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Page 1 (J) Appln. No. 19 (THC) of 2013

BEFORE THE NATIONAL GREEN TRIBUNAL

(WESTERN ZONE) BENCH, PUNE

APPLICATOIN NO.19 (THC) OF 2013

CORAM:

HON’BLE SHRI JUSTICE V.R. KINGAONKAR

(JUDICIAL MEMBER)

HON’BLE DR. AJAY A. DESHPANDE

(EXPERT MEMBER)

B E T W E E N:

1. NISARGA,

a Registered Society,

Registered by its President,

Sandeep Azrenkar, with office at:

A-7, Kurtarkar Classic,

Near Power House,

Aquem, Margao, Goa.

2. THE GOA FOUNDATION,

A registered Society, represented

By its Secretary, Dr. Claude Alvares,

With office at: G-8, St. Britto’s Apartments,

Feira Alta, Mapusa, Goa.………APPLICANTS


A N D

1. ASSISTANT CONSERVATOR OF FORESTS,

Forest Department, North Goa Division,

Ponda,Goa

2. THE CHIEF CONSERVATOR OF FORESTS,

Maratha SamajBldg, Panaji, Goa.

Collector (North)

Panaji, Goa.

3. STATE OF GOA THROUGH CHIEF

Secretary, Secretariat,

Porvorim, Goa.

4. COLLECTOR (NORTH)

Panaji, Goa.

5. M/S. GOOD LUCK DEVELOPERS,

Ahmad Mansion, Ambaji,

Fatorda, Salcete, Goa.

6. FARIDA SALAM KHAN

2nd Floor, Ahmad Mansion, Ambaji, Fatorda, Salcete, Goa.

7. MUJIB KHAN

Chandra wada, H.No. 3303, Opp. Jawaharlal

H.S.School, Fatorda, Salcete, Goa.

8. SAYED ABDUL RAZAK

H.No. 485, Verna, Povalo, Salcete, Goa.

9. FATIMA IMRAN SHAIKH

H.No. 2559, Carojem, Cuncolim,

Salcete, Goa.


10. SHAIKH SALIA

Flat No. D-2, Gr.Floor.,MahanagarHsg

Society, Madel, Margao.

11. RAFIK KHAN,

F-5, Shilpa Apartments, Chandrawada,

Fatorda, Salcete, Goa.

12. DAMODAR KHUSHALI GAONKAR

R/o.Flat No. F-1, Valerona Plaza Bldg,

Murida, Fatorda, Margao,

13. SADANAND MOLU DESSAI

R/o. No. 6, Pradeep Apartments, Behind

P.W.D. Office, Margao.

14. NARENDRA S. MATKAR

H.No. 75, Ward No. 3, Budhwarpeth,

Ponda, Goa.

15. RAMESH BHIKARO NAIK.

C/o Vikrant Workshop, Tisk, Usgao,

Goa.

16. DIPALI DATTAPRASAD KAMAT

"Deep", Near Dada Vaidya School,

Sindhudurga, Curti, Ponda, Goa.

17. PRATIKSHA PREMNATH DESSAI

SF-I, Verekar Apartment, Silva Nagar,

Ponda, Goa.


18. ASHOK CHANDRAKANT GAUNS

TiskUsgao, Ponda, Goa.

19. MASTANSAB MAKTOOM HUSSEIN GOVE

C/o. A.K. Saudagar, G-4A, Rabiyan Yusuf

Enclave, Nagar Masjid, Ponda, Goa - 403 401.

20. DEEPA RAMESH PATIL

G-2, Sayyadri Villa, Near PMC School,

Khadpabandh, Ponda, Goa.

21. OLINDA AGUIAR

R/o Adan-wada, Mareaim, Tone, Ponda, Goa.

22. ABDUL SALAM KHAN

H.No. 205, 1, Marcel Bhoma, Banastari, Goa.

23. SHAIKH TARANNUM BI SADIK

R/oH.No. 14215, Durgabhat, Ponda, Goa.

24. RASHIKANT SHAMBU SALEKAR

Bhindem, Bethora, Ponda, Goa.

25. ABDUL MAJEED MOHAMMAD

Municipal Flat No. 11, Shantinagar,

Ponda, Goa.

26. NASEEMA S. KUNJU

Municipal Flat No. 11, Shantinagar,

Ponda, Goa.

