National Green Tribunal
Mr.Y.V. Pratap Reddy Son Of. Y.V. Naga ... vs The Union Of India, Rep By Its Secretary ... on 19 April, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 09 of 2017 (SZ)
IN THE MATTER OF
Mr. Y.V. Pratap Reddy
S/o Y.V. Naga Reddy
No. 1-137, Reddyvari Street, Thondur, Cuddapah
Andhra Pradesh- 516 401.
....Applicant(s)
Versus
Union of India
Rep by its Secretary
Ministry of Environment and Forests, New Delhi and Ors.
... Respondent(s)
For Applicant(s): Mr. Sai Sathya Jith for
M/s. Taaurs Associates.
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1
Ms. Madhuri Donti Reddy for R2 to R5
Mr. Akula Kishan for R6 and R7
Mr. K. Muralidharan and Mr. S.P. Vijayaragavan for R8
Mr. Rajinish Pathiyil for R9
Mr. Ritwick Dutta, Amicus Curiae.
Judgment Pronounced on: 19th April 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
ORDER
Judgment pronounced through Video Conference. The original application is disposed of with directions vide separate Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.09/2017 (SZ) 19th April 2022. Mn.
Page 1 of 66Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI (Through Video Conference) Original Application No. 09 of 2017 (SZ) IN THE MATTER OF Mr. Y.V. Pratap Reddy S/o Y.V. Naga Reddy No. 1-137, Reddyvari Street, Thondur, Cuddapah Andhra Pradesh- 516 401.
....Applicant(s) Versus
1. Union of India Rep by its Secretary Ministry of Environment and Forests, New Delhi.
2. The State of Andhra Pradesh Rep by its Secretary Department of Environment, Forests, Science and Technology, Hyderabad
3. The District Collector Office Collectorate, Kadappah
4. The Revenue Divisional Officer Jammalamadugu, YSR Kadapa District
5. The Tahsildar, Thondur Mandal, YSR District
6. The Chief Conservator of Forests, Kurnool Circle, Kurnool
7. The Divisional Forest Officer, Prodattur (WL), Prodatttur
8. The New and Renewable Energy Development Corporation of Andhra Pradesh Rep by its Managing Director 207/2, Pisgah Compex, Nampally, Hyderabad 500 001
9. M/s Esteem Energy Private Limited Rep by its Managing Director Ground Floor, 17B, Vengal Rao Nagar, Hyderabad ... Respondent(s) Page 2 of 66 For Applicant(s): Mr. Sai Sathya Jith for M/s. Taaurs Associates.
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1 Ms. Madhuri Donti Reddy for R2 to R5 Mr. Akula Kishan for R6 and R7 Mr. K. Muralidharan and Mr. S.P. Vijayaragavan for R8 Mr. Rajinish Pathiyil for R9 Mr. Ritwick Dutta, Amicus Curiae.
Judgment Reserved on: 13th December 2021.
Judgment Pronounced on: 19th April 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgement is allowed to be published on the Internet - Yes/No Whether the Judgement is to be published in the All India NGT Reporter - Yes/No JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member.
1. The above application was filed by the applicant alleging that 8th and 9th respondents have established their wind mill project in Sy.No.1036/1 sub divided as Sy.No.1174 to 1185 of Mallela Village and in Sy.No.1 sub divided as Sy. Nos. 506 to 509 of Udavagandla Village, Thondur Mandal, Y.S.R. District having extent of 40 acres in violation of Forest (Conservation) Act, 1980.
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2. According to the applicant, he is public spirited person interested in protecting environment and also an agriculturist by profession. The project was proposed inside the forest area without obtaining any permission from the authorities. Apart from laying roads, huge area of forest land was cleared to make space for the entire circumference of the wind mills.
3. The establishment of wind mills in that area will have great impact on forest activities and harmful to the birds and will have impact on the migratory habits of the birds. Huge areas measuring several acres of forest area lying in the villages of Mallela and Udavagandla controlled by the forest department. These land were classified and notified as "Reserved Forest"
bringing together the lands under the control of the forest department. They were divided as "Mallela North Forest Reserve" and "Mallela South Forest Reserve". The project area lies in between the north and south forest reserve more particularly in S. No. 1036/1 of Mallela Village (now sub-divided as Sy. No. 1174 to 1185) and S. No. 1 of Udavagndle village (now sub-divided as Sy. No. 506 to 509). Even though the project survey numbers were not included in the reserve forest area, they continued to be included as a forest area in the government records.
4. During January, 2015, the District Collector, Kadappa had allotted lands mentioned above totalling an extent of 40 acres to the New & Renewable Energy Development Corporation of Andhra Pradesh and developer M/s Esteem Energy (P) Ltd., Hyderabad on a lease basis for installation of 16 winds mills to generate 25.92 MW of electricity. Thereafter, the District Forest Officer, Proddatur by his letter dated 12.03.2015 had also granted No Objection Certificate for the said project. Thereafter, the sub-division of Sy. Page 4 of 66 Nos. were carried out to form 16 sub-divided plots in two villages each measuring 2-50 acres for the installation of 16 wind mills. Presently 12 wind mills have been erected and remaining 4 are to be installed shortly by the manner in which the works being carried on at the project site.
5. One Mr. Sreenivasulu Reddy and two others filed Writ Petition in the nature of PIL opposing the present project as W.P. No. 273 of 2015 which came to be dismissed as withdrawn. Later another PIL was filed as W.P. No. 14 of 2016 which was disposed with a direction to file petition before this Hon‟ble Tribunal within a period of two weeks. But no application was filed by those writ petitioners and a complaint was filed before the Lokayuktha.
6. The cases against the projects filed were not argued by any petitioner, especially with regard to the impact on forest area. There was interim order passed in W.P. No. 14 of 2016 directing the project proponent to stop work of laying of road inside the forest area which was also not complied with. As an off-shoot of facing legal consequences, a series of proceedings were made by the forest officials directing the authorities to cancel the lease granted to the project by stating that the said land is a forest area and the project had commenced in violation of law. But no action was taken. As per the Pattadar Adangal (Annexure-1) of Sy. No. 1036/1, Mallela village classifies the land as Forest land. The said record also records the lands as fit for cultivation with pattadhar being reflected as forest reserve. Further ROR document (Annexure-2) also records the land as forest reserve. Further, the re-survey and re-settlement register of the village Mallela (Annexure-3) also records the project land as forest reserve. Similar records reflect the status of Page 5 of 66 land as a hill area in Sy. No. 1 of the Udavangdla Village evidenced by Annexure-4A.
7. The Chief Conservator of Forest had ordered the cancellation of the orders of the Thasildhar recommending for grant of lease in forest reserve lands for establishing the wind mills on 16.11.2015 based on the finding that the same amounts to violation of Forest (Conservation) Act, 1980. As there was no response for the said communication a reminder letter was sent to the Collector and District Magistrate, Kadappa to cancel lease and also to take action against the Tahsildar, Thondur vide order dated 04.12.2015 evidenced by annexure-4.
8. On 29.02.2016, the Chief Conservator of Forests, Kurnool Circle had communicated to the Divisional Forest Officer, Proddatur (Annexure-5) seeking a report as to whether the NOC granted to the project has been already cancelled along with a report on the action taken against the concerned persons. As there had been no action taken on the same, further proceedings as per Annexure-6 and Annexure-7 was sent seeking for cancellation of NOC and also to take action against the concerned for violating Section 2 of the Forest (Conservation) Act, 1980.
9. The Divisional Forest Officer, Proddatur (WL) Division had communicated to the Revenue Divisional Officer, Jammalamadugu on 12.01.2016 evidenced by annexure-8 stating that on verification, the project land was found to be classified as forest/forest reserve and attracts the Forest (Conservation) Act, 1980. They required for cancellation of permission given to the project proponent and also to take action as per Water, Land and Trees Act. Since no action was taken annexure- 9 to 11 reminders were sent reiterating the Page 6 of 66 order to cancel the NOC granted to the project and also to take action against them.
10. With respect of laying of roads inside the forest area vide communication to the project proponent dated 18.01.2016 evidenced by Annexure-12, the Tahsildar, Thondru Mandal observed that "it is fact that you have not obtained any permission from Government. In this connection you are hereby directed to immediately stop laying new road and explain as to why a new road is being laid without obtaining any permission." Despite the clear finding of violation of law, no action was taken till date by the authorities. The installation of wind mills in forest area is also without permission from the Ministry of Non-Conventional Energy Sources, Government of India as required by the regulations of the MoEF&CC. Since, no action was taken the applicant filed the application seeking following interim as well as final reliefs:
―Interim Relief:
A. Directing respondent (9) to not continue operating the wind mills that were installed without mandatory permissions. B. Directing respondent (9) to not continue using the roads that were laid illegally without permissions.
C. Injuncting respondent (9) from laying of any new road, clearing of forest area or installing additional wind mill inside the forest area.
D. Directing respondents (3) to (7) to assess the damage caused to the forest land.
E. And pass such further order or orders as may be fit, proper and necessary in the facts and circumstances of the case. Main Prayer a. Declaring the installation of wind mills in Sy.No.1036/1 sub divided as Sy.No.1174 to 1185, Mallela Village and proposed installation of 4 Nos. Of wind mills in Sy.No.1 sub divided as Page 7 of 66 Sy.Nos. 506 to 509, Udavagandla Village, Thondur Mandal, Y.S.R. District in a total extent of 40 acres as illegal and b. Direct the respondents to demolish and remove the wind mills installed illegally without mandatory clearance under Section 2 of the Forest Conservation Act and restore the area to its pristine nature.
c. Direct the respondents to remove the access road laid inside the forest area illegally and restore the lands to its pristine nature. d. Direct the respondents to remediate the project area and restore to its original pristine nature.
e. Direct the respondent No.9 to pay exemplary cost for executing the project by clearing of forest lands and felling of trees without permission under the Forest (Conservation) Act.
f. Direct the respondents to initiate prosecution proceedings against the respondent No.5 & 7 for permitting and respondent No.9 for executing the project without prior permission under Section 2 of Forest (Conservation) Act.
g. Direct the respondents to carry on compensatory afforestation in the site and outside the area in the ratio of 1:100 for the felling of trees and pass such further or other orders in the interest of justice.‖
11. 1st Respondent-Ministry of Environment, Forests and Climate Change filed counter affidavit contending that as per the provisions of Forest (Conservation) Act, 1980 prior approval of Central Government is required for diversion of forest land for any non-forestry purpose. Any use of forest land for non-forestry purpose without obtaining prior approval of Central Government under Section (ii) of the Forest Act amounts to violation of Forest (Conservation) Act, 1980.
12. The answering respondent had not accorded any permission to the project in question in the present application. The Regional Office (South Eastern Zone), Chennai of MoEF&CC vide letter no. F(C)A/12.7/001/AP/NGT/ Page 8 of 66 2017 dated 24.04.2017 has requested the State Government of Andhra Pradesh to furnish the factual report on the legal status of the land in the instant case and request to inform the details regarding violation of Forest (Conservation) Act, 1980, if any, evidenced by annexure-I produced along with the counter affidavit.
13. Further, again by their letter dated 7-53/2017-FC dated 01.05.2017 requested the Government of Andhra Pradesh to enquire into the matter and submit a detailed report pertaining to the alleged violations raised in the present application to the APCCF(C), Regional Office, Chennai along with a copy to the MoEF&CC at the earliest and to stop the wind mills immediately if they have been installed on forest land without obtaining approval under Forest (Conservation) Act, 1980 and initiate appropriate action against the erring officials as per the existing legal provisions and rules applicable including the violation of Forest (Conservation) Act, 1980 evidenced by annexure-II produced along with counter.
