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BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Application No.56 of 2012 (SZ)
In the matter of
M/s. Janajagrithi Samithi
Rep. by its Executive President
Nandikur Village, Udupi District .. Applicant
Vs.
1.Union of India
through its Secretary
Ministry of Environment and Forest
New Delhi
2. The Government of Karnataka
Through its Secretary
Ministry of Environment, Ecology
Ports and Water Transports, Bangalore
3. The Karnataka Industrial Area Development Board
Through its Chairman, Bangalore
4. The Principal Chief Conservator of Forests
Bangalore
5. M/s. Synefra Engineering & Construction Ltd.,
through its Managing Director, Pune .. Respondents
Counsel appearing for the applicant
M/s. Cliton D’Rozario
Counsel appearing for the respondents
For respondent No.1 .. Smt. M. Sumathi
For respondent Nos.2 & 4 .. Mr. Devaraj Ashok, Govt. Pleader
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For respondent No.3 .. Mr. Basavaraj V. Sabarad
For respondent No.5 .. M/s. Sanjay Upadhyay & K. Harish
O R D E R
Quoram: Hon’ble Shri Justice Dr. P.Jyothimani, Judicial Member
Hon’ble Shri P.S. Rao, Expert Member
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Delivered by Hon’ble Shri P.S. Rao Expert Member 28th October, 2016
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Whether judgment is allowed to be published on the Internet .. Yes/No
Whether judgment is to be published in the All India NGT Reporter .. Yes/No
The applicant – Society, registered under the Societies Registration Act, 1860 is consisting of the residents of Nandikur, Yellur, Santhur, Thenka, Padebettu, Palimar,
Nadsal and other neighbouring Villages of Udupi District of Karnataka. The applicant
Society is stated to have sponsored and organised Kodachadri Ecologically Sensitive
Area to make an ecological study in the Western Ghats and submitted certain proposal to the Ministry of Environment and Forests in the year 2006. The Society is also stated to have made certain study on the coastal strip of Karnataka, consisting of Dakshina
Kannada and Udupi Districts. The Government of Karnataka is stated to have granted permission to M/s. Synefra Engineering & Construction Ltd., viz., the fifth respondent herein ( formerly known as Suzlon Infrastructure Ltd) for the use of forest lands to an extent of about 115 acres in Survey Nos.155 (51.23 acres) and 169 (63.55 acre) of
Nandikur Village, Udupi District for industrial purposes.
2. According to the applicant Society, the said area comprising of 115 acres in
Survey Nos.155 and 169 of Nandikur Village is called ‘’Devara Kadu’’ which means
‘’God Forest’’ or ‘’Sacred Grove’’. According to the applicant, the entire area, including the trees, is unique in nature and Devara Kadu is dedicated to Goddess Mahishasura
Mardhini Sri Durga Parameshwari wherein offering of some poojas have been conducted for more than 400 years. The applicant also states that the forest area is the habitat of various species of fauna like peacocks, wild boars and reptiles apart from species of migratory birds and the Mulki River Estuary is located nearby. The tradition
3 mandates maintenance of Devara Kadu along with nearby waterbody so that the forest would support the water tank in its catchment by percolating rain water into these tanks.
3. It is stated that the second respondent – Government of Karnataka has handed over possession of Devara Kadu of Nandikur Village to the third respondent –
Karnataka Industrial Area Development Board (KIADB) on 15.3.2007. The applicant, thereafter made a representation on 9.1.2008 before the KIADB and in the communication dated 30.1.2008, the third respondent disclosed that on receipt of
Rs.8,52,66,441/- from the fifth respondent, possession of the said Devara Kadu has been transferred by the third respondent to the fifth respondent. It is also stated that from the website of the Ministry of Commerce, Government of India, it is learnt that the
Government had notified 259.32622 Hectares of the area in the said place as Special
Economic Zone (SEZ) in favour of the fifth respondent on 11.9.2007 under Special
Economic Zones Act, 2005 for the purpose of manufacturing Hi-tech Engineering
Products and related services and the Devara Kadu is stated to be falling within the notified area for which the fifth respondent was appointed as a developer for SEZ. The fifth respondent, which undertakes to manufacture wind mill components for renewable energy production, is attempting to use the Devara Kadu for non-forest activity by establishing the polluting industrial activities without obtaining permission under the
Forest (Conservation) Act, 1980. It is stated that the fifth respondent has already set up a manufacturing unit and developed plots in the SEZ area. However, according to the applicant, no activity in Devara Kadu area has been attempted till recently. The applicant is stated to have made many representations to cancel transfer of Devara
Kadu to the fifth respondent. However, there has been no response.
