that since the NGT was seized of the matter, it would be appropriate for the Hon'ble High Court not to entertain the said Writ Petition but to relegate the applicant to NGT. It was stated that there was no basis for the apprehension expressed by Ms. Alvares because the main issue is about demarcation of the properties as forest. The issue of grant or refusal of conversion is only incidental or consequential. Therefore, the National Green Tribunal will have the necessary jurisdiction to look into the issues raised by the petitioner (present applicant). The learned senior counsel for respondent Nos.11 and 12 also submitted that the sanads which had then been challenged by the petitioner in the said writ petition can as well be challenged before the NGT because the main issue involved was about the identification of their properties as not being forest. Thereafter, the Hon'ble High Court has held that even in its judgment, since the NGT is seized with the main issue about identification of properties as forest lands, it is only appropriate that the petitioner, if chooses, should approach the NGT with the grievance raised in that petition. The apprehension expressed by Ms. Alvares has been substantially answered by learned Advocate General and learned counsel for the respondents and it was held that since the issue of conversion is merely incidental or ancillary to the main issue of identification of forest land, the NGT would have sufficient jurisdiction to look into or [NPJ] Page 11 of 22 examine the issues raised in the writ petition. In the last paragraph of the said order, it was recorded that all the contentions of the parties on merits would remain open except on the issue of maintainability of proceedings before the NGT.
22. Having drawn our attention to the above judgment, it is pointed out by the learned counsel for the applicant that pursuant to the said order of the Hon'ble High Court, the present Original Application has been filed and this Tribunal has jurisdiction to decide upon the sanad being illegal and the same is well within the power of this Tribunal to set aside the same, which is controverted by the learned counsel for respondent Nos.6 and 7, who submits that if the land was forest land, then only this Tribunal would have jurisdiction to decide about the sanad to be illegal. Therefore, again question arises whether the land is found to be a forest or not.
23. Learned counsel for respondent Nos.6 and 7 has drawn our attention to pages 46 and 47, which is the sanad in question, which is prayed to be quashed by the applicant. In the said sanad, under the remarks, at serial no.4, it is recorded that the survey Nos.128/9 and 128/10 of Assagao village are not included in the private forest identified by Sawant, Karapurkar and Thomas Committee. Besides this, it is pointed by the learned counsel for respondent Nos.6 and 7 that this land has been finally deleted from the provisionally identified private forest land by the RC-II (Review Committee-II). He has also argued that all four interim reports were placed before this Tribunal in a challenge made by the applicant in M.A. No.3/2023 in O.A. No.478/2018, wherein this Tribunal has already upheld these reports, therefore, the findings which have been given by the RC-II after having been tested from all angles, including the procedure adopted, have been found to be correct. Therefore, this Tribunal cannot review its own decision. The applicant is seeking review of the said judgment under the garb of present application. Survey Nos.128/9 and 128/10 were provisionally identified as private forest by Thomas and Araujo Committee. The same was reviewed by [NPJ] Page 12 of 22 RC-II. The report of Thomas and Araujo Committee is annexed at pages 31 to 33 of the paper-book and at page 33, in tabular form, survey No.128 as a whole along with other survey nos. i.e. 59, 61, 62, 63, 67, 68, 69, 74, 76, 101, 108, 129, 130, 132 and 133 of village Assagao, are shown to have an area of 10 Ha in toto, out of these survey numbers, Survey No.128/14 is excluded, which were yet to be surveyed. For a finding whether these survey numbers were to be finally treated forest area or not, RC-II was constituted, report of which is annexed at pages 168 to 197 of the paper-book , wherein at page 186, survey No.128 of village Assagao is considered and it is recorded as "survey number does not qualify the criteria of private forests".