14. They further submitted that after receipt of the factual report from the State Government, the details will be submitted before the Hon‟ble Tribunal for necessary action by the Government of India as per the provisions of the Forest (Conservation) Act, 1980. So, they prayed for passing appropriate orders in terms of their contentions.
15. 5th respondent filed counter affidavit on their behalf and on behalf of 3rd respondent as well. It was contended therein, that long time back, under Madras Forest Act, the then, Government of Madras State formed Mallela North Forest Reserve and Mallela South Forest Reserve in Mallela Village of Thondur mandal after selecting certain suitable lands from among the vast Page 9 of 66 extents of Government lands then available. These Reserve forests were also notified under the Madras Forest Act, as such, they are official reserve forests vested under the control of the Forest Department. While forming above reserve forests, a huge chunk of Government land adjoining the reserve forests measuring an extent of 2163.00 acres, which was barren, hilly, rocky, unfertile and waste land were not considered for inclusion in the reserve forests as it was found unsuitable to be included as forest area.
This left over land has rock sheets underneath and all soil was eroded and hence virtually no trees grew in the area except only some spiny bushes. There were no commercially viable minerals in the land. Due to its physiological features, the left out land could never be termed as forest.
16. Later on, the left over 2163.00 acres of land was included in two revenue villages by name Mallela and Udavagandla Renvenue village of Thondur Mandal. Out of this land, 159.00 acres of land lies in Mallela Revenue village in Sy. No. 1036/1 and the rest of the land i.e. 595.00 acres is in Sy. No. 1 of Udavagandla Revenue Village. These lands were standardised as Government lands during resurvey and resettlement. The lands are vested with the Revenue Department as Government lands and the Forest Department has no authority over them as they are not included in the notified reserve forest. The above 2163.00 acres of land is single bit of land with the same physical features but included in two different villages with two different classifications.
17. At the time of Resurvey and resettlement, 1568.00 acres of land included in Mallela village was mentioned as forest reserve Poramboke land. Similarly, the waste land of 595.00 acres in Sy. No. 1 included in Udavagandla Village Page 10 of 66 is classified as hill Poramboke land. The same land with same geological features is differently and irrationally classified in two villages as mentioned above. These lands were never classified as such under any Forest Act or Rules or Guidelines or under any scientific methods as directed by the Government. These lands were unintentionally and were casually classified without any reference to their actual physical features as forest reserve but in fact it was not forest land.
18. There is difference between reserve forest and forest reserve. Reserve forest is a notified forest under the Forest (Conservation) Act, 1980. While the forest reserve is a Government controlled land kept as reserve in revenue records during resurvey and resettlement and it is not actually a forest. Based on the requirement, the Government can change its classification to any type of land and use it accordingly.
19. Few years back, the New and Renewable Energy Development Corporation of Andhra Pradesh, which was owned and controlled by Government of Andhra Pradesh installed an instrument called wind mast in the above bits of waste lands in Mallela and Udavgandla villages to study the wind velocity for setting up of wind mills for generating wind energy. During their study it was convinced that the land was suitable for setting up wind mills for generating electricity. As such the NREDC of Andhra Pradesh in its two letters dated 03.01.2015 requested the District Collector of Kadappa to allot 40 acres of land in the above land for setting up wind mills for generating 25.90 MW of electricity. The NREDCAP requested to allot the land in terms of G.O. Ms. No. 517 dated 14.09.2012 jointly in the name of NREDCAP and also in the name of the Developer by name M/s Esteem Page 11 of 66 Energy (P) Ltd, Hyderabad. The Assistant Director of Mines and Geology, Yerranguntla was sought to examine the area and confirm whether any valuable minerals are existing in the land. In his letter dated 28.01.2015, the Assistant Director and M&G reported that there were no economically viable minerals were deposited in the land.
20. The Forest Department was also requested to inform whether the land is included in their Reserve Forest or not and on that basis, the Forest Range Officer, Muddanur inspected the lands along with the Tahsildar, Thondur and his staff and sent a report to the DFO, Proddatur and then, DFO, Proddatur in his letter dated 12.03.20215 issued NOC, stating that there is no objection for the lease of the land, as it did not fall under any Reserve Forest or Wildlife Sanctuary, National Parks and other important sites. The DFO never mentioned that there exists a forest in the proposed lease land and tree growth would affect, if lease is granted and there is no danger of any deforestation. In his NOC, he did not mention that the lease would violate the provisions of the Forest Act. Since there is no objection either from the Department of Mines and Geology or from the Forest Department, the land in Sy. No.1036/1 of Mallela Village was subdivided into 12 new survey numbers from Sy. No.1174 to 1185, each measuring 2-50 Acres and the land in Sy. No.1 of Udavangandla Village is subdivided into four new survey numbers from Sy. No.506 to 509 each measuring 2-50 Acres and these 12 + 4 = 16 new survey numbers are proposed for lease jointly to NREDCAP and to the developer viz., M/s. Esteem Energy (P) Ltd., Hyderabad. The Government of Andhra Pradesh had issued wind power energy policy, 2015 in G.O. Ms. No.9 Energy, Infrastructure and Investment (PR.II) Department dated 13.02.2015. The District Collector fixed the market Page 12 of 66 value of the land as Rs.1,50,000/- per Acre, thereafter, the marked value of the proposed extent. The 40.00 Acres of land is derived and is fixed at Rs.60,00,000/-. Accordingly, M/s. Esteem Energy (P) Ltd., Hyderabad remitted the 10% of the lease amount of Rs.6,00,000/- being lease value fixed by the Government of Andhra Pradesh vide Govt. Memo No.12640/Assn.V (1) /2015-1, dated 07.05.2015. The land was also given advance possession and at present, the land is in the possession of M/s. Esteem Energy (P) Ltd., Hyderabad. The New & Renewable Energy Development Corporation of Andhra Pradesh, while submitting their application also requested to allow for laying approach roads to the wind mills through the non-leased waste land. They also informed that the lands laid would be public lands and no claim would be laid on the roads formed in the Government land. Thereafter, M/s. Esteem Energy (P) Ltd., Hyderabad completed the laying of roads, as the land is a waste land and as the NREDCAP which is a Government organization had undertaken that even if the approach roads are laid they could be treated as public roads for public purpose and also as many pattadars, whose lands are located beyond the leased land above the hills would also be benefited. Hence, there was no need to stop the laying roads. Due to laying of the roads in the existing pathway, no ecological imbalances were created. No trees were existed in the land used for laying roads. Only boulders and rocky area were existed in the pathway. At present, erecting of windmills and laying of roads is completed and the wind mills are functioning. They further contended that it is a Government land under the control of the Revenue Department and it was not under the control of Forest Department and these lands were never notified as Reserve Forests under any of the Forests Acts either under the Madras Forest Act, 1865, Indian Forest Act, 1972 and Forest (Conservation) Page 13 of 66 Act, 1980. It was only a poramboke land in revenue records and never put to use as a forest. The Forest Department also never treated this as a forest. In other words, the land would not come under the purview of the Forest Conservation Act, since the land is never notified under any of the Forest Acts and as such, there is no necessity to take any permission under the Forest (Conservation) Act. No revenue record says that it is a Reserve Forest and no Reserve Forest land was included in the project area and only private patta lands, Government poramboke lands, Endowment lands, Inam lands and Wakf lands were included. 1568.00 Acres of land that lies in Mallela Village in Sy. No.1036/1 is classified as Forest Reserve for the purpose of Revenue classification in revenue records without any reference to actual physical features of the land. It does not mean that it is a forest land. 595.00Acres in Sy. No.1 of Udavangandla Village is classified as Hill and it is also not a forest. These lands are vested with the Revenue Department and the Forest Department has no authority over them, as they are not included in the notified Reserve Forest. More than 2,163.00 Acres of waste land is a single bit of land, but included in the two different revenue villages. The land included in Mallela Village is classified as Forest Reserve, while the land included in Udavangandla village is classified is Hill poramboke. Merely because, the name Forest and Forest Reserve is used in the revenue records which is not having the characteristics of real forest. It will not change the character of poramboke land and that will not come under the provisions of the Forest (Conservation) Act or Forest Act. The 7th Respondent filed a counter before this Tribunal claiming that the NOC issued by them was cancelled vide R.C. No.563/2015-P9 dated 31.01.2016 and hence, the lease should also be cancelled and wind mills project should be stopped. It was also mentioned in the counter statement filed by the 7 th Page 14 of 66 Respondent that the 6th Respondent/Chief Conservator of Forests, Kurnool also addressed the District Collector & Magistrate, Kadapa vide R.C. No.4590/2015-TO, dated 16.11.2015, 29.02.2016 and 02.09.2016 requesting to cancel the recommendation orders of the Tahsildar, Thondur in leasing out the forest reserve lands to user agency i.e. M/s. Esteem Energy (P) Ltd. and to take action against the Tahsildar, Thondur for violating the provisions of Forest (Conservation) Act, 1980 for having proposed the lease in a forest land. They also further mentioned that the revenue officials were reminded to cancel the letter to the user agency by their letter communications dated 12.01.2016, 30.01.2016, 31.01.2016, 03.02.2016 and 26.02.2016. The reasons given by the Forest Department to bring this land within the provisions of the Forest (Conservation) Act are not tenable. According to them, since it is classified as Forest Reserve Poramboke in the revenue records, this would become forest land and without obtaining prior approval from the Central Government, they are not entitled to do their act and since the roads were laid in the forest land, the matter should be examined for taking action under the WALTA Act for which the Tahsildar is the Chairman. Since the NOC issued by the Forest Department was cancelled, the lease also should be cancelled and action will have to be taken against the Tashildar, Thandur who recommended to grant the lease without considering the Forest (Conservation) Act and as such, action will have to be taken against him. The District Collector, Kadapa has sent a reply contravening these aspects to the Forest Department. Further, the dictionary meaning Forest as per the directions of the Hon‟ble Apex Court also will go to show that there should be a thick growth of naturally grown trees. As such, if any, land is to be declared as a forest, there should be danger of further deforestation and the land must have a forest as understood according to the dictionary meaning. Page 15 of 66 But the land in Mallela Village which is classified as Forest Reserve is only an eroded, barren, rocky area consisting only thorny shrubs and bushes here and there. There was no danger of further deforestation and as such, the definition of Forest as envisaged by the Hon‟ble Apex Court will not be applicable. The Hon‟ble Apex Court in its Judgment issued in B.S. Sandhu Vs. Government of India & Ors. in Civil Appeal Nos.4682-4683 of 2006 reported in (2014) 12 SCC 172, while discussing in detail the above of T.N. Godavarman‟s case, clearly declared that a land having no forest in it cannot become a forest land. The case of the land in Mallela Village classified as Forest Reserve in Government records fits exactly into the same facts and circumstances of the above case. So, it cannot be termed as Forest. Further, in another case of similar nature, which was subject matter in A. Narendraraja Vs. Government of Andhra Pradesh and Ors. reported in AIR 2008 AP 220 = 2008 AJHC (NOC) 928 AP, where in a quarry lease was cancelled as lease land was classified as Adavi Poramboke and the Hon‟ble High Court held that the land covers with rocks and boulders and it is not having trees in it and it cannot be termed as Forest. Under Section 2 (iii) of the Forest (Conservation) Act, lease to private persons or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government requires Central Government‟s prior permissions. But no such restriction is levied on Government controlled corporations or agencies. In this case, the lease is proposed jointly in the name of NREDCAP, which is a Government owned and controlled corporation and the developer. As such, the restriction is not applicable. The above sub section will apply only to the Forest lands where there is apprehension of further deforestation and not to other lands. The WALTA Act is also not applicable and there is no necessity to action against the Page 16 of 66 Tahsildar, as there are no trees cut and no water courses are damaged. Since the lease was granted on the basis of the NOC granted by the Forest Department, merely because, they have cancelled the same after 11 months, it cannot be treated as a specific order cancelling the NOC by giving reasons which can be given only by the higher authorities and not by the DFO. The Legislative intention of the Forest (Conservation) Act is to protect the forest against the deforestation and causing any impact on the forest ecology. In this case, no such things will happen. The Forest Department also contended that it was not a Reserve Forest or Notified Forest and there are no trees available in that area. So, the dictionary meaning of Forest also will not apply in this case. The Forest Department without giving an opportunity to the Revenue Department to explain their case, unilaterally cancelled the same which is against law. The dictum laid down in T.N. Godavarman‟s case by the Hon‟ble Apex Court has been wrongly interpreted. Several writ petitions were filed and latter it was withdrawn. Subsequently, another Public Interest Litigation was filed with liberty to approach this Tribunal but that benefit cannot be extended to the applicant. Further, he is working in E-Seva Centre in Thondur as computer operator. Though his family members are having some agricultural lands, he is not an agriculturist by professions. He is not involved in social activities as alleged. So, they prayed for accepting their contentions and dismiss the application.
