Chandra Prakash Budakoti vs Union Of India

Chandra Prakash Budakoti .... Appellant(s) Versus

Union of India & Ors. …. Respondent (s)

JUDGMENT

L. NAGESWARA RAO, J.

1. This appeal is directed against the judgment dated

05.04.2019 passed by the National Green Tribunal, Principal

Bench, New Delhi (hereinafter, ‘the Tribunal’) in Original

Application No.626 of 2016.

2. The Appellant who is a Journalist and Editor of Jan Lok

Kesari which is a Hindi Newspaper having circulation in

Uttarakhand, filed the application in public interest as he

was concerned about the environmental damage caused by

Respondent No.4 to 8. He alleged in the O.A. before the

Tribunal that there was a large-scale felling of trees in

private forests located at Patti Dhamnsu, Narendranagar,

1 District Tehri Garhwal in Khasra No.512 and 514. The

Appellant also complained of blasting activities being

resorted to by Respondent No.4 to 8 in the fragile Himalayan

region. The Appellant averred in the O.A. that no action

was taken by the District authorities to whom he complained

about the violation of the Forest (Conservation) Act, 1980

(hereinafter, ‘the Act’). He also referred to Khasra No.605 in

which there were fully grown trees which were being felled.

On the basis of the above allegations, the Appellant sought

a direction to the State of Uttarakhand and the Principal

Chief Conservator of Forests, Uttarakhand to stop the tree

felling and usage of forest land for non-forest purposes in

Khasra No.512, 514 and 605 in Narendranagar District, Tehri

Garwal. He further sought a direction to Respondent No.4

to 8 therein to stop construction. Later, the Appellant

impleaded Respondents 7 to 9 in the O.A. The Tribunal on

an application dated 11.04.2017 directed an inspection to

be done by the Forest Survey of India. The said inspection

was done on 01.05.2017 and a report was filed in the

Tribunal which showed progressive degradation of forest

cover in Khasra No.605.

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3. The State of Uttarakhand filed a counter affidavit

before the Tribunal in which it was stated that a Hotel/Villa is

being constructed by the Mahananda Spa and Resorts

Private Limited, since 2010-2011 in Khasra No.512, 513 and

605. According to the State Government, the land falling in

Khasra No.512, 513 and 605 is neither a reserved forest nor

a forest in the record of the Forest Department. It was

further stated in the said counter affidavit that Khasra

No.512 and 513 were recorded as private forests in the

revenue record and Khasra No.605 as barren (banjar) land.

The State Government further submitted that the project

proponent was directed to stop construction in view of the

complaints made by the residents of Kumar Khera and Daur

to Sub-District Collector, Narendranagar. As certain trees

were found to be damaged during the construction, a fine

was imposed under Section 4/10 of the U.P. Protection of

Trees in Rural and Hills Areas Act, 1976.

4. By an order dated 19.12.2018, the Tribunal directed

the Regional office of the Ministry of Environment & Forest

at Dehradun to visit the site and submit a status report. A

Committee comprising Ms. Komal Preet, Conservator of

Forest and Dr. S.C. Katiyar, Scientist E inspected the site on

3 05.01.2019. During the inspection, the Range Officer

Narendranagar forest division and Kanungo from the office

of Sub Divisional Magistrate, Narendranagar were also

present. The said inspection report dated 17.01.2019 filed

before the Tribunal in which the following observations were

made:

Observation during site visit:

1. Status of Khasra No.512, 513 and 605 in revenue

records and as per site inspection:

Sl. Khasr Ownership as Status of Vegetatio No. a No. per revenue construction n cover records 01 512 Private land Villas constructed Sparse 02 513 Private land Villas constructed Sparse 03 605 Private and Partly under villas Sparse already constructed and partly under Westin Resort under construction

2. As per the revenue records, the ownership of Khasra

No.512, 513 and 605 are ‘nap’ or private land.

3. The revenue records have not been updated since

1938 and the status of land for khasra no.512 and 513 is

‘niji van’ or private forest while for khasra no.605 is ‘banjar’

or barren.

4. The land was not considered as deemed forest by the

forest department in report filed in the Godavarman case.

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5. At present, khasra no.512 and 513 and part of 605

are having independent villas which are devoid of any

natural vegetation.

6. Owner of the project denied having any rights in

khasra No.514.

7. On a portion of khasra no.605, resort in the name of

Westin Resort is being constructed. During the site visit the

construction was seen going on at the resort.

8. There is no evidence of blasting and representatives

of both the revenue and forest department denied the same.

It was also informed that the land is devoid of hard rocks

and hence blasting is not required for any construction

activity.