24. It was also argued by learned counsel for respondent Nos.6 and 7 that out of three criteria laid down by the State Government, the most important criteria which needs to be fulfilled is that the area should be contiguous to the Government Forest and if in isolation, the minimum area should be 5 ha and having drawn our attention to it, it is argued that in the present case the applicant has failed to prove that the area of survey nos.128/9 and 128/10 is minimum 5 Ha. Against this argument, learned counsel for the applicant has argued that the total area of survey nos. 59, 61, 62, 63, 67, 68, 69, 74, 76, 101, 108, 129, 130, 132 and 133, including survey No.128 of village Assagao, all form patch of forest land, area of which is recorded as 10 Ha and it is argued that in paragraph 4 of their affidavit dated 10.03.2023, it is submitted by the applicant that 16 survey numbers of village Assagao were identified as private forest by the Thomas Committee, out of which, Survey Nos.128, 129, 130, 132 and 133 form part of one patch with total plot area of 69.59 Ha. If from this area, the entire area of 10 Ha of above survey numbers of the entire patch is deducted, it will be more than 55 ha and then this survey number in question will qualify to be identified as forest area. We do not find force in this argument because as per the applicant's own document, which is annexed at page 268 of the paper-book, area of survey no.130 is shown as 8.43 ha, for survey no.132, it is shown as 5.93 ha and for survey no.133, it is [NPJ] Page 13 of 22 shown as 0.083 ha, total of which comes to 14.443 ha, while it has been mentioned in paragraph no.3 of the affidavit dated 10.03.2023 that the area of survey nos.128, 129, 130, 132 and 133 form one patch of total 69.59 ha. Therefore, if an area of 14.443 ha is deducted from area of 69.59 ha, it would be an area of 55.15 ha, which would be area of survey nos.128 and 129. We also fail to understand as to why this area of 69.59 ha is given in the said affidavit to be the area of survey nos.128, 129, 130, 132 and 133. Broadly speaking, if we go by Thomas and Araujo Committee report, we find that the area of survey numbers i.e. 59, 61, 62, 63, 67, 68, 69, 74, 76, 101, 108, 129, 130, 132 and 133, is shown as 10 Ha, which includes survey no.128 also and out of that, how could it be possible that survey nos.128, 129, 130, 132 and 133 would form total area of 69.59 ha because area of 69.59 ha is much larger area than 10 ha. Therefore, we find extreme ambiguity in the argument of learned counsel for the applicant.
25. Next, we have to see that criteria no. (ii) for assessing the land to be private forest, says the land has to be contiguous to the Government Forest and if in isolation, it has to be minimum 5 ha. Now, we do not find any evidence produced from the side of the applicant that survey nos.128/9 and 128/10 are contiguous to the Government Forest and if the same is in isolation, it has to be more than 5 ha. In sanad also, the area of this land is shown to be 1750 sq.mtrs., which will be much less than one ha. Therefore, criteria also does not stand fulfilled in the present matter to treat this patch of land to be a forest land.
26. Learned counsel for the applicant has relied upon a judgment of the Hon'ble Supreme Court in the case of Tata Housing Development Co.Ltd. and another Vs. Goa Foundation and others; (2003)11 SCC 714, wherein reliance is placed on paragraph Nos.11 and 15 thereof, which read as follows:
"11. Thus question which falls for consideration of this Court is whether the High Court was justified in accepting the Third Interim Report of Sawant Committee and allowing the writ application on the basis thereof. For deciding this question, it would be necessary to refer to the Second interim Report of Sawant Committee in which it has laid down three [NPJ] Page 14 of 22 criteria for classifying any land as "forest". Relevant portions of the said Report run thus:
"After the formation of the committee, it was first decided to get the Forest cover through NRSA, Hyderabad but seeing the time involved and nature of interpretation, it was decided to carry out the exercise through physical verification by the departmental staff only. Nature of interpretation means the satellite data gives the natural green cover which includes most of the plantation/seasonal crops such as cashew, coconut, arecanut etc. For the purpose of classifying "Forest" such growth can not be considered. The Committee has taken the stand that for considering any area as forest:-
(i) 75% of its composition should be forestry species.
(ii) The area should be contiguous to government forest and if in isolation the minimum area should be 5 hectares.
(iii) The canopy density should not be less than 0.4.
The above criteria which was in existence with the Forest Department, Government of Goa has been approved by the Government of Goa.
Based on the satellite imageries, toposheets, the areas outside the Govt. Forests have been marked on the map and the Forest officials have done the physical verification of such areas applying the above criteria.
The Committee has procured the maps of 1978 from the Town and Country Planning Department which has been prepared based on the aerial photographs of 1960 and toposheets of 1960. In these maps Natural Green Cover has been shown but again it doss not either speak about the density or the species composition.......This Natural Green Cover (Pvt.) outside the Govt. Forests being very high compared to the figure likely to be arrived at by the committee finally under the classification of Private Forests, it is obvious as these private green cover includes all types of vegetation and of all density class including cashew crop which may not be fitted into the criteria taken for identification of private forests.