21. The 7th Respondent filed a counter affidavit contending that the office of DFO, Proddatur (WL) Division had received complaints from Smt. D. Lakshmi Sudharani, Sarpanch, Udavangandla Village dated 08.01.2016 and Sri. Devireddy Manohar Reddy, R/o. Buchapalle Village dated 09.01.2016 Page 17 of 66 and 25.02.2016. The DFO, Proddatur cancelled the earlier NOC given in this regard. As part of the enquiry into the contents of the petitions, Joint Inspection was taken up on 18.02.2016 along with the RDO, Jammalamadugu and during Joint Inspection, except the rough roads, other activities like erection of wind mills were not started by that date i.e. 18.02.2016. During inspection, they noticed that road was laid by clearing forest thorny shrub growth, for which, the Forest Department did not give any permission. On one corner of Mallela (South) Reserve Forests under the control of the Forest Department touches "Forest Reserve" under the custody of the AP Revenue Department as revenue land at Latitude 14.56726 and Longitude 78.33224. The forest area in question as per the revenue records lies in the east corner of Mallela South Reserve Forest. The DFO, Proddatur issued NOC for the subject project on 12.03.2015 vide R.C. No.561/2015-P9 but subsequently cancelled the same on 31.01.2016 vide R.C. No.563/2015-P9. Prior to that, the Chief Conservator of Forest, Kurnool addressed the District Collector and District Magistrate, Kadapa vide R.C. No.4590/2015-TO, dated 16.11.2015, 29.02.2016 and 02.09.2016, requesting to cancel the recommendation orders of the Tahsildar, Thondur in leasing out of forest reserve lands to user the agency viz., M/s. Esteem Energy (P) Ltd., Ground Floor, 17 B, Vengal Roa Nagar, Hyderabad and to take action against the Tahsildar, Thondur for violating the provisions of the Forest (Conservation) Act. The user agency was advised to stop ongoing work and to follow the guidelines laid down in Forest (Conservation) Act, 1980 to obtain permission for their wind mill project vide Rc. No.563/2015- P9, dated 21.03.2016. The Revenue officials were reminded by subsequent letters as well to cancel the lease granted to the user agency. So, they prayed for accepting their contentions and dismiss the application. Page 18 of 66
22. The 9th Respondent filed a counter more or less raising the same contentions raised by the Revenue Authorities and supporting the lease in their favour and reiterating the non-applicability of Forest (Conservation) Act for this purpose. They further contended that the application is not maintainable before this Tribunal on the ground that unless it falls under the definition of Forest coming within the provisions of the Forest (Conservation) Act, 1980, the same cannot be considered by this Tribunal. Since it is not a forest as defined under the Forest (Conservation) Act, but it is only the revenue land classified as Forest Reserve and not Reserve Forest or Forest and as such, the provisions the Forest (Conservation) Act is not applicable. The word forest has not been defined under the Forest (Conservation) Act, 1980 nor in the Indian Forest Act, 1927 or Madras Forest Act, 1982. After the reorganization of States, the applicable law in so far as in State of Andhra Pradesh is the Andhra Pradesh Forest Act, 1967 and in that Act was also, forest has not been defined. They have relied on the dictionary meaning of Forest and the test for determination what the land is private forest evidently scheme of that section appears to be that if the land is shown to be a private forest on the appointed date, the Tamil Nadu Preservation of Private Forest Act came into force, it has actually ceased to be a forest unless one, or the other of the exclusions in clauses A to D in the definition applies. The India Forest Act divides forests into three clauses viz., Reserved Forest, Village Forest and Protected Forest. The Hon‟ble Apex Court in a case observed that "the terminology employed by the Indian Forest Act for reserved forest are those areas of forest lands which are constituted as reserved forests under Chapter II of the Act. As per the Tamil Nadu Act XXVII of 1949 - Section 2
(a) „Forests‟ include caste or communal land containing trees and shrubs, pasture land and any other class of land declared by the State Government Page 19 of 66 to be a Forest by notification in the Fort St. George Gazette". So, all these definition will go to show that only if the land was declared as forest or notified as forest, then it cannot be treated as a forest for any purpose. The applicant is not entitled to get the benefit of liberty given to Devi Reddy Manohar Reddy in W.P. PIL No.14 of 2016 by the Hon‟ble High Court of Andhra Pradesh at Hyderabad while dismissing the application, leaving the liberty of the applicant to approach this Tribunal. The Hon‟ble High Court of Andhra Pradesh did not go into the question as to whether it is a forest or not, but only delegated the party to approach this Tribunal relying on the decision of the Hon‟ble Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan. Since the industry is a white category industry, they do not fall under the EIA Notification or they are coming within the purview of the Pollution Control Board. The Central Pollution Control Board in their letter dated 18.01.2017, clarified that exception is included for all the capacity of wind power generations as against the word less than 25 MW mentioned in their earlier circular. On account of the establishment of wind mill, neither flora and fauna of the Reserve Forest nor the migratory birds have been affected. There was no felling of trees happened in this case. They denied most of the allegations made in the application and reiterated the contentions raised by the Revenue Department and also relied on certain observations by the DFO in their Joint Inspection report. They further contended that since it is not a forest, there is no necessity to obtain prior permission from the authorities under the Forest (Conservation) Act. They have completed the project by investing nearly Rs.178 Crores and the belated prayer of the applicant cannot be allowed and they prayed for dismissal of the application.
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23. The 8th Respondent filed a counter more or less adopting the contentions of the Revenue Department and also explained the policy of the Central Government to promote renewable energy policy. It is on that basis, they conducted a study and decided to install the wind mills, on the basis of the wind power policy, 2015 of Andhra Pradesh and the land was identified after following the procedure. So, they prayed for accepting their contentions and dismissal of the application.
24. As per order dated 30.01.2020, after considering the pleadings, this Tribunal had directed the official respondents to submit present status and also considering the importance of the matter, this Tribunal had appointed Mr. Ritwick Dutta, the learned counsel as Amicus Curiae to assist the Tribunal on the legal issues raised in this case.
25. As per order dated 25.10.2021, this Tribunal had directed the Chief Secretary to Government, State of Andhra Pradesh to convene a meeting with the Environment Secretary, Revenue Secretary and Principal Chief Conservator of Forests, if necessary, the District Collector of the concerned district to evolve a concrete position as to whether this property will fall under the ambit of forest as directed by the Hon‟ble Apex Court in T.N. Godavarman‟s case or not and directed them to file a report in this regard. The Chief Secretary to Government, State of Andhra Pradesh was also directed to consider as to whether this disputed property has to be notified as a forest land on the basis of the directions of the Hon‟ble Apex Court in T.N. Godavarman‟s case. The Principal Chief Conservator of Forest and Head of Forests Force was also directed to file an independent statement regarding their stand on this aspect.
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26. The State of Andhra Pradesh has filed their report dated 10.12.2021, on the basis of the directions given by this Tribunal by order dated 24.11.2021, e- filed on 11.11.2021 which reads as follows:-
"REPORT SUBMITTED BEFORE THE HON'BLE NATIONAL GREEN TRIBUNAL (SOUTH ZONE), CHENNAI, AS PER ORDERS DATED 25-10-2021 IN ORGINAL APPLICATION NO.09 OF 2017 Preamble Sri Y. V Pratap Reddy have filed an 0.A. No.09 of 2017 before the Hon'ble National Green Tribunal (SZ) seeking the installation of wind mills in Sy.No.1036/1 sub-divided as Sy.No.1174 to 1185, Mallela village and the proposed installation of 4 Nos of wind mills in Sy.No. 1 sub-divided as Sy.Nos 506 to 509, Udavagandla village, Thondur Mandal, Y.S.R.District in a total extent of 40 acres, as illegal.
Orders of the Hon'ble National Green Tribunal, Dated:25.10.2021 The Hon'ble National Green Tribunal (SZ) has passed order dated 25-10 2021 in Para No. 5 to 8 as follows;
―5.It may be mentioned here, in cases where dispute regarding the nature of the land as to whether it will have to be deemed to be a forest land or revenue land for the purpose of the Forest (Conservation) Act, 1980 on the basis of the Godavarman Case, it is for the higher level officials to file their affidavit explaining their stand. But no such exercise was done in this case. So under such circumstances we feel it appropriate to direct the Chief Secretary of Andhra Pradesh to convene a meeting of the Environment Secretary, Revenue Secretary and Principal Chief Conservator of Forests, if necessary the District Collector of the concerned district to evolve a concrete position as to whether this property will fall under the ambit of forest as directed by the Hon'ble Apex Court in Godavarman case or not and then file a report to this Tribunal regarding this aspect. 6. The Chief Secretary is also directed to consider as to whether this disputed property has to be notified as a forest land on the basis of the directions issued by the Hon'ble Apex Court in Godavarman Case.
7. Since the matter is of the year 2017. They are not expected to take longer time to file a report as directed by this Tribunal as it is part heard matter and different department are taking different stand on this aspect which has to be resolved on the basis of the resolutely process that these State Heads are expected to take on this aspect. Further the Principal Chief Conservator of Forests and Page 22 of 66 Head of Forests Force is directed to file independent statement regarding their stand on this aspect.
8. The report to be submitted by the Chief Secretary must also accompany the details of the meetings of the persons who attended along with the minutes showing the discussions, objections, if any, raised by each department and as to how it has been resolved. They are directed to submit the respective reports to this Tribunal on or before 24.11.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hard copies to be produced as per Rules by serving advance copy to the counsel appearing for all the parties including the amicus curiae so that detailed hearing on that basis can also be conducted on the same date. Amicus curiae is directed to submit his report without waiting for the report of the Chief Secretary of Andhra Pradesh.‖ It is submitted that, in compliance with the Hon'ble NGT directions, the Chief Secretary to Government has convened the meeting on 23.11.2021 at 4.30 PM in the Conference Hall of Chief Secretary, Block-1, A.P.Secretariat, Velagapudi, to discuss on the orders of the Hon'ble National Green Tribunal, Southern Zone in 0.A.No.09 of 2017 and to evolve a concrete position as to whether this property will fall under the ambit of forest. The following officers were present in the virtual Meeting: -
1) Dr. Sameer Sharma, IAS, Chief Secretary to Government
2) Sri N. Prateep Kumar, IFS., PCCF & HOFF
3) Smt. Usha Rani, IAS, Principal Secretary, Revenue Department
4) Sri Vijay Kumar, G.SRKR, IAS, Secretary, EFS&T Department
5) Sri Chiranjeevi Choudary, IFS., PCCF (CAMPA)
6) Sri Vijaya Rama Raju, IAS, District Collector, Kadapa.
