The Goa Foundation Vs State of Goa Anr.

 
Judicial and Expert Members: Justice V.R. Kingaonkar, Dr. AjayA.Deshpande
 
Keywords: Identification of forests, Canopy density, Forest Conservation Act, non forestry purposes, dense forest cover
 
Applications disposed of
 
Date: 30 July 2014.
 
The Tribunal delivered a common Judgment, as both Applications, raised related and identical dispute regarding the issue of setting the criteria for identification of forests in the State of Goa and implementation thereof. Both these Applications, have been filed by Goa Foundation, which is a society registered under the Societies Registration Act, 1960. Application No.14 (THC) of 2013, challenged the criteria that are applied in Goa for identification of private forest, Application No.16 (THC) of 2013, prays for identification of degraded forest lands and early completion of identification of private forests. The Applications were filed for pursuing the issue of identification and demarcation of private forests in the State of Goa, as a result of the order of Supreme Court of India in Godavarman’s case dated 12.12.1996. The Applicants submitted that as per this order, the State Governments were required to identify and demarcate the forest areas and degraded forest areas. The Applicants submitted that subsequent to the said order, the State Govt. of Goa, had set up two consecutive Expert Committees in 1997 and 2000 to identify the private forest in the State of Goa on private and revenue lands. These two Committees relied on guidelines prepared by Goa Forest department in 1991, prior to the order in Godavarman’s case. These guidelines and criteria were issued as a result of compliance of the Judgment of High Tribunal of Bombay, Goa Bench, in the matter of Shivanand Salvekar v. Tree Officer (WP No.162 of 1987), declaring that the Forest (Conservation) Act, 1980, is also applied to the ‘forests’ on the private and revenue lands. The criteria adopted by these Committees to identify the areas as a ‘ forest’ would be as follows: 75% of tree composition should be the forestry species, The area should be contiguous to the Govt. forest and if in isolation, the minimum area should be 5 Ha. The Applicants submitted that there is no basis for criteria related to canopy density, as the Canopy density should not be less than 0.4. several forest areas, which are presently degraded and having canopy density of less than 0.4, but which were originally dense or medium dense forests and which must accordingly be identified as forests. The Applicants submitted that such lands cannot be unilaterally diverted to non-forestry purpose, except with prior approval under the Forest (Conservation) Act, 1980. In fact, if the criteria No.3, was accepted, there would be no way of complying the directions given in terms of reference No.2 of the  Supreme Court order dated 12.12.1996. It is also submission of the Applicants that the Forest (Conservation) Act, 1980, is a Central Legislation and, therefore, any criteria used for defining any land as ‘forest’ or ‘non-forest’, would have to be approved by the Central Govt. i.e. the Respondent No.2, and there is no document on record to show these criteria are approved by the Central Govt.
 
The Applicants submit that as per the Forest Survey of India, the Respondent No.3, forest vegetation in the country falls specifically in three mutually inclusive canopy density classes: (1)  Very dense forest (with crown density) 0.7 to 1. (2) Moderate dense forest (with crown density) 0.4 to 0.7, (3) Open forest (with crown density) 0.1 to 0.4 .Therefore, the argument of the Applicants that for the purpose of implementation of the Forest (Conservation) Act, all the Authorities including the Supreme Court of India, have clearly accepted that the areas of natural vegetation, having tree canopy density varying anywhere between 0.1 to 0.4, are to be considered as forest for the purpose of applicability of the Forest (Conservation) Act, 1980 and thereafter determination of NPV and CA. The Applicants further submit that the report of the Forest Survey of India, 2009, shows that the category of open forest (crown density of 0.1 to 0.4) is almost the same in extent, as both the categories of very dense forest and moderate dense forests are put together. The Applicants further submitted that criteria of minimum 5 Ha, area, is also defeating the purpose and the mandate of the Forest (Conservation) Act, 1980 and also, the order of the Supreme Court in Godavarman’s case.
 
The applicants sought the following relief in Application No.14 (THC)/2013: (a) For an order quashing the criteria Nos.2 and 3 of the Forest guidelines/criteria and the order of the Respondent No.1, if any, approving the same.
 