4. It is stated that on 31.10.2009 the Karnataka State Environment Impact
Assessment Authority (SEIAA) has considered the proposal of the fifth respondent to modernise and expand its project by constructing a manufacturing unit of windmill components, setting up an assembly unit of windmill being used in the production of renewable energy and setting up of a unit providing hi-tech engineering products and related services. The State Level Expert Appraisal Committee (SEAC) in the proceeding dated 31.10.2009 is stated to have given opinion that public hearing for the said project is exempted under the EIA Notification, 2006. However, the applicant has
4 stated that the project of the fifth respondent does not fall under ‘’B2’’ category and therefore the ‘’public hearing’’ is mandatory. According to the applicant, the SEIAA of
Karnataka was aware of the Terms of Reference (ToR) which stipulates study on loss of habitat of fauna, including endangered species having an impact on ecology. The applicant is stated to have made another representation on 7.3.2010 to the Hon’ble
Minister for Environment, Government of Karnataka to withdraw the acquisition of
Devara Kadu. There was no response. However, the applicant was informed on
17.3.2010 that the Deputy Conservator of Forests has given permission to the fifth respondent to fell trees in Devara Kadu. The applicant also states that he was informed on 20.4.2010 by the Deputy Conservator of Forests, Kundapura Division that the land claimed as Devara Kadu is neither ‘’notified forest’’ nor ‘’deemed forest’’ and hence it is outside the purview of the Forest (Conservation) Act, 1980 and permission to fell 90 trees was already given to the fifth respondent which has already felled 30 trees and transported the same to the government warehouse and the remaining trees are to be cut which was unable to be proceeded with because of the order of the Range Forest
Officer, Udupi Division. It is stated that the fifth respondent has also identified another
431 trees in the same survey numbers required to be felled for expansion. The applicant apprehends that the fifth respondent is likely to grant permission to cut the remaining trees and in as much as it was the opinion of the SEAC that the ’’public hearing’’ is not required, the SEIAA of Karnataka is likely to issue Environmental
Clearance (EC) to the fifth respondent for construction, modernisation and expansion of its manufacturing units. The applicant challenges the conduct of the second respondent
– State Government in handing over Devara Kadu to the third respondent which is against the order of the Hon’ble Supreme Court, since non-forest activity is sought to be taken up in forest land.
5. It is also stated that one, Mr. N. Madhavaraya Bhat, the Managing Trustee of
Sri Durga Parameshwari Temple, Nandikur has sworn an affidavit stating about the existence of the temple and the rituals, customs, traditions and sacredness of Devara
Kadu, a copy of which has been filed by the applicant. Raising various legal grounds, relying upon Section 2 of the Forest (Conservation) Act, 1980, the decision of the
Hon’ble Apex Court in T.N. GODAVARMAN VS. UNION OF INDIA (W.P.No.202 of
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1995 dated 12.12.1996) and emphasising the duty of the Government to preserve
Devara Kadu, apart from many other grounds, the applicant has moved the said application for a direction against the respondents to stop the illegal felling of trees and use of forest land for non-forest activity in violation of the Forest (Conservation) Act,
1980; to direct the respondents to restore the pristine environment of the area to its natural state and to direct the first respondent to take stringent action against the fifth respondent for carrying out non-forest activity in forest land in violation of the Forest
(Conservation) Act, 1980.
6. The first respondent MoEF & CC in the reply dated 8.8.2013, while reiterating the direction of the Hon’ble Supreme Court in T.N. GODAVARMAN VS. UNION OF
INDIA (W.P.No.202 of 1995 dated 12.12.1996) by explaining the meaning of ‘’forest’’, has stated that the averments in the application are pertaining to the State Government.
It is also stated that in case the land in question is recorded as ‘’Devara Kadu’’ in the revenue records, as alleged by the applicant, it will attract the provisions of Forest
(Conservation) Act, 1980 which prohibits non-forest activity in forest land. It is also stated that MoEF & CC has not given any permission under the Forest (Conservation)
Act, 1980 for carrying out any non-forest activity in the said area.