I am enclosing herewith the minutes of meeting held on 23-11-2021, as per the directions of the Hon'ble National Green Tribunal, Southern Zone, Chennai.
It is therefore prayed that this Hon'ble Tribunal may be pleased to record this minutes of meeting and pass appropriate order and thus render justice.
Dated at Vijayawada on this the 10th day of December 2021.‖ Page 23 of 66
27. They also produced minutes of the meeting relating to the wind mills in YSR Kadapa District convened by the Chief Secretary on 23.11.2021 which reads as follows:-
"Minutes of the Meeting on NGT issue related to wind mills in YSR Kadapa District convened by Chief Secretary on 23.11.2021 at 4.30 PM Following are the officers present in the virtual Meeting:
1) Dr. Sameer Sharma, IAS, Chief Secretary to Government
2) Sri N. Prateep Kumar, IFS., PCCF & HOFF
3) Smt. Usha Rani, IAS, Principal Secretary, Revenue Department
4) Sri Vijay Kumar, IAS, G.SRKR, Secretary, EFS&T Department
5) Sri Chiranjeevi Choudary, IFS., PCCF (CAMPA)
6) Sri Vijaya Rama Raju, IAS, District Collector, Kadapa.
The Hon'ble National Green Tribunal directed the Chief Secretary, Government of Andhra Pradesh, to evolve a concrete position as to whether this property will fall under the ambit of forest as directed by the Hon'ble Apex Court in Godavarman case or not and then file a report to this Tribunal regarding this aspect and also to consider as to whether this disputed property has to be notified as forest land on the basis of the directions issued by the Hon'ble Apex Court in Godavarman case.
As per the above directions, the Chief Secretary, Government of Andhra Pradesh has convened the meeting to evolve a stand.
Averment of Principal Chief Conservator of Forests and HoFF, AP The Principal Chief Conservator of Forests has briefed the facts of the case and his views on the issue.
The process of installation of wind mill project commenced by giving advance possession of land in Sy.no.1036/1 over an extent of Acres.30.00 cents of Mallela Village and in Sy.no.1 over an extent of Acres.10.00 of Udavagandla village on 25.06.2015 to the District Manager, NREDCAP, Kadapa.
Later on, knowing the status of land in Sy.no.1036/1 as "Forest Reserve" in revenue records, the Divisional Forest Officer, Proddatur WL, Proddatur cancelled the NoC issued.
The Prl.CCF & HOFF, AP read the contents of the judgement delivered by the Hon'ble Supreme Court of India, dt.12.12.1996 in W.P (Civil) no.202/1995 in the matter of T.N. Godavarman Thirumulpad Vs Union of India and Others case as follows;
"The Forest (Conservation) Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made herein for the conservation of forest and for Page 24 of 66 matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest‖ must be understood according to its dictionary meaning. This description covers all statutorily recognized forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "Forest Land" occurring in section 2, will not only include "forest‖ as understood in dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership".
The Prl.CCF & HOFF, AP has informed that in such type of similar cases in Kondapalli village in Krishna District, the Government of AP has taken a stand on the lands classified as "Forest Reserve" attracts Forest (Conservation) Act, 1980 and accordingly, the firms have got mining leases after getting forest clearance from the Central Government.
The A.P Forest Department has not objected to the establishment of development project in the said land, instead requested the firm to regularize it by applying for diversion under Section 2 of Forest (Conservation) Act, 1980 and get forest clearance.
Since the lands in Sy.no.1036/1 over an extent of Acres.30.00 cents of Mallela Vilalge and in Sy.no.1 over an extent of Acres.10.00 of Udavagandla village are under the administrative control of Revenue Department, decision has to be taken for giving report to the Hon'ble NGT on "whether the land classified as "Forest Reserve" in Revenue records comes under the purview of above Supreme Court of India judgement or not.
Averment of Principal Secretary to Government Revenue Department, A.P The Principal Secretary to Government, Revenue Department, A.P. Secretariat, informed that, land in Sy.no.1036/1 of Mallela village, Thondur mandal having an area of Acres 1567. 52 cents, does not contain tree growth and it is a barren land, and classified as "Forest Reserve" in Revenue Records. It is not fit for agriculture purpose. Excluding the area of Acres.30.00 cents in Sy.no.1036/1 which was allotted to NREDCAP for the development project involving more than Rs. 175 crore investment, the remaining area in Sy.no.1036/1 may be allotted to Forest Department after getting suitable proposals for its notification. As of now, it is not notified forests, it does not attract Forest (Conservation) Act, 1980.
Averment of Secretary, EFS&T Department The Secretary, EFS&T Department, AP Secretariat, opined that the basic objective of the different Porambokes are to meet the community needs. In this case, the Forest Reserve Poramboke is earmarked for development of Forest to meet the community needs and it is not covered by the Godavarman Judgement of the Hon'ble Supreme Court. As there is no tree growth in the said area for the purpose for which it was reserved, this Forest Reserve Poramboke may not be treated as a Forest.
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Averment of the District Collector, Kadapa The District Collector, Kadapa also informed that the lands in Sy.no.1036/1 of Mallela Village and Sy.no.1 of Udavagandla village are contiguous and bears the same physical features. The land in Sy.no.1036/1 of Mallela Revenue village is classified as "Forest Reserve" and the land in Sy.no.1 of Udavagandla revenue village is classified as "Hill poramboke‖. Both these lands are purely Government lands vested with Revenue Department. The lands have rock sheets underneath and soil is eroded and hence virtually no tree growth. Even though it is classified as "Forest Reserve" in revenue records, it is a barren land containing no trees grow in the area except some spiny bushes here and there. It is pure barren, eroded and rocky area with semi desert like features. The entire land is covered with boulders and lesser quantity of soil on the top in the said land. It will not attract Forest (Conservation) Act, 1980 in terms of Hon'ble Supreme Court of India, dt.12.12.1996 in W.P (Civil) no.202/1995 in the matter of L.N. Godavarman Thirumulpad Vs Union of India and Others case.
Averment of Sri Chiranjeevi Chowdary, IFS., Prl.CCF (CAMPA) Sri Chiranjeevi Chowdary, IFS., Prl.CCF (CAMPA) confirmed the version of Principal Chief Conservator of Forests and Head of Forest Force, AP and informed that the activities in Sy.no.1036/1 of Mallela Village attracts Forest (Conservation) Act, 1980.
After hearing all the above views, the meaning of "Forest Reserve Poramboke‖ is that the land is earmarked for future development of forests. The Godavarman judgement is applicable to all forests irrespective of the ownership or classification and not to porambokes set aside for the purpose of development of forests in the future. So, the land in Sy.No.1036/1 of Mallela Village and in Sy.No.1 of Udavagandla Village does not come within the rubric of "Forest" or "Forest land" as set out by the Hon'ble Supreme Court in the Godavarman case.
Accordingly, the land under issue is not Forest land and is Revenue land vested with the Revenue Department whose future land use is planned to be a forest.‖
28. The Principal Chief Conservator of Forest and Head of Forests Force, State of Andhra Pradesh as directed by this Tribunal filed an independent report dated 11.11.2021 regarding his stand in respect of category of the land under dispute which reads as follows:-
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29. Heard Mr. S. Sai Sathya Jith, the learned counsel appearing for the applicant, Mr. G. M. Syed Nurullah Sheriff, the learned counsel for the MoEF&CC, Mrs. Madhuri Donti Reddy for Respondents No.2 to 5, Mr. Akul Kishan for Respondents No.6 & 7, Mr. Muralidar and Mr. S.P. Vijayaraghavan for 8th Respondent and Mr. P.B. Krishnan along with Mr. Rajinish Pathiyil for 9th Respondent and also Mr. Ritwick Dutta, Amicus Curiae.
30. The learned counsel appearing for the applicant argued that it will be seen from the documents produced by the applicant that it is recorded as forest reserve originally and thereafter, in respect of Sy. No. 1036/1 of Mallela Village was shown as Forest Reserve and as regards Sy. No.1 of Udavangandla Village is shown as Hill. Further, this parcel of land is situated between Mallela North and South Reserve Forest area and it can only be treated as part of the forest and that was the reason why, though it was not notified as Reserve Forest, it was kept as Forest Reserve in the revenue records. Further, in T.N. Godavarman‟s case, the Hon‟ble Supreme Court has specifically mentioned that in respect of Government lands, where it was shown as either forest land or reserve forest, though it was not a reserve forest, then it will be deemed to be a forest for the purpose of Forest (Conservation) Act. The further study as to whether the grammatical Page 31 of 66 meaning of forest can be invoked will be only in respect of private lands where large scale spontaneous grown trees are available and the large extent of land is having green cover of such nature, then irrespective of the ownership of the land that will have to be treated as a deemed forest for the purpose of application of Section 2 of the Forest (Conservation) Act, 1980. Further, directions were issued to conduct study as to how such lands can be declared as deemed forest by the State Government and take steps to include as much land as possible to protect the green cover which will fall under the grammatical meaning of the forest. So, as far as the Government lands are concerned, there is no necessity to go for such an exercise and as such, the stand of the Andhra Pradesh Government and the Revenue Department that it is not a forest land and as such, the Forest (Conservation) Act, 1980 is not applicable, is not sustainable. Though earlier NOC was issued by the DFO - Proddatur, later the same was cancelled and that was intimated to the Revenue authorities and both the DFO and the Conservator of Forests requested the District Magistrate to cancel the lease granted to the 9th Respondent, as it is a forest land and without obtaining necessary clearance under the Forest (Conservation) Act, 1980.
31. The decision relied on by the learned counsel for the 9th Respondent is not applicable to the facts of this case. Further, in this case, the Principal Chief Conservator of Forests in the joint meeting convened by the Chief Secretary and the Revenue Secretary and the Principal Secretary for Environment and Forests, categorically stated that it will fall under the definition of forest as envisaged in T.N. Godavarman‟s case and as such, the entire land will have to be treated as forest land for the purpose of Forest (Conservation) Act, 1980. Further, subsequent development will go to show that except this 40 Page 32 of 66 Acres, which is under dispute, the remaining area in Sy. No.1036/1 of Mallela Village was decided to be kept as forest land for the purpose of afforestation purpose by the Government. That also will give an indication that the entire stretch of land is forest land for the purpose of Forest (Conservation) Act, 1980, irrespective of the fact that is a notified forest or otherwise.
32. On the other hand, the learned counsel appearing for the Andhra Pradesh argued that though it was shown as Forest Reserve in the revenue records, nature and character of the land will go to show that it will not fall under the grammatical meaning of forest, as there was no spontaneous tree growth or any green cover and it is only a rocky area without any valuable minerals. Further, a joint inspection was conducted before selecting this property with District Forest Officer and the Revenue Department, and even there, the DFO has said that it is not forming part of the Reserve Forest notified under the Forest Act and they are not in possession of that land and they have no objection in granting the lease, but subsequently, retreated from their stand. Further, in one of the decisions of the Hon‟ble High Court of Andhra Pradesh viz., A. Narendraraja Vs. Government of Andhra Pradesh, Department of Mines and Geology and Ors. reported in AIR 2008 AP 220 = 2008 AJHC NOC 928 AP, the Hon‟ble High Court of Andhra Pradesh has observed that merely because the area was classified as Adavi Poramboke, where there is no tree cover, but it is only covered by rocks, then it cannot be termed as forest. That was the case where a quarry lease was granted in a land classified as Adavi Poramboke in the revenue records which was cancelled by the authorities and when that was challenged, the Hon‟ble High Court of Andhra Pradesh observed that merely because it was Page 33 of 66 shown as Adavi Reserve or Adavi Poramboke in the revenue records, if there is no growth, but only covered with rocks, then it cannot be treated as forest, and set aside the order cancelling the quarry lease. So under such circumstances, according to the learned counsel for the State of Andhra Pradesh, it cannot be treated as forest for the purpose of Forest (Conservation) Act, 1980 and as such, no prior permission is required.