The Applicant prayed for following prayers in the Application No.16 (THC)/2013:
(a) For an order directing the Govt. of Goa to complete the process of identification of private forest in the State, within a time bound period in terms of Apex Court’s order dated 12.12.1996 and report compliance;
(b) For an order directing the Govt. of Goa to complete the process of notifying degraded forest within the State i.e. the areas which were earlier forest but stand degraded, denuded or cleared, in terms of Apex Court’s order dated 12.12.1996 and report compliance.
 
The Forest Department, Govt. of Goa, has filed the affidavits from time to time and has opposed both the Applications. The forest department submitted that pursuant to the orders of the Supreme Court, dated 12.12.1996, the State Govt. had appointed Sawant Committee for the purpose of identification of forest lands in the State of Goa, which submitted its report and identified that total 13.0798 Ha of forest land has been diverted for various purposes. Respondents claimed that the expert committees have already considered all aspects of Apex Tribunal direction dated 12.12.96. The forest department further stated that the State Govt. has specifically constituted two (2) Committees; one for North Goa and another for South Goa, for the purpose of identification of balance areas of private forests in the State, which were not covered by Sawant Committee and Karapurkar Committee.
 
The Respondents are categorizing the assets of forest cover in three (3) classes as under: (1) Very dense forest (with crown density) 0.7 to 1. (2) Moderate dense forest (with crown density) 0.4 to 0.7, (3) Open forest (with crown density) 0.1 to 0.4 The Respondents submitted the process of demarcating in the private forest on the site, as identified by Sawant and Karapurkar Committees. In this process, identification team would first visually assess fulfillment of the criteria in a prospective land, then confirm extent of forest expanse through the land surveyed, then verify the fulfillment of other criteria and then conclude its identification, i.e. whether it is a private forest or not? It is submission of the Respondents that the reports of the Forest Survey of India (FSI), indicate in general the vegetation spread/area, category wise, over a State and it can no way be construed as identification criteria for forest lands. The criteria adopted by FSI have not been approved either by the State or the Central Govt. and findings of the reports by FSI are used for suitable guidance in planning afforestation activities.
 
The following issues arose for adjudication of the Applications:
 
1. Whether the Tribunal has jurisdiction to consider and alter or newly fix the forest identification criteria?
2. Whether the forest identification criteria set out by the Govt. of Goa, needs modification, as prayed in the Applications?
3. Whether the Tribunal can issue directions for expediting forest    identification and demarcation process, as prayed in the Applications?
4. Whether the Applications are by barred limitation?
 
The applicant relied upon the order of Supreme Court dated where in the Judgment relied upon and accepted recommendations of Kanchan Chopra Committee, which has considered 10% canopy density for diverting forest. It was also highlighted that the international organizations like the Food and Agricultural Organization (FAO), adopts the criteria of 0.5 Ha for identification of forest, whereas FSI adopts 1 Ha. She further submits that State of Goa has finalized the criteria of 5 Ha and 10% canopy density based on certain evaluation criteria, like not worthy, not meaningful, not viable etc. as reflected in the communication sent by State government to MoEF in 1991, which scientifically and rationally cannot be accepted. She further submits that the present criteria are finalized in 1991 by the Goa State, however, the order of the Supreme Court dated 12.12.1996, identifying forest and also identifying the areas, which were earlier forest but stand degraded, denuded or cleared. The applicants claim that the State of Goa should have formulated revised criteria for identification of forest based on specific directions of the Supreme Court in 1996. Moreover, the directions of 2008, are also very clear, regarding applicability of NPV for forest, having more than 0.1 canopy density and therefore, present criteria is not in compliance with the directions of the Supreme Court and there is need that this Tribunal shall direct the State Government to adopt criteria for forest identification of more than 0.1 canopy density and minimum area of 1Ha.
 
The respondents submitted that the State Government had formed two Expert Committees, namely Sawant and karapurkar committee’s, to identify private forest areas in compliance of the orders of the Apex Tribunal in case of TN Godavarman vs. Union of India. These Committees adopted and relied upon the state specific criteria for identification of forest that was evolved, in 1991, based on scientific inputs and socio-economic and topographical considerations that are unique to the State of Goa. The Apex Tribunal examined both the Savant and Karapurkar Committee reports. It was contended that deciding the forest identification criteria is a policy decision within the domain of the State Government and the State Government has rightly finalized the criteria in May 1991, considering various aspects and there is no need to revisit this criteria.
 
