National Green Tribunal
Nisarga Nature Club Through Shr. ... vs Kasim Sayed Ali Makander on 1 October, 2020
Item No. 04 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 97/2015 (WZ)
Nisarga Nature Club Applicant(s)
Versus
Kasim Sayed Ali Makander & Ors. Respondent(s)
Date of hearing: 01.10.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Applicant(s) : Mr. Rahul Choudhary, Advocate
For Respondent(s) : Mrs. Fawia Mesquita, Advocate for R-2 to 4
Mr. Shivshankar Swaminathan, Advocate for R-
4 to 22
Mrs. Ruchira Gupta and Mr. Anurag Sharma,
Advocates for GSPCB
ORDER
1. This original application has been filed with the following prayer:
"(a) For an Order directing the Resp. Nos. 1-3 to restore the forest to its original state on the portions of Sy. Nos. 193/0 and 194/0 totaling 12.25 ha, which have been demarcated as private forest, within fixed time frame.
(b) For an Order directing the Resp. No. 1 to remove all the structures that he has erected on the parts of Sy. No. 193/0 and 194/0 which have been demarcated as private forest within one month.
(c) For an Order directing the Resp. No. 1 to pay to the Resp.
Nos. 2 and 3 the costs required for restitution and restoration of forest on the Sy. Nos. 193/0 and 194/0 and for the environmental damage caused to the area."
2. A Joint Committee was constituted consisting (i) Principal Chief Conservator of Forests, (ii) District Collector and (iii) Goa State Pollution Control Board (SPCB) and was directed to submit a factual and action taken report and the Committee has submitted the report, relevant paragraphs, are as follows:
1"(i) There are total 42 houses/structures existing at the site in survey no. 193/0 and 194/0. The site plan and names of the occupants as prepared by Talathi of Bethora Saza and Field Surveyor are placed at Annexure "A Colly".
(ii) Earlier in 2016, Stop Work Order was issued to eight respondents on 21/01/2016 by the Court of the SDM / Dy. Collector and In-charge of Flying Squad, Ponda Goa to stop all illegal hill cutting / development activities in survey no. 193/0 & 194/0.
(iii) After conducting a detailed hearing and giving opportunity to the respondents, the Dy. Collector & SDO, Ponda, vide order dated 02/01/2020, has directed Shri, Aslam Sayyed (respondent no. 5 out of 8) to restore the land to its original form and undo the development carried out in survey no. 194/0 within a period of eight weeks, failing which the village panchayat may execute the restoration work and recover the costs as arrears of land revenue.
(iv) The Deputy Collector & SDO, vide letter dated 28/08/2020, has directed the Secretary of the Village Panchayat, Bethora to submit a report on completion of the eight weeks as regard to whether the said land is restored or not. Further, vide order dated 02/01/2020, Shri. Shabbir Deshpaik, Ms. Melissa DSilva and Shri. Umar Ali Khan (respondents 2, 3, and 4 out of 8, resp) were directed to submit change in zone certificate from the Town and Country Planning Department within 24 weeks failing which they shall restore the land to its original form and undo the construction work carried out by them.
(v) Shri Saiyed Ali Makandar, Mrs. Fatima Rafik Manikand Mrs. Reshma Khalid Hussain (Respondents no. 1, 7 & 8 out of the 8) along with others, had filed objections/representations before the Committee headed by Joint Secretary (Revenue) constituted by the Government of Goa to finalise a report on private forests submitted by the Review Committee, after considering the objections of affected parties whose properties are going to be identified as Private Forests. However, the Committee headed by Joint Secretary, Revenue did not consider the representations/ objections as the Committee's mandate was limited to finalise the report of the Review Committee on Sawant & Karapurkar Committees, whereas, these survey numbers in the present matter were provisionally identified by a Committee the North Goa District Committee also known as Thomas Committee constituted much later than the Sawant and Karapurkar Committees.
(vi) Further the Deputy Collector and SDO, Ponda vide order 20/08/2020 has rejected all the 20 applications received for the regularisation of the structures in survey no. 194/0 and 193/0 with directions to the applicants to restore the land to its original form and demolish the unauthorised structure within a period of six weeks failing which the structure shall be demolished by the Mamlatdar of Ponda Taluka and cost of demolition to be recovered from the applicant. The Deputy 2 Collector, Ponda has been directed by the Joint Inspecting Team not to allow any fresh construction in the properties which are the subject matter of present application and expeditiously take legal action for removal of the unauthorised structures.