33. On the other hand, the learned counsel appearing for the Forest Department argued that since it is shown as Forest Reserve in the revenue records, it will squarely fall under the definition of deemed forest, as observed by the Hon‟ble Apex Court in T.N. Godavarman‟s case and as such, the Forest Department was perfectly justified in the cancelling the NOC. Further, in one of the cases, the Hon‟ble Apex Court has directed the State of Andhra Pradesh to constitute a committee under the leadership of Chief Secretary and Principal Secretary for Environment and Principal Chief Conservator of Forests to identify the deemed forest in the State and take a call on that and as such, it is necessary to direct such committee to go into the question and to decide the character of the land. Even as per the directions of this Tribunal, such a committee was constituted and in that committee, the Revenue Secretary and Chief Secretary has taken a stand that is not a forest, though the Principal Chief Conservator of Forests has reiterated their stand that it is a forest defined in tune with the decision of the Hon‟ble Apex Court in T.N. Godavarman‟s case. But however, except 40 Acres, the remaining extent of land was directed to be kept as a forest for the purpose of utilizing the same for afforestation purposes. So, it is for the Tribunal to consider the question as to whether it will have to be treated as a forest or not and they will abide by the directions issued by this Tribunal. Page 34 of 66
34. The learned counsel appearing for the MoEF&CC argued that it is for the State Government to consider the question as to whether it is a deemed forest or not and as per the directions of the Hon‟ble Apex Court, they will have to do this exercise and identify the deemed forest irrespective of the ownership of the land as observed by the Hon‟ble Apex Court and then include the same as forest land for the purpose of application of Forest (Conservation) Act, 1980. Further, the Principal Chief Conservator of Forests, on further enquiry, came to the conclusion that NOC issued is not proper and directed the District Forest Officer to cancel the same and accordingly, the same was cancelled and intimated to the District Magistrate and District Collector and even ask them to take steps to cancel the lease granted in favour of the 9th Respondent and as such, they have taken all steps to protect the forest.
35. The learned counsel appearing for the 9th Respondent argued that merely because it was shown as Forest Reserve or Forest in the revenue records, it cannot be treated as forest for this purpose and also for the purpose of grammatical meaning as observed by the Hon‟ble Apex Court in T.N. Godavarman‟s case. Further, the first decision of the T.N. Godavarman‟s case was passed at a time when large scale mining was permitted in forest cover areas and in order to protect the forest cover, the Hon‟ble Apex Court had directed the extended meaning of forest to protect such lands, with further direction to conduct further enquiry in this regard, till then no permission for any activity that will affect the green cover should be granted. Further, this area was neither notified as Reserve Forest nor Forest either under the Madras Forest Act which was then applicable or Indian Forest Act/Andhra Pradesh Forest Act. Further, though the Mallela Forest Page 35 of 66 North and South were declared as Reserve Forest long ago and notified under the Madras Forest Act, they never wanted this piece of land which is situated in between the Reserve Forest area and never intended to be included as Reserve Forest and no steps were taken in this regard. Further, the documents produced by the 9th Respondent will go to show that later on the basis of the directions issued by the Hon‟ble Apex Court in T.N. Godavarman‟s case, several other areas which are having the grammatical meaning of forest were included in the Reserve Forest and the same were notified and even at that time, this land was intentionally excluded, as they never wanted this to be treated as a forest for any purpose and it is only a rocky area without any tree growth. Further, in the subsequent decisions, the Hon‟ble Apex Court has diluted the grammatical meaning of forest and certain guidelines were given as to how this will have to be considered and even applying those guidelines, this cannot be treated as a forest land for the purpose of application of Forest (Conservation) Act, 1980. This is never being in the possession of Forest Department and it was always in the possession of Revenue Department and since it is a revenue land, merely because nomenclature was given as Forest Reserve, it will not assume the character of forest, unless it satisfies the nature of growth and extent of growth, make it a deemed forest under the grammatical meaning. In several further decisions of T.N. Godavarman‟s case was considered by the Hon‟ble Apex Court itself and certain lands which were shown as Adavi Forest or other name, were not treated as forest for the purpose of Forest (Conservation) Act, 1980. Further, the 9th Respondent is only a person executing the project of the Government and the project proponent is the Andhra Pradesh Government, and if at all the permission will have to be Page 36 of 66 obtained by the State of Andhra Pradesh and it was not the responsibility of the 9th Respondent.
36. The learned counsel relied on the decisions reported in T.N. Godavarman Thirumalpad Vs. Union of India & Ors. (1997) 2 SCC 267 = AIR 1997 SC 1228, T.N. Godavarman Thirumalpad Vs. Union of India & Ors. (2006) 5 SCC 45, T.N. Godavarman Thirumalpad Vs. Union of India & Ors. (2008) 2 SCC 222 and T.N. Godavarman Thirumalpad Vs. Union of India & Ors. (2016) 8 Scale 615 and B.S. Sandhu Vs. Government of India & Ors. (2014) 12 SCC 172 in support of their case.
37. The learned counsel appearing for the 9th Respondent also argued that if the intention of the study was to include these lands as forest land and that would have been done by them long ago, when they were taking steps to include more areas as Reserve Forest and notified the same as Reserve Forest, but such an exercise has not been done by them in this case. That shows that the Government has no intention to treat this as a forest land for the purpose of notifying the same under the Forest Act or treating this as a forest for the purpose of Forest (Conservation) Act, 1980. Further, the purpose for which the lease was granted is to establish an alternate energy from wind and the report of the Forest Department and other departments will go to show that it will not have any impact on the forest or wildlife, as it is an eco-friendly project. Further, this Tribunal has to decide as to whether it is a forest falling under the grammatical meaning of forest or extended meaning of forest as observed by the Hon‟ble Apex Court in T.N. Godavarman‟s case and it is for the State Government to consider all those aspects and pass appropriate orders to include or not to include the same as Page 37 of 66 a forest land. So under such circumstances, the State Government was perfectly justified in treating this as a revenue land and not a forest land and rightly came to the conclusion that no permission under the Forest (Conservation) Act, 1980 is required for this purpose. Further, the applicant has not come with clean hands and things are started long ago and lease and the policy decision was taken earlier and the application was filed in the year 2017. Further, the project itself has been completed and no purpose will be served in passing any orders after the act has been accomplished.
38. Mr. Ritwick Dutta, Amicus Curiae argued that what was sought to be protected under Section 2 of the Forest (Conservation) Act, 1980 is a land and not a forest cover as such. Even though there was no trees in the area and if it was recorded as a forest in the revenue records, then it will come under the purview of the forest for the purpose of Forest (Conservation) Act, 1980 as observed by the Hon‟ble Apex Court in T.N. Godavarman‟s case.
39. Further, the decisions relied on by the learned counsel appearing for the 9th Respondent are not applicable to the facts of this case. In B.S. Sandhu Vs. Government of India & Ors. (2014) 12 SCC 172, the question was whether any land declared as forest land under the Punjab Land Preservation Act, 1900 can be treated as forest land and whether Section 2 of the Forest (Conservation) Act, 1980 will apply and in that case, the Hon‟ble Apex Court has not decided the case, but only remitted the matter to the High Court for fresh consideration with an observation that merely because it was given under the Administration of the Forest Department for the purpose of implementing the PLP Act, 1900 is not a ground for that purpose Page 38 of 66 and that inclusion is different from the purpose of consideration under the Forest (Conservation) Act, 1980. So, it cannot be treated as dictum that it cannot be treated as forest for any other purpose. Further, in M.K. Ranjitsinh & Ors. Vs. Union of India & Ors. 2021 SCC Online SC 326, the Hon‟ble Apex Court has issued certain guidelines for installation of power lines, keeping in mind the impact of such installation on two birds on the verge of extinction Greater India Bustard and Lesser Florican. In T.N. Godavarman Thirumulpad Vs. Union of India & Os. (1996) 9 SCR 982, the Hon‟ble Supreme Court held that any land demarcated as forest in any Government record will be considered as forest land for the purpose of Forest (Conservation) Act, 1980 irrespective of the fact that whether there is any tree cover on that land or not. It was also observed in that decision that the term forest land occurring in Section 2 of the Forest (Conservation) Act, 1980 will not only include forest as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of its ownership.
40. Further, In Re. Vs. Construction of Park at Noida Near Okhla Bird Sanctuary (Anand Arya & Ors.) (2011) 1 SCC 744, the Hon‟ble Apex Court took a different view from the above mentioned cases and held that the land recorded as forest land cannot be considered as forest land, as under Section 2 of the Forest (Conservation) Act, 1980. The Court noted that ―In the revenue records, none of the khasras (plots) falling in the project area was ever shown as jungle or forest. According to the settlement year 1359 Fasli (1952 A.D.) all the khasras are recorded as agricultural land, Banjar (uncultivable) or Parti (uncultivated)‖ and therefore, the project land cannot be considered as forest land.
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41. It was also observed in that decision that for the purpose of applying the Forest (Conservation) Act, 1980, the following things will have to be present:-
(i) Provisions of FC Act will apply to all areas that are protected, reserved or otherwise notified as forest.
(ii) All areas that are identified as forest as per the Expert Committees set up by the States in accordance with the directions in the order dated 12.12.1996 in Godavarman case will be considered as forest for purpose of FC Act.
(iii) As per the Godavarman Judgment, all areas that are recorded as forest under any Government record, irrespective of ownership or classification will be considered as forest land.
42. Even assuming that these principles are applied, the land in Sy. No.1036/1 of Mallela Village is mentioned as forest in the revenue records dated 08.02.2016. The minutes of the committee constituted under the Chairmanship of the Director General of Forests and Special Secretary (DGF&SS) held on 25.08.2014, formulated parameters for classification of an area as forest. Though the Hon‟ble Supreme Court in the said Judgment dated 12.12.1996, the committee came to the conclusion that after examination of the said Judgment, they are of the view that the directions of the Hon‟ble Supreme Court in the said Judgment shall be applicable with effect from the date of Forest (Conservation) Act, 1980 came into force. The Andhra Pradesh and Telangana has given guideline to ascertain the definition of forest for the purpose of Forest (Conservation) Act, 1980 as follows:- ―All private lands bearing natural tree growth of more than 0.40 density and having an extent of 10 Ha. shall be treated as forest subject to a condition that it should not adversely affect customary rights of Tribal Land owners.‖ Page 40 of 66
43. Further, in the decision reported in Himachal Pradesh Bus Stand Management and Development Authority Vs. The Central Empowered Committee & Ors. (2021) 4 SCC 309, the Hon‟ble Apex Court held that ―The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools - conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges - of how they have been shaped by humanity's interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity's actions have charted. The environmental rule of law seeks to facilitate a multi- disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognises that the ‗law' element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats.‖
44. In that case, the Forest Department has issued NOC to certain lands and the District and Sessions Judge, Kangra had given a report. Based on that report, the Hon‟ble Apex Court had come to the conclusion that it is a forest land and the Forest Department had failed to discharge their statutory obligation of protecting forest.