"15. In its Second Interim Report Sawant Committee categorically rejected satellite imagery and toposheets as one of the criterions for identifying a forest as the same would at best show natural green cover which, according to the Committee, would include plantations, seasonal crops, etc. and the same cannot be a relevant consideration for classifying a forest, as such the Committee in its report relating to the appellants' plot was not justified in taking the same into consideration. Likewise, in its Second Interim Report, the Committee had rejected nature reserve green belt map as a relevant consideration for holding a land to be forest on the ground that the same would show all types of vegetation including cashew crops etc., as such in the Third interim Report the Committee was not justified in placing reliance upon the Report of the Sub-Committee for maintaining Nature Reserve around the city. So far as the third criterion that weighed with the Committee is concerned, it may be stated that enumeration of the plants in a 50 metre belt adjoining the appellants' plot on three sides was irrelevant, especially when the Committee did not find that 75% of the plants, in the 50 meter wide belt adjoining the boundaries of the appellants' land, were of forestry species."[NPJ] Page 15 of 22
27. Having relied on the above judgment, it is tried to emphasize by the learned counsel for the applicant that the Hon'ble Supreme Court in above judgment has not considered the satellite imaggery to be a sound proof of assessing an area to be a forest or not and therefore, the learned counsel submits that in the case in hand, survey numbers in question ought to have been physically verified by going to the spot. We have already considered at length the matter while deciding M.A. No.3/2023 and have found the methodology adopted by RC-II to be perfect. Particularly in respect of the provisionally identified forest areas by Thomas and Araujo Committee we have also held by way of precaution that if any area is going to be finally identified as forest area, then physical verification must be done so that no one suffers by any error.
28. Learned counsel for respondent Nos.6 and 7 has placed reliance on the judgment dated 24.01.2024, delivered in Writ Petition (Civil) No.202 of 1995 in the case of T.N. Godavarman Thirumulpad Vs. Union of India & Ors.; 2024 SCC OnLine SC 65 and reliance is placed particularly on paragraph Nos.65 and 68 to 72 thereof, which read as under:
"65. In fact, the process of physical demarcation of such forests in the State of Goa seems to have attained finality by virtue of the reports. The Final Report prepared by Deep Shikha Committee as also known as Private Forest Review Report identified 46.11 sq. km. of area as private forest which has been accepted by the Tribunal in OA No.479 of 2018 vide Order dated 18.08.2020 and the appeal filed by the State of Goa against the said order in Civil Appeal No.01 of 2021 which has been dismissed by this Court by order dated 01.02.2021. In other words, the issue relating to identification and demarcation of private forests in the State of Goa has attained finality on three criteria as indicated herein supra pertaining to forest tree composition, contiguous forest land and minimum area should be 5 (five) hectares and canopy density should not be less than 0.4. In the teeth of the afore-stated facts and the orders passed by the Tribunals as affirmed by this Court, the State of Goa has issued a gazette notification on 22.09.2022 notifying 46.11 sq. km. as private forest."
68. In fact, para 1.3 of the report published by FSI in 2017, the distinction in the term „Forest Cover‟ and „Forest Area‟ has been stated as under:
"The term "Forest Cover" as used in Indian State of Forest Report refers to all lands more than one hectare in area with a tree canopy of more than 10%, irrespective of land use, ownership and legal status. It may include even orchards, bamboo, palm etc and is assessed through remote sensing. On the other hand, the term 'Recorded Forest Area' or 'Forest Area" refers to all the geographical areas recorded as 'Forests' in government records. Recorded forest [NPJ] Page 16 of 22 area mainly consists of Reserved Forests (RF) and Protected Forests (PF), which have been notified under the provisions of Indian Forest Act, 1927 or its counterpart State Acts. Beside RFs and PFs, the recorded forest area may also include all such areas, which have been recorded as forests in the revenue records or have been constituted so under any state Act or local laws.
Recorded Forest area may have blank areas with tree density less than 10 % such as degraded lands, wetlands, rivers, riverbeds, creeks in mangroves, snow covered areas, glaciers and other snow covered .areas, alpine pastures, cold deserts, grasslands etc. As per the definition of forest cover, such areas are excluded from the assessment of the forest cover. On the other hand, there are areas outside the recorded forests with tree patches of one hectare and more with canopy density above 10%. For example plantations on the private community lands, road, rail and canal sides, rubber, tea and coffee plantations etc. Such areas also constitute forest cover and are li included in the forest cover assessment.