(vii) The google maps and photographs of the land under Survey no. 193/0 & 194/0, photographs taken at the time of joint inspection and total structures in the said area are attached at Annexure "D Colly". It is submitted that the Survey No. 193/0 and 194/0 of Village Bethora, Ponda Taluka were not identified as private forest by earlier Sawant and Karapurkar Committees. These areas were provisionally identified as Private Forest by the Thomas Committee.
(viii) Further, the Government of Goa has already constituted a review committee headed by Chief Conservator of Forests vide Notification No. DCF(WP)/Pvt.For/16(THC)/2013 (WZ)/19-20 dated 21/01/2020 read with Notification No. DCF(WP)/Pvt.For/16(THC)/2013(WZ)/19-20/l19 dated 18/06/2020 to review the Private Forest areas identified by State Level Expert Committee for North & South Goa (Thomas & Araujo Committee). The survey numbers 194/0 and 193/0 of Bethora Village, Ponda Taluka which are the subject matter of present application, will be verified with respect to the criteria adopted by the State Government of Goa for inclusion or otherwise in the Private Forests.
(ix) It is, further, submitted that both State Level Expert Committee for North & South Goa (Thomas & Araujo Committee) provisionally identified private forest through ocular estimation. Whereas, the present Review Committee headed by Chief Conservator of Forests will take scientific inputs for verification of all the three criteria adopted by the state of Goa i.e. (i) crop composition of 75% or more of trees of forest species, (ii) the geographical area of 5 hectare or more if not contiguous to Government, Forests and (iii) The canopy density of 0.4 or more.
(x) In this regard as per approved methodology, the Committee is carrying out verification of canopy density through satellite data obtained from the Forest Survey of India, Dehradun a premier institution of the Ministry of Environment, Forest and Climate Change. Further, the Committee will carry out actual field verification as regards to criteria of forestry tree species in presence of respect landowners after giving them opportunity for filing objections. The present Committee has already received representations in respect of these survey numbers and will consider all relevant facts and documents before finalising the Private Forest in this regard."
3. It is argued on behalf of the learned counsel for the Respondent-
Mrs. Fawia Mesquita, Advocate that in Goa Foundation case the 3 parameter for taking decision has been considered by this Tribunal and matter has been finalised. It is also argued that this matter should also be referred to the Committee as mentioned by the Joint Committee.
4. Learned counsel for the applicant and the respondent had no objection at this point subject to the condition that they should be given an opportunity of hearing.
5. Learned counsel for the applicant had submitted that a Forest Committee has inspected the site and submitted, following observations:
"The Committee thereafter proceeded to the Survey Nos. 193 and 194 of village Bethoda, Ponda Taluka having a total area of about 22.5 ha situated on the left side of the bypass road of NH-4A between Curti Junction and Borim Junction.
...
The Committee members present went through the area and were of the opinion that the area fulfils the criteria of being classified as a private forest. As the area has vegetation of more than 0.4 density and is covered with predominantly forestry tree species with negligible presence of cashew trees."
5. That the affidavit filed by the Chief Conservator of Forests dated 3.05.2016 (pg. nos. 96-100) also clearly states that the Survey nos. are identified and demarcated as private forests:
"4. I state that in the instant matter the Sharma Committee appointed vide notification dated 3rd February 010 had visited the site on 19/04/2011, recording its opinion that the area fulfils the criteria of private forest. I state that thereafter, the term of the Committee was over and not much progress was made, the Government constituted the Thomas Committee on 27th November, 2012 which has Government officers as members and includes representatives of the Directorate of Settlement and Land Records and Private Members. The Thomas Committee visited the site on 26/02/2013 and 12/03/2014.
5. With respect to the land under Sy. Nos. 193 and 194 which is the subject matter of the present Application. I state that the Thomas Committee which is the existing Committee for North Goa Division, has deliberated on the 4 issue and concluded that the area under these two survey numbers conforms to the criteria of private forests. It is a fact that two cases of illegal felling of trees were booked by the Range Forest Officer and intimated to owner of the property on 2.12.2011 under the Goa Preservation of Trees Act, 1984. Subsequently, the Deputy Collector issued a stop work order on 18.05.2012."
6. That the affidavit filed by the Principle Chief Conservator of Forests dated 3.05.2016 (pg. nos. 101-105) also states that the Survey nos. are identified and demarcated as private forests and fall within the criteria as identified by the Government of Goa:
"3. I state that for any area to be identified and declared as Private Forest, initially the Committee constituted for the said purpose was to first locate the relevant areas having natural forest and occularly estimate is the vegetation is found to be fulfilling the three criteria i.e. more than 75% of the trees is to be of forest species, their canopy density to be more than 40% and their area in extent to be more than 5 ha. If not continguous to the Government forest.