27. AMEER SHAIKH ADAM

Flat No. FF/3, Sharifa Residency,

Naga Masjid, Ponda, Goa.


28. YOGESH UMESH SAWANT

Vadem, Ta1aulim, Ponda, Goa.

29. NITIN UMESH SAWANT

Vadem, Talaulim, Ponda, Goa.

30. SACHIN UMESH SAWANT

Vadem, Talaulim, Ponda, Goa.

31. HASAN ABDUL RAHMAN LASHKARVALE

H.No. 172/41, Shanti Nagar, Ponda, Goa.

32. AMJAD HASAN LAKSHARWALE

H.No. 172/41, Shanti Nagar, Ponda, Goa.

33. RAJ KUMARI M. SHARMA

Ram Bhavan, Khadapabandh, Ponda, Goa.

34. VISHNU B. SHINDE

B-5, VishnukamalHsg. Society, Nagazar,

Curti, Ponda, Goa.

35. FATIMA BI MUL1A

Al-AfmeenBungalow, Talem, Durghabhat,

Ponda, Goa.

36. PRADEEP PANDURANG NAIK

H.No. 172/47, Shantinagar, Ponda, Goa.

37. ALEXANDER A.A. ALBUQUERQUE

H.No. 121, Near the Chapel, Khadpabandh,

Ponda, Goa.

38. SHANTA ARUN GAUNEKAR

R/o.Nagueshi, Bandora, Ponda Goa.


39. AVA1ON FERRAO

H.No. 69, Sadan, Near Municipal Library,

Ponda, Goa.

40. MUNAF MULLA

H.No. 83, Haveli, Curti, Ponda, Goa.

41. VISHANT G.·NAIK

LaxmiNiwas, Near Mandar Building,

Shantinagar, Ponda, Goa.

42. SHAKIB SHAIKH

H.No. 223, Paptan Talli, Kavlem, Post

Bandora, Ponda, Goa.

43. MUJIB AHMED KHAN

C/o AbidUssen Khan, H.No. 21/11.

Damodar Nagar, Curti, Ponda.

44. NITESH N. NAIQUE TARI

H.No.869/2, "IshwarKunj",

Pandga1-Shiroda, Ponda, Goa.

45. AbhishekRai

H.No. 9-R, Alto Chicalim, Behind Cottage

Hospital, Vasco, Goa.

46. M/s. Shikargah Investment &Trdg. Pvt. Ltd.,

SuvarnBandekar B1dg, Swatantra Path,

Vasco.

47. Deepak AnantBandekar

Raj Tara Bldg, F.L. Gomes Road, Vasco, Goa.


48. M/s. Vishwas Warehousing &Trdg. Pvt. Ltd,

Dona Trisha, "C" Block, 1 stFl., Flat No. C/F1,

P.O.Box 239, Dona PauIa, TaIeigao Village,

Tiswadi, Goa.

49. Vrunda Dilip Camotim Ganekar

R/o A/202,DukleBhavan, Near Lourdes

Chapel, St. Inez, Panaji

50. Reshma Mustac Muzavor

R/o S-A UG~3, Models Millenium,

Caranzalem, Goa.

51. Amit M. Bandekar

R/o Flat No. 3, Door No. 50-94-9/e,Revathi

Apartments, Shantipuram, Visakhapatnam,

Andhra Pradesh.

52. Shri. Kasim Syed Ali Manander

H.No.10, Durgabhat, Ponda, Goa.

………RESPONDENTS

Counsel for Applicant(s):

Mrs.NormaAlvares, Advocate, with SupriyaDangare

Advocate.

Counsel for Respondent(s):

Mr. DattaprasadLavande, Advocate for Respondent

Nos.1 and 2.

F.M.Mesquita, Advocate, Mr. Pradeep Verekar

ACF/Shrikant R.Prabhu ACF for Respondent Nos. 3 &

4.


Mr.H.D.Naik, Advocate with Mr. NitinSardessari

Advocatefor Respondent No.5.

Mr.Ninad Laud, Advocate for Respondent No.30.

Mr. AmayPhadte, Advocate for Respondent No.51.

Mr.NitinSardessai, Advocates with P.Kuncolienkar

Advocate for Respondent No.52.