69. Upon examining the FSI Report, a clear distinction emerges between „Forest Cover‟ and „Recorded Forest Area.‟ „Forest Cover‟ encompasses all lands exceeding 1 (one) hectare in size with a tree canopy exceeding 10%, regardless of land use, ownership, and legal status. This category may encompass various features like orchards, bamboo groves, palm plantations, etc., and is evaluated through remote sensing techniques. Conversely, the term „Recorded Forest Area‟ or „Forest Area‟ refers to all geographic areas officially designated as „Forests‟ in government records. Recorded forest areas primarily include Reserved Forests (RF) and Protected Forests (PF), which are notified under the provisions of the Indian Forest Act, 1927, or equivalent State Acts. In addition to RFs and PFs, the recorded forest area may also cover regions recorded as forests in revenue records or established as such under any State Act or local laws.
70. The State of Goa is one of the smallest States in the country having geographical area of 3,702 sq. km. As per the India State of Forest Report, 2017 published by FSI, the forest cover of Goa is 2,229 sq. km. which is 60.21% of the total geographical area of the State. It is three times higher than the National Forest Cover which is 21.54%. If the tree cover of the State is included which is 323 sq. km. the total forest and tree cover of Goa works out to be 2,552 sq. km. which is 68.94% of the geographical area of the State. As rightly pointed out by Mr. Kohli, learned Senior Counsel appearing for the State of Goa the change of existing criteria in determining the deemed forest would have a negative impact on the conservation measures being undertaken hitherto and the reasons enumerated in paragraph 15 could support the said contentions. It reads as thus: -
(i) All open forest area (10% to 40 % canopy density} under private ownership shall be identified as deemed forest in the state of Goa, whereas most of this open forest area is habitation area having trees planted traditionally by the people around. their houses for meeting their daily needs of food, fruits, firewood, small timber, agriculture implement etc.
(ii) If a person wants to plant 10 trees preferred by him like Mango, Tamarind, teak, jackfruit, chickoo, kathal, etc in his own land of one hectare for the above mentioned needs it will cross the threshold of 0.1 canopy density and be declared as private forests.[NPJ] Page 17 of 22
(iii) It will be a huge disincentive for the small land owners, whose lands will fall under private forest and they will be compelled to seek approval under FCA, 1980 from the Central Government for every parcel of land which may discourage the people of Goa to plant, protect and conserve trees on their lands. Such land owners would lose their right to use their own land for their bona fide needs in view of stringent conditions as laid down in various provisions of the FCA, 1980.
(iv) This criteria being independent of ownership, will also attract almost all of the government, private office and residential complexes, educational and other institutions since one hectare criteria with 0.1 canopy density will be applicable to the entire state of Goa.
(v) The people, who have cleared the forest / trees on their land before 1996, would appear to be in advantageous position in the eyes of private forest owners.
(vi) It may give a wrong message to private land holders to not only destroy existing forests/ tree vegetation but there would be no incentive for planting trees or helping in their conservation in ·. view of the restrictions being placed on the usage of their own land.
(vii) As per order dated 12.12.1996 passed by this Hon‟ble Court in T. N. Godavarman Vs Union of India, W.P No.202/1995, Govt.
of Goa initiated the process of identification of private forests in true spirit following the existing criteria. It is being confirmed using satellite imageries and ground verification by a Review Committee at present. These criteria as mentioned in above para number 4 were formulated by State of Goa way back in 1991 based on the High Court of Bombay order in Writ petition No.162/1987, Shivanand Salgaonkar Vs. Tree officer & others. And it has taken almost two decades to identify and demarcate this private forest area on the ground, which is still not complete and is being done presently by the Review Committee. Reducing the criteria to 0.1 Canopy Density and 1 Hectare will again restart the process to bring large number of private lands with few trees under private forests thereby adversely impacting even the small land owners who have protected trees in good spirit.
(viii) It will be a huge burden on small land owners (i) to find alternative land for Compensatory Afforestation and (ii) to pay Net Present Value (NPV) for his own small bonafide needs such as extension/ construction of even one room use of even small part of his land, and for planting of trees by removal of existing trees on his own land under CA.
(ix) It will put serious pressure on available land for development of the State and bonafide aspirations of its people including conservation imperatives.
(x) In the State of Goa, geographically available land of 3702 Sq.
Km has been divided into Eco Zone 1, Eco Zone 2 and Developable Zones, under the Regional Plan Goa 2021 under the Town and Country Planning Act, 1974. In so far as Eco Zone- 1 is concerned, it comprises Forest (Protected/Reserved/National Park/Wildlife Sanctuaries), Mangrove Forest, identified Private Forests till 2008, Water Bodies/nallas/ponds and paddy fields/khazan lands. Eco Zone 1 constitutes 50.94 % of the geographical area of the State and is completely a „No Development Zone‟. In so far as Eco Zone-2 is concerned, it comprises orchards, natura! cover, cultivable land, salt pans and fish farms/mud flats. Eco Zone- [NPJ] Page 18 of 22 2 constitutes 31.42% of the geographical area of the State where development is restricted to the land use which is completely regulated. Together Eco Zone 1 & 2 constitutes 82.37% of the geographical area of the State leaving behind 17.63% of land as Developable Zones in which also development is regulated and restricted. A copy of the forest cover map of state of Goa as per India State of Forest Report, 2017, FSI Dehradun is annexed hereto and marked as Annexure - B.
