National Green Tribunal
Bombay Environment Action Group vs Union Of India on 27 October, 2020
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 04 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 108/2018
(Earlier O.A.No.66/2016(WZ)
Bombay Environment Action Group Applicant
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 27.10.2020
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant: Mr. Sanjay Upadhyay, Advocate
Respondent(s): Mr. Rahul Garg, Advocate for R-1
Mr. Nitin P. Deshpande, Advocate for R-2&5
Mr. K.D. Kelkar, Advocate for R-6&7
Mr. Dilip Taur, Advocate
ORDER
1. The issue for consideration is non-forest development activities in the 'forest alike areas' called 'Vansadrushya' in Mahabaleshwar and Panchgani Region in Maharashtra in violation of the Forest (Conservation) Act, 1980, as defined in the Supreme Court judgements.
The applicant seeks demolition of structures illegally constructed in the above areas without following the procedure prescribed under the provisions of Forest (Conservation) Act, 1980. According to the applicant, the Zonal Master Plan/Regional Plan prepared for Municipal Council areas of Mahabaleshwar and Panchgani under section 15(1) of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act) specifies the 1 'Forest Alike' areas. The area was declared Eco Sensitive Zone as per notification dated 17.01.2001. However, the 'High Level Monitoring Committee' in its meeting held on 29.02.2016 held that the area may not be treated as 'Forest Area' till completion of process for identification. This decision is in conflict with the judgment of the Hon'ble Supreme Court in T.N. Godavarman Thirumalpad Vs. Union of India & Ors, (1997) 2 SCC 267.
2. The matter was earlier considered by this Tribunal vide order dated 13.3.2019. After giving the particulars of the forest areas and the prohibition applicable against any non-forest activity therein, it was observed:
"8. In view of law laid down by the Hon'ble Supreme Court in T.N. Godavarman Thirumalpad Vs. Union of India & Ors. (supra), once the area is 'deemed forest' as per the ordinary dictionary meaning, irrespective of whether it is so recorded as such or not, Forest (Conservation) Act, 1980 is attracted. No non-forest activity in such area can be permitted in violation of law. All the permissions granted may have accordingly to be reviewed in the light of the judgment of the Hon'ble Supreme Court T.N. Godavarman Thirumalpad Vs. Union of India & Ors. (supra) and the notification of the MoEF & CC dated 17.01.2001, declaring the area to be Eco- sensitive zone.
9. For this purpose, we direct constitution of a Joint Committee comprising of representatives of Chief Conservator of Forest, Kolhapur and Divisional Commissioner, Pune. The Committee may look into this aspect and compile information about the extent of area which is covered by the expression 'forest' in the light of the judgment of Hon'ble Supreme Court, in the area in question. The Chief Conservator of Forest, Kolhapur will be the nodal agency for coordination and compliance. It is open to the parties to present their respective versions within two weeks before the Committee from today. The Committee may give its report within three months."
3. The matter was further considered on 03.12.2019. After referring to the earlier interim orders of the Tribunal dated 08.09.2016 and 22.3.2017 against constructions in forest alike areas, it was observed that only action required is to identify the encroachments and enforce 2 the law. Accordingly, the Tribunal directed the Mahabaleshwar Hill Station Municipal Council, the Panchgani Hill Station Municipal Council, the District Collector, Satara and the Chief Conservator of Forest (CCF), Kohlapur, to file a report about the action taken in the matter. In the course of consideration, the Tribunal observed:
"3. Order dated 22.03.2017 reveals that map showing ESZ in the entire Panchgani and Mahabaleshwar identifying the forest, forest alike/Vanasadrushya areas were available. It had been recorded clearly that the only action that was required to be taken thereafter was to identify the structures or encroachments for the purpose of the Forest (Conservation) Act, 1980 with reference to the maps of the areas which were admittedly available. Direction was thus issued upon the Regional Officer of the MoEF &CC to hold a meeting on 6 th & 7th April, 2017 with the District Collector, Satara, the Mahabaleshwar Hill-station Municipal Council, the Panchgani Hill- station Municipal Council, the District Forest Officer, Town Planning Department, and the DSLR Satara, to identify the area/s where violations of the Forest (Conservation) Act, 1980 have taken place with reference to the maps of ESZ and chalk out an action plan for enforcing provisions of the Forest (Conservation) Act, 1980 and place the plan before us.
4. The records reveal that the above order has still not been complied with although the case had been taken up on several dates stretching to more than 2½ years from 22.03.2017. It would be apparent from the facts and circumstances appearing in the case that primarily two questions arise for consideration, namely, (1) Whether there has been any violation of the provisions of Forest (Conservation) Act, 1980; (2) Whether such forest which falls within the ESZ after it was declared brings within its ambit structures which are in existence and, (3) Whether new construction have come up in violation of both the regulations. Considering the lapse of time, these informations ought to have been furnished by now. There appears to be relentless effort on the part of the authorities to delay the process giving fillip and encouragement to violators despite the order of prohibition dated 08.09.2016.