Date: August 8th, 2014

J U D G M E N T

1. Originally, the Applicants filed Writ Petition

No.277 of 2009, in the Hon’ble High Court of Bombay, at

Goa. In view of Bhopal Gas Peedith Mahila Udyog Sangathan

& Anr Vs Union of India” (2012) 8, SCC 326, theWrit Petition

came to be transferred to this Tribunal and is registered

as an Application noted above. The Applicant No.1, is a

registered society represented by its President, namely,

Sandeep Azrenkar. The Applicant No.2, is also registered

as a Society represented by its Secretary, namely, Dr.

Claude Alvares.

2. First four Respondents are the State Authorites.

Out of them, the Respondent Nos.1 and 2, are the

Assistant Conservator and Chief Conservator of Forests,

whereas, the Respondent No.4, is the Collector, North

Goa. The Respondent No.5, (M/s Good luck Developers),

is the purchaser of part of land Survey No.156/1-B, of


village Bethora, (PondaTaluka). Admittedly, he has

developed the said property for commercial/residential

purpose. The Respondent Nos.6 to 52, are the purchasers

of the various plots of the said property. Needless tosay,

they claim their rights through the Respondent No.5, who

will be referred hereinafter as ‘Developer’.

3. The case of the Applicants is that Survey

No.156/1-B of Bethora village is thickly forested since

times immemorial and had been inaccessible by road

until recently. This land is contiguous to the forest land.

There are various forest species of trees standing in the

said land and where, in fact, a large number of such trees

were existing prior to 1998. Somewhere in 2004, a new

bypass road was completed through the forests of Ponda,

which passes through the lands in village Bethora. The

Applicants noticed that some of the trees were selectively

felled at several places with ill-intention to thin forest

density and canopy cover. They also noticed that a part of

forest was being denuded by making inroads to prepare

the area for development. They made grievances to the

forest department by letter communication dated May,

28th 2005, addressed to His Excellency – the Governor for

protection of the forest areas. By filing a Writ Petition

No.334 of 2006, the Applicant No.2, sought demarcation

of forests on the private lands. The Hon’ble High Court


passed an interim order dated October 17th, 2006, in that

matter, directing the Authorities not to issue conservation

‘Sanad’ for any private property with tree cover without

approval of the forest department.

4. The Applicant No.1, learnt that there was a large

scale tree felling in Survey No.156/1-B, and that the

forest department had carried out a panchanama at the

spot. It was noticed upon due inquiry, in the month of

March,2008, that some people had cleared a part of

private forest and removed timber logs by using truck

vehicles. An offence was registered against unidentified

accused persons. On the date of panchanama i.e. on 29th

February, 2008, in all 120 trees, within area of 4Ha were

found to have been illegally cut of species including

Kinder, Matta and other forest species. There was no

permission obtained prior to felling of the trees. Those

trees were being felled with malafide intention to destroy

the forest cover, first with a view to support Application

for conversation ‘Sanad’, which could be considered by

the Respondent No.4.Though the Respondent No.1,

issued “No Objection Certificate” (NOC), dated 11.3.2008,

to the Additional Collector, stating that the land is not a

forest, yet it is illegal, incorrect and improper. The NOC

reveals that density of the tree cover as 0.3, but that is

shown without taking into account 120 trees, illegally


felled and actual canopy density available before 1998.

Foliage in the adjoining and surround areas and copious

that had regenerated on the plot testified to the fact that

the area was and still is ‘forest’ and, therefore, ought to

be declared as such by the Authorities. Land Survey

No.156/1-B, would certainly qualify to be declared as

‘Private Forest’ likewise other lands, notwithstanding the

fact that it was not so identified by Sawant or Karapurkar

Committees in the past. The Applicant No.1, approached

to the Chief Conservator of Forests (Respondent No.2) on

9.2.2009, with delegation of local villagers and requested

him to form a Committee of forest officers to survey the

plot to which he orally agreed. The Applicants came to

know that the Developer has been granted conservation

‘Sanad’ dated 3.3.2009 by the Respondent No.3. NOC

issued by the Respondent No.1, and the conversation

‘Sanad’ are illegal and liable to be quashed, being

contrary to the orders of the Hon’ble Supreme Court in

WP (Civil) No.202 of 1995i.e. Judgment in the matter

ofT.N.GodavarmanThirumulkpadvs Union of India (1997)2

SCC 267.The Applicants, therefore, seek quashing of NOC

as well as conversation ‘Sanad’. They also seek

restoration of land in question to its original status.