7. The third respondent – Karnataka Industrial Areas Development Board (KIADB) which is a State Government Undertaking, incorporated and established under the provisions of the Karnataka Industrial Areas Development Act, 1966 for establishing industrial areas in the State of Karnataka, in the reply dated 7.2.2013 has stated that the filing of the application is an abuse of process of law, as it has been held in several litigations filed by the applicant on the same ground that the location in which a thermal power project was sought to be established earlier by NTPC, was found to be not a forest area and the litigations were dismissed. It is stated that the applicant itself has filed W.P.No.1112 of 1991, W.P.No.2456 of 1990, W.P.No.6262 of 1991 and
W.P.No.24197 of 1990 as Public Interest Litigations in the High Court of Karnataka, questioning the location of Mangalore Super Thermal Power Station as well as Ash
Pond at Nandikur Village in Survey Nos.155 and 169 proposed to be established with the aid of erstwhile USSR on the basis that there was no clearance from the State
Pollution Board and there is no Environmental Clearance (EC) from the MoEF & CC. In
6 the said writ petitions it was specifically raised by the applicant that the area is a forest land in which establishment of thermal power station or ash disposal cannot be permitted. The applicant has also raised an issue that out of 3,139.41 acres of land required for the project, 739.67 acres of land is yielding three crops, 95.73 acres of land is yielding coconut and arecanut crop and having dwelling houses, 1,613.37 acres of land is with coconut, arecanut and cashewnut crops together with forest land with dwelling houses and only 637.75 acres of land was government land. The Division
Bench of the Hon’ble High Court of Karnataka on 6.8.1991 dismissed the writ petitions after elaborately considering all the issues. The said judgment of the Division Bench was also confirmed by the Hon’ble Supreme Court by rejecting the S.L.P filed by the applicant on 18.12.1991. However, it is stated that the NTPC was unable to proceed with the project owing to disintegration of the USSR. Therefore, it was decided to allow
M/s. Cogentrix Energy Inc. to explore the possibility of setting up of its thermal power plant at Nandikur Village, Mangalore and after discussion with the Government, a MoU was signed on 30.7.1992 to that effect. The approval of Cabinet Committee on Foreign
Investment was obtained, apart from the fact that power purchase agreements were signed on 18.1.1996.
8. At the time when the Environment Impact Assessment (EIA) was to be done by the competent authority, the Indian Council for Enviro-Legal Action and the present applicant have filed W.P.No.790 of 1997 connected with W.P.No.28651 of 1996 for quashing the two communications dated 11.6.1996 and 5.7.1996 and not to grant clearance for any large scale industry in Dakshina Kannada District without making a study by an independent team of Experts, apart from many other reliefs. The third respondent states that the said writ petitions were disposed of by the Division Bench of the Karnataka High Court on 29.8.1997 holding that none of the objections raised by the petitioners therein were sustainable to quash the clearance granted by the Karnataka
State Pollution Control Board or MoEF & CC. However, the Bench directed the MoEF
& CC to consider the report of DANIDA and NEERI and to take action. It is the case of the third respondent that earlier the land bearing Survey No.155 to an extent of 51.23 acres and Survey No.169 to an extent of 63.55 acres in Nandikur Village alleged to be
Devara Kadu, were among the government lands identified for Mangalore Super
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Thermal Power Station (MSTPP) and there has been some transfer of land by the government for the said project However, the project did not take off and therefore the lands were forfeited to the government. The Government of Karnataka issued a
Notification under the Karnataka Industrial Areas Development Act, 1966 declaring an extent of 2,477.64 acres as industrial area on 5.4.1995. An area of 196.06½ acres of land at Nandikur Village comprised in Survey Nos.155 and 169 (51.23 acres and 63.55 acres respectively) and other survey numbers were included in the notification. There has been further notification issued for acquiring adjacent land and ultimately final notification has been issued by declaring the entire lands as industrial area. Even though the projects were unable to be carried on, the Government of Karnataka transferred the land to KIADB viz., the third respondent and in addition, the other lands acquired by the Board were also available since compensation to the land owners has been paid.