9. The construction site adjoins civil land at its back

side which was seen having natural vegetation akin to

miscellaneous degraded forest having mostly shrubs and

few trees.

10. There was no sign of any fresh tree felling at the site.

As per the forest department, illegal felling was reported

and booked under U.P. Tree Protection in Rural and Hilly

Areas Act, 1976 of the state during the year 2011-12 for 34

no. of trees and year 2015-16 for 16 no. of trees (annexure

II).

11. The land is already broken and construction going-on

over major part of the khasra 605 and adjoining land also

5 bears only degraded forest land with miscellaneous species,

and has also not been marked as deemed forest by the

forest department, hence in its present state it does not

qualify as deemed forest on the basis of the vegetation on

khasra no.605.

12. Since khasra no.605 was recorded as ‘banjar’ or

barren in the year 1938 in revenue records, which have not

been updated, hence continue to be reflected as banjar. As

per the directions of the Hon’ble Supreme Court in the

matter of T.N. Godavarman, Forest Conservation Act, 1980

would be applicable to all such lands recorded as forest in

revenue records irrespective of the ownership, hence land

under khasra no.605 would not attract Forest (Conservation)

Act, 1980. (Annexure II)

13. Khasra no.512 and 513 have been recorded as

private forest in the revenue records, hence would attract

the provisions of Forest (Conservation) Act, 1980 over which

construction has already been completed in the form of

villas. (Annexure II).

5. After a careful consideration of the report, the Tribunal

passed the following order: -

(i) We hold that Khasra No. 512 and 514 are ‘Private forest’

land, as recorded in the revenue records and Provisions of

6 Forest (Conservation) Act, 1980 are applicable. We,

therefore, direct the Forest Department and MoEF to

initiate proceedings for violation of Forest (Conservation)

Act, 1980 in Khasra No. 512 & 513 for non-forestry

activities by way of raising constructions, if such

constructions had been undertaken without obtaining

prior approval of MoEF. It has been stated that there are

independent villas in Khasra No. 512 & 513. We also direct

the Forest Department to conduct enquiry to find out the

persons/officials responsible for the violation, if any and to

proceed against them in accordance with law. (ii)The

observations of FSI with regard to Khasra No. 605 are not

conclusive and cannot be relied upon. The area of Khasra

No. 605 in the report submitted by FSI is given as 11

18.02 ha whereas as per Revenue record it is 10.394 ha.

We cannot arrive at any conclusion as to which part of the

Khasra No. 605 had been degraded as the area of Khasra

No. as given in FSI report is significantly more than the

area recorded in the revenue records. In the absence of

any report on deemed forest filed by the Forest

Department, we would go by the site inspection report of

the Regional office which is based on the revenue records

and the existing character of the land. We, therefore,

accept the observations given in the site inspection report

of the Regional Office of the MoEF wherein it has been

7 stated that Khasra No. 605 is non-forest land and

Provisions of Forest (Conservation) Act, 1980 will not be

applicable.

6. Aggrieved by the judgment of the Tribunal, the

Appellant has approached this Court by filing the above

appeal.

7. Before we proceed further it is relevant to mention that

the direction issued by the Tribunal in respect of Khasra

No.512 and 514 has not been challenged by the

Respondents. The grievance of the Appellant in respect of

Khasra No.512 and 514 is that the authorities have not

implemented the directions.

8. The main controversy in the above appeal pertains to

Khasra No.605. Mr. P.S. Patwalia learned Senior Counsel

appearing for the Appellant submitted that Khasra No.605 is

a deemed forest and would fall within the expression of

forest, attracting the provisions of the Forest (Conservation)

Act. He relied upon a judgment in T.N. Godavarman

Thirumulpad v. Union of India1 to submit that the words

‘forest’ should be understood according to its dictionary

meaning. He relied upon Google images from 2007 to 2014

1 (1997) 2 SCC 267

8 which would show that the area which was densely

populated with trees has gradually undergone a change.

9. He submitted that Oak and Kukat trees were cut and

construction was commenced by Respondent No.9 i.e.

Mahananda Spa and Resorts Pvt. Ltd. without obtaining

clearance under the Forest (Conservation) Act. He referred

to the reports submitted by the Forest Survey of India and

the joint inspection report of the forest authorities in support

of his submission that there has been a progressive

reduction in the forest area in Khasra No.605. He also

placed reliance on the judgements of this Court in M.C.

Mehta (Kant Enclave matters) v. Union of India2 and

Kerala State Coastal Zone Management Authority v.

State of Kerala3 to argue that any construction carried out

without requisite permissions is liable to be demolished.