Hence the Application.


5. Byfiling reply affidavit, the Developer

(Respondent No.5) resisted the Application. He is the

main contesting Party. He denied that the land

SurveyNo.156/1-B, is a ‘Private Forest’. According to him,

the Application is filed much after the said land is

completely developed in all respects and therefore, the

Application is liable to be dismissed on account of delay

and latches. The Developer further alleges that adjoining

land Survey No.151/1A, is owned by one Shri.

VishwanathPrabhu and has already been fully developed.

But the Application is filed only against the development

in his land SurveyNo.156/1-B, selectively only after his

completing development, after obtaining all the

permissions and approvals. He averred that the

Application is thoroughly misconceived. He contended

that he purchased part of Survey No.156/1-B, of village

Bethora, and applied for sub-division of the property to

the office of the Town Planner, Ponda. The Sarpanch of

village Bethora, gave his NOC for causing sub-division of

the said land. According to him, the plot of land

purchased by him falls within ‘Settlement Zone’ and is

not at all a part of ‘private forest’ and as such, could be

developed for residential purpose. He asserted that as per

his Application, the Collector, North Goa, issued

conversion ‘Sanad’ in his favour for use of land to Non-


Agricultural purpose in terms of Section 32 of the Goa

Land Revenue Code, 1968. This conversion ‘Sanad’ was

issued after receiving consent from the Deputy

Conservator of Forests, North Goa Divisoin. The land was

not at all recognized as ‘private forest’ by the Revenue

Authority, State Level Expert Committee, headed by

Sawant and Dr. Karapurkar Committee. The density of

tree cover is less than 0.3 and that the land in question

did not meet the criteria fixed by the State Govt.

According to the Respondent No.5, he has incurred huge

expenditure for development of the property and,

therefore, now it would be inequitable to call upon him to

restore the land under the hypothetical assumption that

the disputed land is a ‘private forest’. He alleges that now,

the land should not be declared as ‘private forest’ at such

a belated stage, only because, the Applicants put forth

such claim on basis of Google Imaginary Maps. He

further alleges that he has purchased part of Survey

No.156/1-B, from one Smt. SharmilaSatish Tendulkar,

who is not a party to the present litigation and if any

such adverse order is passed then, her rights are likely to

be affected, without hearing her. On these premises, he

sought dismissal of the Application.

6. By filing affidavit in reply, the Respondent No.1,

resisted the Application on various grounds. He alleged


that NOC dated 11.3.1008, was issued by his predecessor

in the office to the Developer, in pursuance to the letter

dated 6.3.2007, issued by the Additional Collector, North

Goa, calling upon the report concerning applicability of

the Forest (Conservation) Act, 1980, for the purpose of

conversion of use of the land for NA use. He asserted that

he examined the issue and conducted physical

verification of Survey No.156/1-B, of village Bethora.

According to him, the plot in question does not fulfil the

criteria to be qualified as ‘private forest’, because canopy

density was only 0.3. He states that the classification of

‘private property’ under the private forests, as per the Goa

Govt. norms, is as follows:

(i) 75% of dense composition should be the forest

tree species,

(ii) The area should be contiguous to the Govt.

forest and have in isolation the minimum area

should be 5 Ha,

(iii) Canopy density should not be less than 0.4.

7. The contention of Assistant Conservator of

Forests, is that an offence was registered by the Rage

Forest Officer, Ponda against the owner of property for

illegal felling of the trees. The accused were put on trial in

case No.1231/PTA/2008/A (State vs Shaikh Musthaq


etc.), which is dismissed. He denied that the forest

department officials have colluded with the officers by

downplaying of the trees felled. He also denied that the

Google Imaginary Map indicates existence of private forest

at the location.

8. The Conservator of Forests (Respondent No2.), filed

similar affidavit. He referred case of ‘Shivanand Salgaonkar

Vs Tree Officer’ (Writ Petition No.162 of 1987) in which

Hon’ble High Court of Bombay, Bench at Goa, gave

certain directions. According to him, the guidelines were

derived in pursuance to the said Judgment and were

applied by Dr.Karapurkar Committee for identification of

‘private forests’. He pointed out that two (2) Expert

Committees, headed by Sawant and Dr. Karapurkar,

completed exercise partly of identifying the ‘private

forests’, based on the said criteria. He further pointed out

that the land in question was not identified by either

Committee, as ‘private forest’, nor it is recorded in the

Revenue Record as ‘private forest’. His case is that the

criteria for identification of ‘private forests’ is derived from

the guidelines issued by the Hon’ble High Court in the

above referred case. He denied that the report of Forests

Survey of India (FSI), is applicable for the purpose of

adopting the criteria to identify ‘private forests’.