5. We, therefore, direct the Mahabaleshwar Hill Station Municipal Council, the Panchgani Hill Station Municipal Council, the District Collector, Satara and the Chief Conservator of Forest (CCF), Kohlapur, to file a report on the following:
1. Number of cases filed under Section 2 of the Forest (Conservation) Act, 1980 against those in violation of the said law.
2. Number of structures that existed in the declared ESZ prior to its Notification.3
3. Action taken against such structures which have come up in violation of the Forest (Conservation) Act, 1980 and ESZ Notification."
4. In above background, the Chief Conservator of Forests, Kolhapur has filed affidavit dated 26.10.2020 as follows:
"11. I say that this Hon'ble Tribunal in its order dated 13.03.2019 in paragraph No. 1 has noted the recommendation of the High Level Monitoring Committee (HLMC) that the area shown as per Schedule "A" to the Notification dated 07.08.2015 may not be treated as "Forest Area". In paragraph No. 4, this Tribunal has also noted the Affidavits filed on behalf of the different official Respondents that the HLMC has to finalize the issue of Forest Alike areas. In the light of this position, it was pleased to direct constitution of a joint committee, comprising of representatives of Chief Conservator of Forests, Satara and Divisional Commissioner, Pune. The Committee was directed to look into this aspect and compile information about the extent of area, which is covered by the expression, "Forest" in the light of the Judgment of Hon'ble Supreme Court in the area in question. It is open to the parties to present their respective versions within two weeks before the committee from the date of the order.
12. As per this order, the entire machinery geared up in action and has tendered detailed report to this Hon'ble Tribunal well in time.
13. It is submitted that the Government did not find sufficient time to invite objections and suggestions from the individual stakeholders before submitting the report to this Hon'ble Tribunal in pursuance to the order dated 13.03.2019.
As can be seen from the Annexure-R3, at places, forest alike area and the Government notified gaothans (Village sites) overlap i.e. even existing notified gaothans are seen to be part of such forest alike areas. Therefore, it is necessary to revisit the survey carried out by Land Record Department and in view of this, it is proposed to follow the time Schedule as annexed in Annexure-R4.
14. The situation in the forest alike areas as realized is as under:
Number of structures which were existing before mapping i.e. prior to 2007 were 38 with permission & 121 without permission, are still in existence. Annexure-R5. Total area mapped was fully forest alike 10909.09 H.a. & partial forest alike 2162.76 H.a. Total area 13071.85 H.a. forest alike. From city area total 330.30 H.a. area is mapped. Annexure-R6 The survey maps include 9 gaothans. The entire area of 9 villages includes fully & partially forest alike areas, which comprises of 5.79 H.a. area.4
Out of which, forest land which is declared as a private forest under the Private Forest Act is 10089.07 H.a. It cannot be termed as forest alike areas.
Existing structures are not shown in these maps. Some of the areas are already declared as forest. Such area can not be "Forest Alike Area"
I say that, the survey of 2007 comprises of notified forest as well. There are overlapping as explained above. The survey of 2007 was without concurrence of the committee constituted for identification of such forest alike areas in the State by order of Hon'ble Supreme Court and consequential Government circular dated 30.05.1997. That way, even the objection taken by HLMC will be taken care of and further complications will be avoided.
15. I say that this Hon'ble Tribunal in its order dated 11.10.2018 has observed that in case, there are certain violators, then they would be taken care of by the Respondent/Authority, only after the judgment passed by this Tribunal in consequence thereof S.D.O. Wai as well as the Chief Officer, Mahableshwar Hill Station Municipal Council and the Chief Officer, Panchgani Hill Station Municipal Council have already issued notices to the violators. The Notices would be heard, but the final order will be passed only after the judgement of this Hon'ble Tribunal.
The forest department is in the process of issuing notices to the violators to show cause as to why proposals for action under Forest Conservation Act should not be initiated against them.
16. As regards the violation of the provisions of Forest Conservation Act, it is submitted that under sub rule 9 of the Forest (Conservation) Rules, 2003, the Central Government has authorized the Regional Chief Conservator of Forest, MoEF, Government of India, New Delhi. Hence, after re-verification violation reports will be sent to him for suitable action at this level after following due process of law including observations of the principles of natural justice.