The Tribunal held that subsequent to the orders of Supreme Court dated 12.12.1996, each State Govt. was mandated to form an Expert Committee for identification of forest areas. Perusal of orders of the Supreme Court shows that identification criteria, though specifically not enumerated, the Supreme Court enlisted the task assigned to such Expert Committees. To illustratively apply this methodology to obtain actual numerical values for different forest types for each bio-geographical zone of the country.
To determine on the basis of established principles of public finance who should pay the costs of restoration and/or compensation with respect to each category of values of forest. Which projects deserve to be exempted from payment of NPV, the judges have gone through the report of CEC in IA No.826 and IA No.566, regarding calculation of NPV, which has been relied up on by the Applicant for justifying its prayers. The report mentions that the Forest Survey of India while undertaking forest cover mapping depicts three (3) canopy density classes viz very dense, (greater than 70% crown density), moderately dense (40-70% crown density) and open (10-40% crown density). The report further mentions “Champion and Seth” have classified the Forest of India in 16 major groups. The CEC further grouped 16 major forest types in this ecological class depending upon their ecological functions, based on experience and the judgment of experts, mentioning that it is not very rigid. Though it can be gathered that CEC went in to the details of calculation of NPV payable on use of forest land, of various types for non-forest purposes and has also gone into details of calculation of NPV of different eco value/canopy density classes, the conclusive findings/ recommendations on identification criteria could not be produced before the Tribunal. The Supreme Court had noted in NPV judgment of 2008 that the expert committee report contains detailed study of the relevant factors. It was found that the forest cover maps depict mainly three (3) tree canopy density classes viz; very dense, moderately dense and open.
 
The Tribunal held that after examining the orders of the Supreme Court dated 12.12.1996, all the States have formed Expert Committees for identification of forest and have also submitted progress reports before the Apex Court. As mentioned earlier, State of Rajasthan, has approached the Supreme Court with separate identification criteria. The State of Madhya Pradesh and also State of Medhalaya, have also their separate forestidentification criteria, which reports have already been submitted before the Apex Court. The state’s have evolved their own forest identification criteria and have already started the work in 1996-97 itself towards compliance of directions of Supreme Court. All these facts are part of proceeding in T.N. Godavaraman case, which is still under consideration of the Apex court. The Tribunal held that the change in the criteria is not within our domain since the Apex Tribunal is seized of the matter in which same issue is under consideration. And, therefore, this Tribunal is not inclined to give its opinion or finding regarding modification or otherwise identification criteria for private forest to be adopted by Goa State. And therefore the Issue mentioned at 1 is answered in “Negative”.
 
The second prayer of the Applicants is related to early completion of forest identification process. It has been brought on record that out of 256 Sq. Km. potential forest areas, work related to only 67 Sq Km has been completed by two Committees. Secondly, it is claimed that two new Committees are also trying to expedite the work. The Tribunal agreed with the contention of the Applicants that delay in identification and demarcation of forest, may be resulting into illegal cutting of the trees and also, diversion of land-use in some cases, though the State Government has put embargo on issuance of ‘Sanad’ in some cases, where the plots are not identified till this date. It may be possible that such delay in identification and demarcation may result into tree cutting and damage to the forest. The Supreme Court in “Indian Council for Environment Legal Action”, 1996 (5) SCC 281, has emphasized implementation of laws. When law is to be implemented, it is utmost necessary that the provisions are effectively enforced in time bound manner. And therefore, the Issue No. 3 is answered in “Affirmative”. The Tribunal directed the Chief Secretary of Goa, to call a meeting of all the concerned and work out time bound action plan for early completion of forest identification and demarcation in the State of Goa, within next six weeks and submit a time bound program to this Tribunal within eight (8) weeks from today. The Applications are accordingly disposed of, without costs, with liberty to Applicants to approach Supreme Court regarding the forest identification criteria, if so advised.