9. It may be noted that the purchasers of the land

in question, did not file any separate affidavit. There are

rejoinders and additional affidavits filed by the parties,

but it is unessential to reproduce the same, inasmuch as

the repetition of fact and law, are required to be avoided.

It may be, however, stated that the Respondent No.30,

placed on record, written argument on his behalf, though

no separate reply affidavit was filed by him.

10. We have heard learned Counsel for the parties.

We have carefully perused the documents on record. The

issues which arise for determination in this case may be

stated as follows:

1. Whether the Application is barred by limitation

and as such liable to be dismissed?

2. Whether the disputed parcel of land bearing

Survey No.156/1-B, of Bethora village (PondaTaluka) is a ‘Private Forest’?

3. Whether the NOC issued by the Respondent No.1, and the conversion ‘Sanad’ issued by the Respondent No.4, in favour of Developer

(Respondent No.5) are liable to be quashed, being illegal and untenable in the eye of Law, being contrary to the provisions of the Forest (Conservation) Act, 1980?

4. Whether the Developer (Respondent No.5), is liable to restore the land in question to its original position or for any compensatory relief, due to deforestation, without prior permission of the competent Authority for felling of trees standing in the land Survey No.156/1-B?

11. Before we embark upon discussion of material

issues and rival contentions raised by the parties, it may


be stated that the core issue is, whether the land Survey

No.156/1-B, of village Bethora, is part of ‘private forest’ at

least to the extent of area purchased by the Developer? At

the outset, let it be noted that this land is not recognized

as ‘private forest’ in the Revenue Record till the date since

way back. It is an admitted fact that the Govt. of Goa

appointed two (2) Committees, namely; Sawant

Committee and thereafter Dr. Karapurkar Committee, to

identify ‘private forests’ in Goa in pursuance to the

directions of the Hon’ble Supreme Court in

“T.N.Godavarman Thirumulkpadvs Union of India”.Even

prior to that for State of Goa, guidelines were set out by

the Hon’ble High Court of Bombay, Bench at Goa, while

delivering the Judgment in Writ Petition No.162 of 1987

(Shivan and Salgaonkar Vs Tree Officer). The Hon’ble

High Court of Bombay, Bench at Goa, in its Judgment

dated 27.11.1990, held that the term “Forest” is not

specifically defined under the Forest (Conservation) Act,

1980 and as such, it has to be given dictionary meaning.

The guidelines for identification of the forest in private

property were formulated in 1991, as follows:

i) Extent of area: Long term viability of a piece of forest

land is an important consideration. Obviously, very

small patches of forest cannot be viable in the long

run from conservation Point of view. Therefore, a

minimum extent of area will have to be determined to


which the Forest (Cons.) Act, 1980 would be

applicable in private and revenue areas not recorded

as 'forest'. I propose that this area should be at least 5

hectares. It is not worthy that the Forest (Cons.) Act,

1980 and guidelines made there under do not

prescribe any such minimum area for application of

the Act.

ii) Proximity and/or contiguity: The proximity of the

private forests concerned to a larger forest area and /

or its contiguity with the later area should also be an

important aspect to consider while examining such

areas.

iii) Composition of crop: It is important to prescribe

minimum standards in terms of crop composition in

order to distinguish forest species from horticultural

species. This is particularly relevant in State like Goa

where occurrence of large number of cashew, jackfruit

and coconut trees in private areas is a common

feature. We may perhaps prescribe that at least 75 of

the crop should comprise of forest species.

iv) Crown density: It would not be meaningful to apply

the Forest (Cons.) Act, 1980 to degraded and open

areas under private ownership. Therefore, a minimum

crown density of 40% may be adopted as a standard

assessing the applicability of the Act in Such private

and revenue areas which are not recorded as 'forests'

in the land records.