17. I say that the Supreme Court in case of Chief Conservator of Forests, Government of A.P. Appellant v/s Collector & Others, AIR 2003 SC 1805 has expected the Departments of the State Government to resolve the issues amongst themselves and then come to the court with a unanimous stand. In the light of law as laid down by the Hon'ble Supreme Court, the State Government has taken a conscious decision of sticking to the schedule mentioned above and report this Hon'ble Tribunal.
18. it would not be out of place to mention that as per the Orders of the Hon'ble Bombay High Court, report was submitted to it regarding Forest Alike areas. As per the order dated 13.03.2019, the Committee constituted by this Hon'ble Tribunal has invited say from Public and submitted detailed report to this Hon'ble Tribunal. The order dated 08.09.2016 of this Hon'ble Tribunal of restraining non- forest activity in the "Forest Alike" areas in Mahabaleshwar and Panchgani Eco-sensitive zone areas is followed in letter and spirit. There is no tree felling in violation of ESZ Notification dated 5 17.01.2001. New Development/Construction Activities in Forest Alike areas are stopped. The Government is serious about preserving forest areas in Mahabaleshwar and Panchgani regions.
19. I say that the State Government will have to take action against illegal structure raised in the Forest Alike Areas. In order to avoid law and order problem and avoidable further litigation, the State Government proposes that the committee constituted for identification of such forest alike areas in the State by order of the Hon'ble Supreme Court and consequential Government Circular dated 30.05.1997, will invite objections and suggestions from all the stakeholders. That way the objection taken by sub-committee of HLMC will be taken care of.
Therefore, the State Government be permitted to act as per the Schedule referred as Annexure-R4 attached as mentioned above and report to this Hon'ble Tribunal.
20. I may be permitted to place one more thing on record. The State Government wishes to fine-tune its survey by utilizing satellite image of the year 2007 (when the survey was done), 2015 (when the final notification of the Regional Plan was issued) and current images. The Government wishes to procure these images from NRSC Nagpur. The satellite images will be superimposed with the village maps and the survey maps with the help of GIS like modern techniques."
5. The schedule for the proposed action is as follows:
"(i) The State Government will forthwith constitute a committee under the Chairmanship of Collector, Satara and DCF, Satara and Superintendent of Land Records, as its members to revisit the surveyed area .........date- 10.11.2020.
(ii) This Committee will procure all the maps of Forest Alike areas within a period of 15 days from the date of its constitution ........
date- 25.11.2020.
(iii) It will procure satellite images of all the lands in Mahabaleshwar and Panchgani regions within 15 days thereafter .............. date- 10.12.2020.
(iv) The Committee will conduct ground truthing and verification of satellite maps and field verification in three months ............ Date- 31.03.2021.
(v) The Notification of the State Government dated 07.08.2015 has directed that Compendium of the Forest Alike areas shall be prepared containing survey number, total plot area and the Forest Alike areas for each plot. The Committee shall ensure that as per the said Notification the Compendium shall be put up on the Government web-site for easy public access. The Committee, then, will host the 6 Compendium on the Govt. website within 15 days after completion of the field verification ............. Date-15.04.2021.
(vi) Thereafter, the Committee will invite objections and suggestions from the public, give hearing to those who have objected and submit its report to the State Committee constituted as per the order of the Hon'ble Supreme Court .......... Date-31.02.2021.
(vii) After this, the said list will be finalized after following due legal procedure .......... Date-31.05.2022."
6. From the above, it is clear that there are forest alike areas identified as such and there are encroachments in violation of law. Order of this Tribunal dated 13.3.2019 was passed one and half year back with directions for remedial action. It was observed that the High-powered Committee under the MRTP Act could not take any decision in violation of the Supreme Court judgement. In respect of such identified encroachments, no further procedure remains to be followed, except the verification as proposed for which three months' time should be enough.
The schedule proposed assumes that nothing has been done so far and action is to start only now. Since all relevant data is available, the timeline needs to be shortened. The authorities should not think of unending exercise in violation of declared law of the land. Plan has to be now for action as per law promptly.
7. Accordingly, let the verification process be completed positively by 31.01.2021, to the extent such work is still pending. Thereafter, in respect of such area as is found to be encroached in violation of the Forest (Conservation) Act, 1980, the Collector, Satara and the Forest Department may straightaway proceed to remove the encroachments for which no approval of MoEF&CC will be required, even if such area is part of the ESZ. Area being in ESZ does not mean that law is not to be enforced there.
78. Action taken report as on 31.03.2021 may be filed before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
List again on 18.05.2021.
Adarsh Kumar Goel, CP S.K. Singh, JM Dr. S.S. Garbyal, EM Dr. Nagin Nanda, EM October 27, 2020 Original Application No. 108/2018 (Earlier O.A.No.66/2016(WZ) DV 8