45. Further, in M.C. Mehta Vs. Union of India & Ors. (2018) 18 SCC 397 (In Re Kant Enclave matters), the Hon‟ble Apex Court clarified that the decision in B.S. Sandhu must be confined to its own facts.
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46. So, according to the learned counsel, since the revenue records shows that this land is a forest reserve and it is not a private land where the other criteria will have to be considered for the purpose of bringing the dictionary meaning, the stand taken by the State of Andhra Pradesh that it is not a forest land, is not correct and according to the learned counsel, this will be treated as a forest land for the purpose of Forest (Conservation) Act, 1980 and the Forest (Conservation) Act, 1980 will apply and without getting permission under the Forest (Conservation) Act, 1980, the act done by the 9th Respondent is illegal and necessary action will have to be taken in this regard.
47. Considered the pleadings, submissions made by both the parties and submissions made by the Amicus Curiae and the precedents relied on by them, including the materials available on record.
48. The points that arise for consideration are:-
(i) Whether the application is maintainable?
(ii) Whether the land in question is a forest land for the
purpose of applying the Forest (Conservation) Act, 1980?
(iii) Whether the establishment of wind mill in the disputed area is in violation of Forest (Conservation) Act, 1980 and if so, what is the nature of direction to be issued in this case?
(iv) Relief and cost.
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Point No.(i):
49. It was alleged by the applicant that the project of the 9th Respondent of establishing wind mill energy project in the disputed land is in violation of the Forest (Conservation) Act, 1980 and when certain work was about to be carried out in that area, he came to know about the same and he immediately filed this application.
50. It was also alleged in the application that there was a Writ Petition filed by Sreenivasulu Reddy and two others in nature of Public Interest Litigation opposing the present project as W.P. No.273 of 2015 which was later dismissed as withdrawn. Later, another Writ Petition was filed as W.P. No.14 of 2016 which was also disposed of with a direction to file an application before this Tribunal within a period of two weeks. Since the said party has not filed the application but a complaint was filed before the Lok Ayuktha. A request was made and on that basis, certain reports were called for from the Assistant Director of Mines and Geology and also from the Forest Department and the Assistant Director of Mines and Geology vide his letter dated 28.01.2015 informed that there are no economically viable minerals deposited in the land. The Forest Department along with the Revenue Department and Tahsildar, Thondur inspected the area on 12.03.2015 and the DFO, Proddatur granted NOC and on that basis, lease was granted jointly in favour of the NREDCAP and M/s. Esteem Private Energy Limited, Hyderabad.
51. It is an admitted fact that subsequently, the DFO had recalled the NOC granted and thereafter, reminder letters were sent by the Chief Conservator of Forests, Kurnool to the District Collector and District Magistrate directing Page 43 of 66 them to withdraw the lease granted in respect of these lands and it was against the Forest (Conservation) Act, 1980 vide letter dated 12.01.2016. Again on 03.02.2016 and 26.12.2016, the Forest Department had directed the District Collector and the Revenue Department to withdraw the lease granted in respect of these lands. When the applicant came to know that they were trying to lay roads through this property, immediately he approached this Tribunal by filing this application seeking certain reliefs. One such relief is to remove the alleged illegal construction made without obtaining permission under the Forest (Conservation) Act and restore the property to its original position and also for compensation for violations committed.
52. First of all, when they came to know about certain work is being done after the disposal of the writ petition filed by one local person with liberty to approach this Tribunal within two weeks, the applicant got cause of action for approaching this Tribunal when certain alleged illegal acts are likely to be committed by the project proponent without obtaining necessary clearances under the environmental laws.
53. Admittedly, the property in Sy. No.1036/1 of Mallela Village was shown as Government land and the details of the land was shown as forest and name of the Pattadar was shown as „Forest Reserve Forest Reserve‟ and the name of enjoyer was shown as „Forest Reserve Forest Reserve‟ and extent of the land is 1567.52 Acres and the same continued till date. As regards Sy. No.1 of Udavangandla Village is concerned, it is having an extent of 594.80 Acre and it was shown as „Government land‟ and the nature of land was shown as „Hill‟ and the same continued to be same till date. When the applicant Page 44 of 66 had a case that it is a forest land as per the Government records and the provisions of the Forest (Conservation) Act, 1980 will apply and any activity started by the project proponent in that area without getting prior clearance from the Forest Department is illegal and anything was done and he wanted to restore the same, then it will fall under Section 15 read with Section 14 of the National Green Tribunal Act and thereby, they will be getting a period of five years plus 60 days in filing the application. Admittedly, at the time when the application was filed, the project was only in the preliminary stage and only during the pendency of the proceedings, the project was completed.
54. So under such circumstances, the submission made by the learned counsel appearing for the 9th Respondent and other respondents that the application is not maintainable and barred by limitation, cannot be accepted and the same is rejected. The point is answered accordingly.
Point No.(ii) to (iv):
55. Before going into the merits of the case, we feel it appropriate to consider the precedents relied on by the parties.
56. In the decision reported in T.N. Godavarman Thirumulpad Vs. Union of India & Ors. (1997) 2 SCC 267 while dealing with the question as to whether as to what land Forest (Conservation) Act, 1980 will while apply, the Hon‟ble Apex Court observed that ―It has emerged at the hearing, that there is a misconception in certain quarters about the true scope of the Forest Conservation Act, 1980 (for short the `Act') and the meaning of the word "forest" used therein. There is also a resulting misconception about the need of prior Page 45 of 66 approval of the Central Government, as required by Section 2 of the Act, in respect of certain activities in the forest area which are more often of a commercial nature. It is necessary to clarify that position. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and fore matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest: must be understood according to its dictionary meaning. This description cover all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works and ors. versus State of Gujarat and ors. (1987) 1 SCC 213, Rural Litigation and Entitlement Kendra versus State of U.P. 1989 Suppl. (1) SCC 504, and recently in the order dated 29th November, 1996 in W.P.(C) No.749/95 (Supreme Court Monitoring Committee vs. Mussorie Dehradun Development Authority and ors.). The earlier decision of this Court in State of Bihar Vs. BanshiRam Modi and ors. (1985) 3 SCC 643 has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to Page 46 of 66 the decisions of this court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay‖ and passed the following order:-
―5. Each State Government should constitute within one month an Expert Committee to:
(i) Identify areas which are "forests", irrespective of whether they are so notified, recognized or classified under any law, and irrespective of the ownership of the land of such forest;
(ii) identify areas which were earlier forests but stand degraded, denuded or cleared; and
(iii) identify areas covered by plantation trees belonging to the Government and those belonging to private persons.
6. Each State Government should within two months, file a report regarding:-
(i) the number of saw mills, veneer and plywood mills actually operating within the State, with particulars of their real ownership
(ii) the licensed and actual capacity of these mills for stock and sawing;
(iii) their proximity to the nearest forest;
(iv) their source of timber.
7. Each State Government should constitute within one month, an Expert Committee to assess:
(i) the sustainable capacity of the forests of the State qua saw mills and timber based industry;
(ii) the number of existing saw mills which can safely be sustained in the State;
(iii) the optimum distance from the forest, qua that State, at which the saw mill should be located.
8. The Expert Committees so constituted should be requested to give its report within one month of being constituted.
9. Each State Government would constitute a Committee comprising of the Principal Chief Conservator of Forests and another Senior Officer to oversee the compliance of this order and file status reports.‖
57. Further, it was specifically observed in the decision that the word forest must be understood according to its dictionary meaning, the discretion covers all statutory recognized forests, whether designated as reserved, protected or otherwise for the purpose of Section 2 (i) of the Forest Page 47 of 66 (Conservation) Act, 1980. The term „forest land‟, occurring in Section 2, will not only include „forest‟ as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest (Conservation) Act, 1980 are for the conservation of forest and matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. The Hon‟ble Apex Court had relied on the decisions reported in AIR 1986 SC 1620 (Rural Litigation and Entitlement Kendra Vs. State of U.P.) and AIR 1988 SC 2187 in W.P. (C) No.749 of 1995 (Supreme Court Monitoring Committee Vs. Mussorie Dehradun Development Authority and Ors.) and AIR 1985 SC 814 (State of Bihar Vs. Banshi Ram Modi and Ors.).
58. Further, in the decision reported in T.N. Godavarman Thirumulpad Vs. Union of India & Ors. (2006) 5 SCC 45, the Central Empowered Committee (CEC) came to the conclusion that the property allowed to M/s. Maruthi Clean Coal and Power Limited is not a forest, on the basis of the documents perused regarding the non-availability of the settlement records of the area of Nawagaon Khurd and it was not part of the village Ratija. It was part of Reserve Forest and none of the records showed that it was either shown as forest in the revenue records and also the questioned the bonafide of the applicant in filing the application, as he is not come with public interest as has been observed by the Hon‟ble Apex Court in S.P. Gupta Vs. Union of India & Anr. (1982) 2 SCR 365 and also the Hon‟ble Apex Court came to the conclusion that Geographical Information System (GIS) and Global Page 48 of 66 Positioning System (GPS) can be considered for the purpose of location and nature of land and came to the conclusion that this not a forest land.
59. Further, in the decision reported in T.N. Godavarman Thirumalpad Vs. Union of India & Ors. dated 23.11.2007 reported in (2008) 2 SCC 222, the Hon‟ble Apex Court had considered the question as to whether the land allotted to M/s. Vedanta Aluminium Limited is a forest or not. That was the case where M/s. Vedanta Aluminium Limited approached the Hon‟ble Apex Court seeking clearance for the proposal for use of 723.343 Ha. of land including 58.943 Ha. of Reserve Forest land in Lanjigarh Tehsil of Kalahandi District for setting up their alumina refinery. In that case, the Hon‟ble Apex Court had considered the principle of „Sustainable Development‟. But in that case, the Hon‟ble Apex Court did not grant permission to M/s. Vedanta Aluminium Limited and even in that case, they directed the Sterlite Industries India Limited to apply afresh. They did not make any observations regarding the particular land is forest land or not and admittedly in that case, the land was a Reserve Forest land and they wanted permission for conversion of the land and they wanted Forest Clearance.