12. In “T.N.Godavarman Thirumulkpadvs Union of India” the

Apex Court gave directions to all the States to constitute an Expert

Committee viz to :

(i) Identify areas which are "forests", irrespective of

whether they are so notified, recognised 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 degrade (denuded or cleared; and

(iii) Identify areas cover~ 'by" plantation trees'"

belonging to the Government and ongoing

those belonging to “private persons.'

13. Pursuant to the said order the Govt. of Goa

constituted a Committee on 24.1.1997, headed by Shri.

Sandand Sawant. The Committee completed authorized

work and submitted its report on 4.7.1997. The relevant

factors as stated for identification of the forests as per the

guidelines issued by Govt. of Goa for the purpose of

identifying forests were as follows:

(i) 75% of dense composition should be the

forest tree species,

(ii) The area should be contiguous to the Govt.

forest and have in isolation the minimum

area should be 5 Ha,

(iii) Canopy density should not be less than 0.4

(i.e. 40%).

14. The second interim report of Sawant Committee,

categorically rejected Satellite Imaginary and Topo-sheets,

as one of the criteria for identifying the ‘forest’, for the

reason that it would at the best show natural green cover,

which would include plantations, seasonal crops etc. and


the same cannot be a relevant consideration for

classifying the ‘forests’. This part of the second interim

report of Sawant Committee, is rather significant

inasmuch as now, the arguments of the Applicants is

based upon the same criteria, which they seek to be used.

What the Applicants have contended is that the Google

Imaginary maps along with the reports that the area

could be ‘open forests’ at one point of time, go to show

that it is part of denuded forest, which has been cleared

by the Developer. In our opinion, once criteria of Google

Imaginary maps and Topo-sheets, is given descent burial

by the second interim report of Sawant Committee, it

would be unjust and improper to reapply and reconsider

the same criteria for the present case. One cannot be

oblivious of the fact that otherwise also the Google

Imaginary impressions are likely to give incorrect

information, because the presence of greencover may

include presence of shrubs, natural plantations, crops,

non-forestry species of trees so on and so forth. The

canopy density of such vegetation will have to be

discounted for the purpose of identification of private

forests.

15. Admittedly, Dr. Karapurkar Committee was the

second Committee, appointed by Govt. of Goa for

identification of forest lands in the State. Neither Sawant


Committee, nor Dr. Karapurkar Committee, has identified

land survey No.156/1-B, as ‘private forest’. There is

hardly any evidence to show that the part of said land

purchased by the Developer, is contiguous to the Govt.

forests. As stated before, the said parcel of land is not

recorded as ‘private forest’ in the revenue record. Thus,

looked from any angle, it is difficult to say that the said

land is a ‘’private forest’.

16. On behalf of the Applicants, learned Counsel

invited our attention to recitals of the Panchanama dated

29th February, 2008. Perusal of the Panchanama, reveals

that it was prepared by the Forest beatofficer in presence

of two Panch witnesses. The witnesses found that in or

about one and half month, 120 trees might have been

felled in the area of about 4 Ha. The description of trees,

would show that some of the trees were of forestry

species. It also is a fact that the area was found to be

cleared after felling of the trees standing in the land

before 4.3.2008. We may take note that as revealed from

the Report, on the day of inspection, crown density was

found to be around 0.2 to 0.3. It is stated that adjoining

areas of the land on north as well as west side was having

thick vegetation with crown density of 0.6 to 0.8. The

Committee couldnot give any opinion in view of the

pendency of matters before the Hon’ble High Court.


Another Committee, headed by Santosh Kumar, Assistant

Conservator of Forests, submitted report to the Hon’ble

High Court of Bombay, Bench at Goa, after inspection

dated 30th March, 2010. It is pertinent to note that during

course of such inspection, the Committee noted that

plantation area is more than 5 Ha. The crown density is

much less than 0.4. It is most important to note that the

three (3) Members Committee, took into account 120

trees, which were felled and assumed that if that would

not have been felled and were found standing, then also

in the opinion of the Committee, the crown density still

could be less than 0.4. Considering this assumptive fact

too the Committee gave opinion that the land in question,

does not qualify to be a forest land.

17. Much emphasis was given on the observations of

the Indian State of Forests Report, 2009. The classifying

scheme of forest cover map, as per ISFR is as follows:

Very Dense Forest All lands with tree cover of canopy

density of 70% and above.

Moderately Dense Forest

All lands with tree cover of canopy

density between 40% and 70%.

Open Forest All lands with tree cover of canopy

density between 10% and 40%.