10. Mr. C. A. Sundaram, learned Senior Counsel appearing

for Respondent No.9 submitted that the land of Respondent

No.9 in Khasra No.605/1 is recorded as barren (banjar) land

in the revenue records. He referred to the revenue records

to contend that the land in Khasra No.605 is neither a forest

land nor in the nature of a forest. Initially, according to him,

2 (2018) 18 SCC 397 3 (2019) 7 SCC 248

9 Mahananda Spa and Resorts Limited was to be constructed

in 5702.20 sq. meters for which a sanctioned building plan

was granted. According to the notification dated

14.09.2006, environment clearance is required only if the

built-up area of a project is more than 20,000 sq. meters.

As it was decided to increase the built-up area from

13983.67 sq. meters to 32,791 sq. meter, a fresh building

plan was submitted for approval. Mr. Sundaram contended

that the entire shareholding of the erstwhile promoters of

the Respondent No.9 was sold to Mankind Pharmaceuticals

Limited company. Thereafter, Respondent No.9 applied for

grant of environment clearance on 01.02.2016 and Consent

to Establish from the Uttarakhand Environment Protection

and Pollution Control Board.

11. Mr. Sundaram stated that the State Level

Environment Impact Assessment Authority conducted a

site inspection on 21.02.2016 pursuant to which the

environment clearance was granted on 03.03.2016

permitting construction of the total built-up area of 32,686

sq. meters. He contended that there was no felling of any

trees, as alleged by the Appellant. The submission of Mr.

Sundaram that the construction taken up by Respondent

10 No.9 was after obtaining all the necessary sanctions and

approvals which were not subject matter of challenge in

any forum.

12. The Appellant placed heavy reliance on the report of

the Forest Survey of India which conducted an inspection

on 01.05.2017. It is no doubt true that it was mentioned

in the report that there is a gradual degradation of forest

in Khasra No.605. The Committee proceeded with the

inspection on the basis that Khasra No.605 is a forest on

the ground that all lands with the tree canopy density

between 10 % to 40 % shall be treated as open forest.

The Committee made no reference to the revenue

records. The Committee further proceeded on the ground

that the total area of Khasra No.605 is 18.02 hectares to

conclude that there is a progressive degradation due to

construction of golf courts and other buildings in the area.

The Tribunal rightly refused to accept the report of the

Forest Survey of India as according to the revenue

records, the land in Khasra No.605 is only 10.39 hectares.

The Tribunal observed that it is difficult to arrive at a

conclusion as to which part of Khasra No.605 has been

11 degraded as the report of FSI refers to Khasra No.605 to

be more than the area recorded in the revenue records.

13. The Appellant filed M.A. No.1672 of 2018 in O.A. 626

of 2016 seeking a direction for a site inspection in view of

fact that Respondent No.9 is continuing with the

construction in the forest area. By an order dated

19.12.2018, the Tribunal directed the Regional office of

Ministry of Environment and Forest, Climate Change,

Dehradun to conduct an inspection. After conducting an

inspection, a report was submitted on 07.01.2019. The

clear findings recorded in the report are that the revenue

records show that Khasra No.605 is banjar or barren land.

In NOIDA Memorial Complex Near Okhla Bird

Sanctuary, In Re v. 4, this Court held that due weight has

to be given to revenue records, especially those

pertaining to a period when the dispute regarding the land

being a forest land did not exist. In the instant case, the

revenue records relied upon by the Respondent No.9 are

very old when nobody could have imagined about the

project.

4 (2011) 1 SCC 744

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14. The observation in the report dated 07.01.2019 is to

the effect that the land in Khasra No.605 was not

considered as a deemed forest by the Forest Department

in the report filed in Godavarman’s case. There is no

evidence of blasting operations. There is also no sign of

any fresh felling of trees and finally it was concluded that

the land in Khasra No.605 cannot qualify as deemed

forest. There is a reference in the report to the judgment

of this Court in Godavarman’s case wherein it was held

that the Forest Conservation Act would be applicable to all

lands recorded as forest in the revenue records. The

provisions of the Forest Conservation Act are not

applicable to Khasra No.605. We are in agreement with

the findings recorded by the Tribunal that the land falling

in Khasra No.605 is banjar or barren land and the

provisions of the Forest Conservation Act is not applicable.

15. In so far as Khasra No.512 and 514 are concerned,

the Forest Department, State of Uttarakhand, Ministry of

Environment and Forest have been remiss in not initiating

the proceedings as directed by the Tribunal. The inquiry

as directed by the Tribunal shall be completed within a

13 period of three months from today and further action be

taken immediately thereafter.

16. For the aforementioned reasons, we uphold the

judgment of the Tribunal and dismiss the appeal.

..…................................J [L. NAGESWARA RAO]

..…................................J [HEMANT GUPTA]

New Delhi, October 24, 2019

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