60. In the decision reported in T.N. Godavarman Thirumulpad Vs. Union of India & Ors. (2016) 8 Scale 615, the Hon‟ble Apex Court had considered the recommendations made by the Central Empowered Committee for deletion of certain land from the forest area and in that case, the Hon‟ble Apex Court had disposed of the matter with the following directions:-
―Held, while disposing off the application:
(i) The CEC recommended the deletion of 10935.2611 hectares of land, put of the purview of the total land measuring 33607.9406 hectares, originally notified under Section 4, and while making these recommendations, just a in the first report of the CEC, it again imposed the same four conditions. Being Page 49 of 66 aggrieved of condition at (ii), imposed by the CEC, the Applicant, in whose favor an area of 730.60 hectares (including the aforesaid area of 364.22 hectares of land) had been granted an in - principle approval, for carrying on lime -
stone mining, which included the land deleted / excluded from the purview of the notification issued under Section 4. [10] and [11]
(ii) The order of the present Court in Banwasi Seva Ashram v. State of Uttar Pradesh was with reference to the transitory period, namely, from the date of the issuance of the notification under Section 4 of the Forest Act, till the culmination of the process of declaration under Section 20 of the Forest Act. The direction was inevitable, in view of the fact, that in case an individual was desirous of using forest land for non - forest purposes, permission under Section 2 of the Forest (Conservation) Act, 1980 was imperative, and it was therefore, that even during the transitory period, it would be open to the Ministry of Environment and Forests, to approve a request for use of forest area for non - forest purposes, under Section 2. [15]
(iii) The release of area measuring 364.22 hectares , which was the subject matter of consideration, was clear. Under Section 3 of the Indian Forest Act, 1927, the kinds of land which can be declared as reserved forest has been expressly delineated therein. [20] and [21]
(iv) In case of a deletion of an area, which was proposed to be declared as a reserved forest, the area so deleted will revert to the original nomenclature of the said area, i.e. , the nomenclature which the land had, prior to the issuance of the notification under Section 4 of the India Forest Act. Out of the kinds of land expressed in Section 3, it was apparent, that if the land notified under Section 4 was not forest land but waste land, or some other kind of land over which Government has proprietary rights, on the deletion of the area notified under Section 4, such land would stand restored to its original nomenclature as forest land and / or alternatively such type of land, such as waste land, over which the Government has proprietary rights. No clearance contemplated under Section 2 of the Forest (Conservation) Act, 1980, can be imposed on. It is only with reference to reserved forest land, or land which is notified for being declared as reserved forest, or forest land, that a clearance is contemplated under Section 2 of the Forest (Conservation) Act, 1980. The concerned competent authority shall, in the first instance, determine the nomenclature of the land deleted from the notification issued under Section 4 of the Indian Forest Act, 1927, prior to the notification. If it emerges, that the relevant land is forest land, then and then alone, the concerned competent authority will further determine, whether permission should be granted to the applicant to carry on non-forest operations, namely, mining operations for conducting limestone mining. If the released land was originally not forest land, no forest clearance would be required. The concerned competent authority was directed to take a final decision on the application filed by the Applicant under Section 3 of the Forest (Conservation) Act, 1980. [22], [23], [24] and [25]‖ Page 50 of 66
61. It has been observed that out of the kinds of land expressed in Section 3 of the Indian Forest Act, it is apparent that the land notified under Section 4 was not forest land, but waste land or some other kind of land, over which the Government had proprietary rights on the deletion of the areas notified under Section 4, such land would stand restored to its original nomenclature as forest land and/or alternatively such type of land, such as waste land, over which the Government has proprietary rights. No clearance contemplated under Section 2 of the Forest (Conservation) Act, 1980 can be insisted on. It is only with the reference to the reserved forest land, or land which is notified for being declared as reserved forest, or forest land, that a clearance is contemplated under Section 2 of the Forest (Conservation) Act, 1980. The concerned competent authority shall, in the first instance, determine the nomenclature of the land deleted from the notification issued under Section 4 of the Indian Forest Act, 1927, prior to the notification. If it emerges, that the relevant land is forest land, then and then alone, the concerned competent authority will further determine, whether permissions should be granted to the applicant to carry on non- forest operations, viz., mining operations for conducting lime stone mining. If the released land was originally not forest land, no Forest Clearance would be required. The concerned competent authority was directed to take a final decision on the application filed by the applicant under Section 3 of the Forest (Conservation) Act, 1980. There also no decision was taken by the Hon‟ble Apex Court as to whether the particular land is forest land or not and that was directed to be considered by the concerned competent authority.
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62. In this case also, it was observed that though certain lands were included in the Reserve Forest and subsequently, steps were taken to delete the same from the Reserve Forest character and in that case, it was observed that after the deletion, it was revert back to the original character of the land as reflected in the original revenue records. So, this also will give an indication that what was the nature of nomenclature given in the revenue records is relevant for the purpose of considering the status of the land, when considering the question as to whether the Forest (Conservation) Act, 1980 will apply or not.
63. In the decision reported in B.S. Sandhu Vs. Government of India & Ors. (2014) 12 SCC 172, the Hon‟ble Apex Court held that though by virtue of the notification, the entire land in a particular village was transferred in the name of the Forest Department for the purpose of administration of the land under the PLP Act, 1900, the Hon‟ble Apex Court held that this will not be sufficient to come to the conclusion that it will be deemed to be a forest for the purpose of Forest (Conservation) Act, 1980 when neither the revenue records nor any other government record shows it as a forest. Here also it was not mentioned as to whether it must be a Reserve Forest as notified under the Forest Act and the Hon‟ble Apex Court considered the question regarding the nature of land there, as almost all private lands and agricultural lands were also brought under the purview of the PLP Act, 1900 and a permission is required from the Forest Department for felling trees from that area. It was under such circumstances, the Hon‟ble Apex Court held that merely because certain lands were brought under the purview of the PLP Act, 1900, and listing the land in the records of the Forest Department will not be deemed to be a forest land for the purpose of Page 52 of 66 Forest (Conservation) Act. In that case also, the Hon‟ble Apex Court did not consider the question as to whether a particular land is a forest land or not coming within the definition of deemed forest but that question was directed to be considered by the Hon‟ble High Court and remitted back the matter for that purpose.
64. The decision reported in Himachal Pradesh Bust Stand Management and Development Authority Vs. The Central Empowered Committee & Ors. (2021) 4 SCC 309 when the decision of the National Green Tribunal directing demolition of certain buildings and structures made by the project proponent in the forest land, the Hon‟ble Apex Court observed that the National Green Tribunal has got power to go into those questions and in that case, construction was made in violation of the permissions granted by the MoEF&CC and the Hon‟ble Apex Court upheld the jurisdiction of this Tribunal to go into the question and upheld the decision of the National Green Tribunal. The Hon‟ble Apex Court also relied on the decision of the Apex Court in Bengaluru Development Authority Vs. Sudhakar Hegde (Civil Appeal No.2566 of 2019) observed that ―The Adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of environment is an interest component of development and growth‖. The Hon‟ble Apex Court in the decision reported in M.C. Mehta Vs. Union of India & Ors. (2018) 18 SCC 397, held that ―the land notified under the PLP Act, 1900 in the Kant Enclave was to be treated as forest land. As a result, any construction made on the land or its utilization for non-forest purposes without Central Government approval was violative of the Forest Act and therefore illegal.‖ Page 53 of 66
65. So, the Hon‟ble Apex Court in that decision distinguished the decision reported in B.S. Sandhu Vs. Government of India & Ors. (2014) 12 SCC
172. In M.C. Mehta Vs. Union of India & Ors. (2018) 11 Scale 50, and observed that any land that was included under the PLP Act, 1900 will be deemed to be a forest land and as such, it will come under the provisions of the Forest (Conservation) Act, if that land will have to be converted for non- forest purposes. The Hon‟ble Apex Court has distinguished the decision in B.S. Sandhu's case mentioned above.
66. In A. Narendraraja Vs. Government of Andhra Pradesh, Department of Mines and Geology and Ors. AIR 2008 AP 220, when the lease for mining activity granted to the writ petitioner was cancelled by the authorities on the ground that it falls in the Adavi Poramboke and the Hon‟ble High Court of Andhra Pradesh came to the conclusion on the basis of the materials available on record that merely because it was classified as Adavi Poramboke covered by rocks and also relied on the report of the Divisional Forest Officer, Chittoor (West) Division wherein, they have mentioned that the proposed land is situated 12 Kms from the Reserve Forest line of Kangudi R.L. and 5 Kms away from R.F. Line of B.M. Konda and it was not within their management and came to the conclusion that it cannot be treated as a forest and the cancellation was not proper. Since it was not noted as forest or reserve forest in the revenue records but only shown as Adavi Poramboke, it goes out of the purview of the T.N. Godavarman Thirumalpad‟s case. This decision cannot be said to be good law in view of the subsequent decisions of the Hon‟ble Apex Court discussed above. Page 54 of 66
67. In most of the cases, the question was decided on the basis of the facts and circumstances of the case. They have not considered the question if the land was shown as forest in the revenue records, whether the provisions of the Forest (Conservation) Act, 1980 will apply or not. In most of the cases, where directions were given by the Hon‟ble Apex Court was on the basis of the nature of land as revealed from the revenue records as agricultural lands or other lands and as such, it cannot be said that it was considered the question as to whether the land which was shown as forest or forest reserve, though it was not a notified forest in the revenue records, whether it will attract the provisions of the Forest (Conservation) Act, 1980 or not, in view of the expanded definition given by the Hon‟ble Apex Court in T.N. Godavarman Thirumalpad‟s case.
68. The above principles will have to be considered while considering the case in hand.
69. It was an admitted fact that Sy. No.1036/1 of Mallela Village was shown as Forest or Forest Reserve in the revenue records and it was in between the Mallela Reserve Forest North and South. So, it is enclosed by Reserve Forest. As regards Sy. No.1 of Udavangandla Village is concerned, it was shown only as a Hill. So, it cannot be treated as a forest for any purpose, unless there was evidence to show that it has tree growth resembling the forest. There was no material before this Tribunal as regards that part of the land is concerned. So, the question as to whether it will be a deemed forest for the purpose of bringing with the ambit of Forest (Conservation) Act, 1980 or not, will not be applicable to that part of the land. Page 55 of 66
70. It is an admitted fact that no permission under the Forest (Conservation) Act, 1980 was obtained for this project. In TN. Godavarman Thirumalpad‟s case, after expanding the scope of the forest to bring certain categories of forest also within the ambit of Forest (Conservation) Act, 1980, it was observed as follows:-
―The Forest Conservation Act will apply to 1) statutory recognized as forest, or 2) is a forest understood in the dictionary sense but also 3) an area recorded as forest in the government record.‖
71. So, it is clear from the above observation made by the Hon‟ble Apex Court that the intention of the Apex Court was to bring more areas within the purview of the Forest (Conservation) Act, 1980 to divert the same for non- forest activities and irrespective of the fact that it was notified forest or protected reserve forest or not, if it was entered in the revenue records as forest, then the provisions of the Forest (Conservation) Act, 1980 will apply irrespective of its ownership. The dictionary meaning of forest is extended to the private lands where there is a large spontaneous forest growth or not a planted area by the person who is enjoying the same and if it is covering large area of green cover with spontaneous growth, then it will have to be treated as forest extending the dictionary meaning of forest and that must be bring within the purview of the Forest (Conservation) Act, 1980 irrespective of its ownership. So, the question as to whether the particular land will have to be included in the question of deemed forest will arise only in respect of private land where more spontaneous tree growth are available in respect of large area which resembles the forest. So under such circumstances since the land in Sy. No.1036/1 was shown as Forest/ Reserve Forest in the revenue records by its nomenclature, even prior to Page 56 of 66 coming into the force of Forest (Conservation) Act, 1980, then it will have to be treated as a forest for the purpose of extended meaning of forest as observed by the Hon‟ble Apex Court in T.N. Godavarman Thirumalpad‟s case.
72. It is true that the documents produced by the 9th Respondent will go to show that after the directions issued by the Hon‟ble Apex Court, the State of Andhra Pradesh has taken steps to include several lands as forest and it was decaled as Reserve Forest and the Government never intended to include this area to be declared as reserve forest.
73. As regards patta lands are concerned, unless it comes within the definition of extended meaning of forest, it cannot be treated as forest. But the position will be different, if this was shown as Forest/Reserve Forest in the revenue records, though not declared or notified as Reserve Forest or Protected Forest under the Forest Act. It is not necessary always that for the purpose of bringing the definition of forest, there must be tall trees alone. This land was treated as Forest Reserve even in the revenue records though not declared as Reserve Forest, as it was lying in between the Reserve Forest, within an intention that it can be used for forest activity in later point of time.