4. I state that in the instant matter the Sharma Committee appointed vide notification dated 3rd February 010 had visited the site on 19/04/2011, recording its opinion that the area fulfils the criteria of private forest. I state that thereafter, the term of the Committee was over and not much progress was made, the Government constituted the Thomas Committee on 27th November, 2012 which has Government officers as members and includes representatives of the Directorate of Settlement and Land Records and Private Members. The Thomas Committee visited the site on 26/02.2013 and 12/03/2014.
5. With respect to the land under Sy. Nos. 193 and 194 which is the subject matter of the present Application. I state that the Thomas Committee which is the existing Committee for North Goa Division, has deliberated on the issue and concluded that the area under these two survey numbers conforms to the criteria of private forests."
7. That a letter was sent by the office of the Sub-Divisional Forest Officer to the Deputy Conservator of Forests, North Goa Division on 25.04.2016 (pg. nos. 116-117) informing the office that based on the two site inspections an area of 12.25 ha was delineated as forest land and a map was prepared:
"As to the land under Sy. Nos. 193 and 194 of Bethore village, the committee had last visited the site and inspected in detail on 12/03.2014, finding that part of two sy. nos. is fulfilling the criteria of Private Forest. On that day the surveyors of DSLR present with the committee were requested to survey the block which 5 fulfil the criteria of private forest as shown by the Committee. The DSLR surveyors subsequently surveyed the said private forest block and submitted its map to the committee. The said map includes almost northern half of sy. no. 194 & part of sy. no. 193 which is in between bypass and western border of sy. no. 194.
Now, the Committee giving due credit to the inspection report of Sharma Committee dated 19/04/2011 and subsequent inspection by this committee, unanimously decides that the land admeasuring 12.25 ha comprising parts of sy. no. 193 and 194 delinated in the said map prepared by the DSLR is a private forest."
6. It is argued that on the basis of the above report, it is abundantly clear that out of 22.5 ha that comprise Sy. No. 193 and 194, 12.25 ha has been clearly demarcated and delineated as forest land for which the District Surveyor has prepared a map, and that in the additional affidavit filed by the Chief Conservator of Forests which have been filed before the Hon'ble High Court of Bombay at Goa (Panaji) has relied on the survey of map dated 27.03.2015 and stated that 12.5 ha of survey nos. 193 and 194 is private forest land, and that the order dated 18.08.2020 was passed by this Tribunal in Original Application No. 479/2018 (WZ) titled Goa Foundation v. State of Goa and Ors. which originates from Writ Petition No. 673 of 2008 filed in the Hon'ble High Court of Bombay at Goa which sought the following relief:
"For an order or writ directing the Respondents to file a fresh report indicating demarcation of non-forest areas from forest areas solely in respect of survey numbers partially identified as forest that are listed in the Sawant and Kapurkar Committee Reports."
7. It is further submitted that the present survey nos. 193 and 194 were not a part of the Sawant and Kapurkar Committee Report and following reports thereafter i.e. the Deepshikha Sharma Committee and the D'Souza Committee Report. Therefore, it also does not find 6 mention in the final Review Committee Report submitted before this Tribunal. It is submitted that the scope of the Review Committee was limited to the verification of findings made in the Sawant and Kapurkar Committee qua the other Committees and does not include private forest areas in the State of Goa and that the 12.5 ha of the present survey nos. 193 and 194 has already been identified and demarcated as a private forest as per the private forest definition and is very dense forest having canopy density of over 40% and the only remedy thereafter sought is the removal of all encroachments made illegally on the said forest land so identified as per the map prepared by the District Surveyor of 2015.
8. Accordingly, we dispose of this application with directions to the State that the matter and sy. no. referred in this application may also be referred to the Committee considering the matter of private forest mentioned in the Joint Committee Report, and the committee may proceed in accordance with law and the parameter of policy adopted and accepted by the previous committee and taken into account in Goa Foundation case and respondent may be given an opportunity of hearing. Till finalisation of the report no cutting of the trees, or non-forest activities shall be conducted in the sy. no.
mentioned in the application.
9. Accordingly, Original Application No. 97/2015 (WZ) is finally disposed off.
Sheo Kumar Singh, JM Dr. Satyawan Singh Garbyal, EM MN 7