Scrub Degraded forest lands with canopy

density less than 10%

Non-forest Any area not included in the above

classes.


18. It is argued by the learned Counsel for the

Applicants that the lands with tree cover of canopy

density between 10% and 40%, could be termed as ‘open

forest’. It is further argued that when the Developer

deforested a part of the land, it is difficult to make

identification without taking a realistic view, based upon

hypothesis like possibility, deforestation and conduct of

the Developer. It is pointed out that deforestation work

was done, muchprior to seeking the conversion ‘Sanad’. It

is also pointed out that NOC was issued by the ACF in

hush-hush manner and could not be treated as an

approval of the forest department. We deem it proper to

accept the part of such argument. In our opinion,

conduct of Developer shows that without obtaining

permission for tree cutting a large number of trees were

felled from land Survey No.156/1-B, in or about in the

month of February, 2008. Many of felled trees were burnt

and some logs were found at the spot. From conduct of

the Developer, it is emphasized that he personally or

through some henchman got the area fired with a view to

seek NOCs from the Forest Department. We do not,

however, find merit in the argument that the land in

question, is a private forest, but was shown having

density of less than 0.3, in order to suppress true facts.


We have not come across any tangible material to reach

such conclusion.

19. The legal position is further clear from the

Judgment in “Tata Housing Development Co. Ltd &AnrVs

Goa Foundation and Ors” (2003 11 SCC 714). The Apex

Court, in the given case held that:

“When the earlier two (2) reports indicated that

the plaint in question did not specify the required

criteria for identification thereof as a private

forest, 3rd SLEC report submitted contrary to the

earlier two (2) reports, could not have been

accepted by the Hon’ble High Court. “

The present case stands on similar footing and,

therefore, we find it difficult to countenance the

argument of the Applicants, which is mainly upon Google

Imaginary maps and SFR observations in the context of

‘open forests’ classification, which is not yet categorized

under any definition, within the meaning of the Forest

(Conservation) Act, 1980, or the criteria adopted by the

State Govt.

20. Taking stock of the foregoing discussion and the

reasons, we are of the opinion that the Application is

destitute of substance. However, it is manifest that the

Developer got cleared part of the area without obtaining

prior permission for felling of trees in his overzealous


attempt to obtain NOC from the Forest Department. The

Developer wanted to commence the development process

as expeditiously as possible. His attempt was to make

early profiting business. The Law should not have been

broken by him in doing such development activities,

either by himself or through any Agency. His acquittal

from criminal charges, would not absolve him from

civilliability/responsibility. He did not give any report

about the incident of felling of trees from his property to

the police. He did not take any action against the culprits,

nor did he make any attempt to arrest further loss of

vegetation by taking early action, when felling of the trees

was noticed. It cannot be said that he might not have

noticed felling of trees immediately. His conduct of

keeping silence by itself would amount to connivance or

attempt to willful removal of the trees/degradation of

environment. Hence, he is liable for compensatory

afforestation.

21. In the result, we partly allow the Application and

partly dismiss the same as follows:

(I) The Application, as regards main prayers in

respect of declaration and restoration of

land, is dismissed.

(II) The Respondent No.5, (Developer), is

directed to pay an amount of Rs.24,00,000/-


(Twenty Four lakhs) for the purpose of

afforestation, which shall be credited to the

account of State Forest Department,within

period of four (4) weeks. If the Amount is not

so credited then it be recovered with interest

@ 18% P.A. from today till date of recovery

and shall be utilized for afforestation

purpose.

(III) The Chief Conservator of Forest, shall give

six (6) monthly report about the progress of

afforestation work to this Tribunal.

(IV) The above amount shall be deposited by the

Respondent No.5, in the office of Chief

Conservator of Forests, State of Goa within

period of four (4) weeks. In default of

payment, all the properties of the

Respondent No.5, shall be confiscated and

sold in auction by the Collector, North Goa,

and sale proceeds shall be deposited with the

office of Conservator of Forests, as if, it is

land revenue arrears.

(V) The Respondent No.5, shall pay Rs.

1,00,000/- (One lakh) as costs of litigation to

the Applicants and shall bear his own costs.


…….…………….………………., JM

(Justice V. R. Kingaonkar)

…...….…….……………………., EM

(Dr. Ajay.A. Deshpande)

Date : August 8th,2014.


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