74. Further, in this case, normally the view of the Forest Department in this aspect will have to be considered than the Revenue Department. In the minutes of the meetings held by the High power Committee constituted by this Tribunal including the Chief Secretary, Principal Secretary for Environment and Forest and it was observed that excluding the area of 30 Acres in Sy. No.1036/1 of Mallela Village allotted to this purpose may be Page 57 of 66 allotted to the Forest Department after getting suitable proposal for its notification. But the Principal Chief Conservator of Forests and Head of Forests Force categorically observed that the 30 Acres of land in Sy. No.1036/1 of Mallela Village has to be treated as forest land for the purpose of Forest (Conservation) Act and ultimately, the Committee had come to the conclusion that the meaning of the Reserve Forest Poramboke is that of the land earmarked for future development of forest. The T.N. Godavarman Thirumalpad‟s Judgment is applicable to all forest irrespective of the ownership of the classification and not to Poramboke, set apart for the purpose of development of forest in future. But they have observed that whose future land use is planned to be a forest. Once they came to the conclusion that it will have to be treated or planned in future for forest purpose or to be forest, they cannot now bifurcate the same into two categories, excluding a portion of the land as not forest in this regard.
75. So under such circumstances, this Tribunal is of the view that once it is shown as Forest land or Reserve Forest or Forest Reserve in the revenue records, even though it is not declared as protected or reserved forest under the Forest Act, but it will come under the purview of the Forest (Conservation) Act, 1980. So, the contention of the Government Departments that the Forest (Conservation) Act, 1980 is not applicable, cannot be accepted and we uphold the stand taken by the Principal Chief Conservator of Forest, Head of Forests Force and Chief Wildlife Warden that the land in Sy. No.1036/1 of Mallela Village which was shown as Reserve Forest/Forest has to be treated as forest land for the purpose of Forest (Conservation) Act, 1980, any activity done without obtaining prior clearance under the Forest (Conservation) Act, 1980 will be treated as an Page 58 of 66 illegal activity. It was not shown as Poramboke land or Adavi Poramboke as has been observed in the decisions relied on by the project proponent in A. Narendraraja Vs. Government of Andhra Pradesh, Department of Mines and Geology and Ors. reported in AIR 2008 AP 220 = 2008 AJHC NOC 928 AP, as in this case, it was not shown as Poramboke land, but it was specifically mentioned as Forest Reserve/Forest and it was enclosed in between the Mallela Reserve Forest which was notified under the Forest Act.
76. So, under such circumstances, we uphold the contention of the applicant that it is a forest land for the purpose of Forest (Conservation) Act, 1980 and any activity done without getting Forest Clearance (FC) is illegal.
77. Section 2 of the Forest Conservation Act, 1980 which reads as follows:-
"2. Restriction on the dereservation of forests or use of forest land for non-forest purpose.--
Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing,--
(i) that any reserved forest (within the meaning of the expression ―reserved forest‖ in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.‖ Page 59 of 66
78. It is clear from this that no activity other than forest activity can be permissible without obtaining prior clearance from the Government. In this case, admittedly, no clearance was obtained. It is true that the project that has been brought is an environment friendly project and also to promote renewable energy policy under the alternate energy projects exploiting the natural resources like solar and wind.
79. The contention of the 9th Respondent that permission ought to have been obtained by the State of Andhra Pradesh and the 9th Respondent has no responsibility to obtain the same, as the word mentioned is Government or any other authority. It may be mentioned here that a lease was granted in the joint names of the Government owned department and the 9 th Respondent jointly. They are the person who is executing the policy of the Government of establishing the wind mill project in this area. If it is being established by the Government itself, then it is for the Government to obtain the clearance and if it is by any other person or any other authority which includes the project proponent of a private nature, then the same will have to be obtained by the person in whose favour the lease was granted for the purpose of carrying out the project.
80. In this case, since the lease was granted jointly in favour of Respondents No.8 & 9 for the purpose of carrying out the project, it is them who have to obtain the clearance, as the 8th Respondent is being a Corporation of Andhra Pradesh will be deemed to be an authority for this purpose. So, the submission made by the learned counsel appearing for the 8th Respondent that there is no obligation on their part to obtain clearance, if at all it is required, cannot be accepted.
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81. Then the question is as to whether what is the nature of direction to be given in this case, whether it will have to be removed or it can be sustained with some compensation payable.
82. Since the project has already been accomplished and it is being an eco- friendly project, we feel that applying the principle of „Doctrine of Proportionality‟ as has been observed by the Hon‟ble Apex Court in Alembic Pharmaceuticals Ltd. Vs. Rohit Prajapati & Ors. 2020 SCC Online SC 347 and also in the recent decision of the Hon‟ble Apex Court in Pahwa Plastics Private Limited & Ors. Vs. Dastak NGO & Ors. in Civil Appeal No.4795 of 2021 (MANU/SC/0361/2022), observed that ex-post facto Environmental Clearance (EC) can be granted in exceptional circumstances relying on the decisions reported in Lafrage Umiam Mining Private Ltd. Vs. Union of India & Ors. (2011) 7 SCC 338.
83. In this case, considering the fact that it is a Government owned project established for the purpose of exploiting the natural resources for implementing the Central Government policy of renewable energy policy, using wind, we feel that there is no necessity to demolish or remove the same. Further, the project has been fully completed and it has already been commissioned as well. Under such circumstances, there is no meaning in directing the parties to apply for Forest Clearance (FC) under the Forest (Conservation) Act, 1980. Instead we feel that directing them to pay compensation and also undertake afforestation activities in twice the area i.e.60 Acres in the remaining area of Sy. No.1036/1 and that will be sufficient and will meet the ends of justice. But at the same time, since there was violation of Forest (Conservation) Act, 1980, in establishing the same, Page 61 of 66 we feel that an environmental compensation of Rupees Fifty Lakhs can be imposed against Respondents No.8 & 9 jointly and the said amount will have to be paid to the Principal Chief Conservator of Forests, Head of Forests Force and Chief Wildlife Warden, State of Andhra Pradesh within a period of two months and this amount can be utilized by the Principal Chief Conservator of Forests for the purpose of planting trees and other environment friendly activities to develop more green cover in the State of Andhra Pradesh in consultation with the Secretary for Environment and Forest, State of Andhra Pradesh, after getting necessary approval from the Government in this regard.
84. Apart from payment of compensation of Rupees Fifty Lakhs, the Respondents No.8 & 9 are directed to meet the expenses for planting native species which are suitable to rocky terrain in the land available in 30 Acres in Sy. No.1036/1 leased to them without affecting the project activities and also in twice the extent of land in Sy. No.1036/1 of Mallela Village i.e. 60 Acres by adopting latest innovative techniques developed by the Research Wing of Tamil Nadu Forest Department in consultation with the Forest Department. They may seek the help of Tamil Nadu Forest Department‟s Research Wing which developed innovative techniques to grow saplings on the sheet rocks and boulder sites of Anjin Hills of Krishnagiri District. The native species of Banyan, Peepal, Cluster Fig, Neem, Custard Apple which serve as a host to numerous birds and insects may be considered to enhance the biodiversity of the area. The expenses for the same and maintenance of the same for a period of five years has to be borne by Respondents No.8 & 9 who are the project proponents of the project.
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85. The Rock Afforestation programme is directed to be monitored by District Green Committee headed by District Collector and District Forest Officer as Member Secretary along with the experts in the field. A nominee of the project proponent also may be included in the committee. The State of Andhra Pradesh is directed to endeavour to promote rock afforestation in Sy. No.1036/1 of Mallela Village as far as possible at the rate of atleast 50 Acres per year and necessary fund for this purpose be provided to Forest Department over and above the regular budgetary provision.
86. Half yearly periodical report on this aspect be filed by the Principal Chief Conservator of Forests (CAMPA) and the District Collector to this Tribunal.
87. The points are answered accordingly.
88. In the result, this Original Application is allowed in part and disposed of with the following directions:-
(i) The area comprised in Sy. No.1036/1 of Mallela Village is a deemed forest for the purpose of Forest (Conservation) Act, 1980 and any activity done without obtaining prior clearance under the Forest (Conservation) Act, 1980 is illegal.
(ii) The establishment of windmill by Respondents No.8 & 9 in that land without obtaining clearance under the Forest (Conservation) Act, 1980 is in violation of Forest (Conservation) Act, 1980 and as such, they are liable to pay a compensation of Rupees Fifty Lakhs in favour of the Principal Chief Conservator of Forests, Head of Forests Force and Chief Wildlife Warden, State of Andhra Pradesh within Page 63 of 66 a period of 2 (Two) months and if the amount is not paid within that time, then the Principal Chief Conservator of Forests, Head of Forests Force and Chief Wildlife Warden, State of Andhra Pradesh is directed to take action for recovery of the amount in accordance with law.
(iii) If the amount is deposited or recovered, then the Principal Chief Conservator of Forests, Head of Forests Force and Chief Wildlife Warden, State of Andhra Pradesh is directed to utilize the amount for environment friendly activities of protecting environment and establishing green cover by planting trees and other activities, after framing a scheme in consultation with the Secretary for Environment and Forests, State of Andhra Pradesh and after getting necessary approval from the State of Andhra Pradesh either near the forest area or at any place which they feel that it required to control the global warming and arrest the effect of green house gases on environment.
(iv) The State of Andhra Pradesh is directed to notify the entire area in Sy. No.1036/1 of Mallela Village as Reserve Forest and hand over the same to the Forest Department under their management within a period of 4 (Four) months, as decided by them in the High Power Committee appointed by this Tribunal for considering these aspects.
(v) Apart from payment of compensation of Rupees Fifty Lakhs, the Respondents No.8 & 9 are directed to meet the expenses for planting native species which are suitable to rocky terrain in the land available in 30 Acres in Sy. No.1036/1 leased to Page 64 of 66 them without affecting the project activities and also in twice the extent of land in Sy. No.1036/1 of Mallela Village i.e. 60 Acres by adopting latest innovative techniques developed by the Research Wing of Tamil Nadu Forest Department in consultation with the Forest Department. They may seek the help of Tamil Nadu Forest Department‟s Research Wing which developed innovative techniques to grow saplings on the sheet rocks and boulder sites of Anjin Hills of Krishnagiri District. The native species of Banyan, Peepal, Cluster Fig, Neem, Custard Apple which serve as a host to numerous birds and insects may be considered to enhance the biodiversity of the area. The expenses for the same and maintenance of the same for a period of five years has to be borne by Respondents No.8 & 9 who are the project proponents of the project.
(vi) The Rock Afforestation programme is directed to be monitored by District Green Committee headed by District Collector and District Forest Officer as Member Secretary along with the experts in the field. A nominee of the project proponent also may be included in the committee. The State of Andhra Pradesh is directed to endeavour to promote rock afforestation in Sy. No.1036/1 of Mallela Village as far as possible at the rate of atleast 50 Acres per year and necessary fund for this purpose be provided to Forest Department over and above the regular budgetary provision.
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(vii) Half yearly periodical report on this aspect be filed by the Principal Chief Conservator of Forests (CAMPA) and the District Collector to this Tribunal.
(viii) Considering the circumstances, parties are directed to bear their respective cost in the application.
(ix) The Registry is directed to communicate this order to the MoEF&CC - New Delhi, Chief Secretary to Government, State of Andhra Pradesh, Special Chief Secretary for Environment and Forests, Principal Secretary for Revenue, the Principal Chief Conservator of Forests, Head of Forests Force and Chief Wildlife Warden, State of Andhra Pradesh for their information and compliance of directions.
(x) As and when the report is received, the Registry is directed to place the same before this Bench for consideration and issuing further directions (if any) required in this regard.
89. With the above observations and directions, this Original Application is disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.09/2017 (SZ) 19th April 2022. Mn.
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