71. It is necessary to mention at this juncture, the application of criteria cannot be universally standardized across the country, as it is contingent upon the specific geography and geographical conditions prevalent in each State. Each State possesses its distinctive geographical features, and as a result, the criteria may vary from one State to another. In this regard, it would be apt to consider the criteria/parameters formulated by various States to identify the private forest as indicated in the affidavit filed on behalf of the respondent No. 1, 4 to 8 dated 07.05.2019 are as under:
[NPJ] Page 19 of 22
72. In view of the above, we summarise our discussion as under:
i. Firstly, the existing criteria for identification of private forests in the State of Goa are adequate and valid, hence, they require no alteration. The Ministry of Environment, Forest & Climate Change guidelines, as well as the Scheduled Tribes & other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, are clear and unambiguous, as they have exempted the application of the Forest Conservation Act, 1980, on areas that are less than 1 hectare and where not more than 75 trees have to be cut. Reference can be made to the communication dated 03.01.2005 of MoEF. Further, it can be noticed if the criteria i.e., the canopy density of 0.4 and minimum area of 5 ha is reduced to 0.1 and 1 ha as contended, respectively, it will result in the plantations of coconut, orchards, bamboo, palm, supari, cashew, etc., grown by farmers on their private lands into the category of „private forest‟. The effect would be that even for a minor development on the concerned land, the permission of the Government under the FCA 1980, for the landholders, would become indispensable. It would be of necessity [NPJ] Page 20 of 22 to note that none of the States have adopted the criteria proposed by the appellant, namely the 0.1 density criteria, as it would result in opening a pandora‟s box, and it would result in all the States undertaking the task of reassessing the forest area all over again which has since been settled on the basis of existing criteria.
ii. Secondly, it has been noticed that appellant is attempting to take a contrary stand on the issue of criteria for the identification of forests, namely, suggesting a change in criteria for the identification of deemed forests under private ownership. On the one hand, the appellant is challenging the criteria adopted by the Sawant and Karapurkar Committees for the identification of inter alia private forests and on the other hand has relied on the same criteria adopted by these two committees for the identification of forests, including private forests, before the Tribunal, as has been observed by the Tribunal in its judgement rendered in O.A. No.22 of 2013 on 22/01/2015 in the matter of Goa Foundation v Union of India & Others and in O.A. No.479 of 2018 in the matter of Goa Foundation v State of Goa & Others. Thus, appellant cannot be permitted to approbate and reprobate. The appellant has also failed in its endeavour to have the second interim report of the Sawant Committee and the criteria laid down thereunder to be revisited in Tata Housing (supra) and before the Tribunal in Nisarga (supra). In fact, appellant and another NGO had argued before the Tribunal in Nisarga (supra) that the criteria ought to be 10% canopy density, which did not find favour with the Tribunal in the teeth of Tata Housing (supra), and said order passed in Nisarga (O.A. No.19 of 2013) has attained finality.
iii. Thirdly, this Court vide its order dated 12.12.1996 had expressly delegated the task of identifying forest areas to Expert Committees to be constituted by State Governments, thereby recognising that there can be no uniform criteria for such identification across the country"
29. Based on above, we find that the Hon'ble Supreme Court has upheld the methodology adopted for identifying the private forests by RC-II which also involved use of satellite imagery and ground truthing. Therefore, argument of the learned counsel for the applicant that the physical verification must be made of the site in question in order to determine whether the same qualifies for the forest or not, does not appear to be justified because RC-II has adopted scientific methodology to arrive on the said decision, which is based on Satellite imagery. We find that physical verification has also been done in sample cases.
30. We are convinced by the argument of learned counsel for respondent Nos.6 and 7 that the present application appears to be not maintainable in view of our decision in M.A. No.3/2023, in which we have already considered [NPJ] Page 21 of 22 the second interim report wherein present survey numbers were also involved and the same has been upheld by us.
31. In the result, the Original Application is dismissed.
32. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM March 19, 2024 O.A. No.98 OF 2022(WZ) npj [NPJ] Page 22 of 22