9. The third respondent specifically denies the authenticity of the affidavit filed by N.
Madhavaraya Bhat, stated to be the Managing Trustee of Sri Durga Parameshwari
Temple, Nandikur due to the reason that he was holding the post as Managing Trustee only for ten years and even according to him the temple is in existence for the last ten years only and the reference made in the said letter is relating to Survey Nos.159 and
165 which are not the subject matter of dispute in this case and therefore the affidavit is totally tutored. It is also stated that Survey Nos 159 and 165 have never been allotted to the fifth respondent and the allotment was only in respect of Survey Nos.155 and 169 which are government lands, situated far away from Sri Durga Parameshwari Temple viz., 5 to 6 Kms from the SEZ area. Further, the said Madhavaraya Bhat has not taken any steps for declaring that it is Devara Kadu of the temple. On the other hand, he has received a compensation of Rs.11,06,653/- on acquisition of Survey No.153/9 which is situated near Survey No.155. He had also family property in Survey No.152/1 and
152/3 Nandikur Village, adjacent to Survey No.155. For the acquisition of lands in the above said Survey Numbers he has received a compensation of Rs.10,48,999/- on
28.4.2007.
10. It is the further case of the third respondent that thereafter the fifth respondent which was earlier known as M/s. Suzlon Infrastructure Ltd., approached the State
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Government with a proposal of setting up of Special Economic Zone (SEZ) for the manufacture of hi-tech engineering products in various survey numbers of Nadasalu,
Nandikur, Hezmadi and Palimaru Villages of Udupi District. The High Level Clearance
Committee granted an ‘’in principle’’ approval on 24.3.2006. Based on the ‘’in principle’’ approval granted by the Government of India on 27.6.2006 to the fifth respondent for establishing SEZ, the third respondent Board allotted additional land to the extent of
208.47 acres at Nadasalu, Palimaru and Nandikur Villages on 23.3.2007, subject to the payment of Rs.8,52,66.441/-. The possession was accordingly handed over on
24.3.2007. The lands in Survey No.155 to an extent of 51.23 acres and Survey No.169 to an extent of 63.55 acres of Nandikur Village were part of the said allotment. The fifth respondent has also been issued with possession letter on 24.3.2007. On fulfilment of the terms of allotment and on payment of Rs.39,03,80,625, the third respondent executed a sale deed in favour of the fifth respondent on 15.2.2012 and therefore lands in Survey No.155 measuring 51.23 acres and Survey No.169 measuring 63.55 acres of
Nandikur Village were already conveyed to the fifth respondent under a registered sale deed and mutation of records have also taken place. The third respondent specifically denies the allegation of the applicant that an extent of 115 acres of land in Survey
No.155 and 169 at Nandikur is designated as Devara Kadu. The further allegation that it is Anadheena Panchayatha Kadu is denied and Ex.A3 document produced by the applicant is not an authenticated document which is not only illegal but the source of the document is also not known. The third respondent has produced the proceedings of the
Deputy Commissioner, Udupi dated 12.3.2007 to show that various government lands, including the subject land to an extent of 508.69-1/2 acres was allotted to NTPC on
17.8.1992 and NTPC could not use the land and therefore it was resumed to the government.
11. Thereafter, the lands were granted in favour of the third respondent subject to the payment of 50% of the current market value, conversion fee etc., and also to allot the same in favour of a company indicated in the government order dated 19.9.2006.
Part of government land was granted in favour of Fire Station, Nagarjuna Thermal
Power Project and M/s. Suzlon Infrastructure Ltd., viz., the fifth respondent. As per the government order, the third respondent Board has allotted the land in favour of the fifth
9 respondent. While denying the allegation of the applicant that the land in Survey
Nos.155 and 169 harbours Devara Kadu, it is stated that the said vacant government lands are described as Punja. It is used for beneficial cultivation/enjoyment of adjacent ownership lands and at no point of time there was any thick tree growth existing on the lands, as stated by the applicant and therefore the land is neither notified forest area nor deemed forest. In these circumstances there was no need for submitting proposal under the Forest (Conservation) Act, 1980. As per the Pahanis maintained by the
Revenue Department, the lands are stated to be government lands and not forest lands and therefore they are revenue lands and there are no valuable trees on the land, as contended by the applicant. Since it is not a forest land, the judgment of the Hon’ble
Apex Court in T.N. Godavarman’s case has no application. It is also stated that in fact the allotment was made to the fifth respondent subject to fulfilment of various conditions which were complied with and the subject lands are far away from the Western
Ghats/Kodachadri Hills and the applicant is trying to confuse the entire issue.
12. The issue of impact on environment has already been examined by all the authorities, including the courts on previous occasion. There is no substantial question relating to environment that arises for consideration by this Tribunal, as the area has already been declared as an industrial area by the State of Karnataka as early as on
5.4.1995. However, the present application has been filed in the year 2012 which is clearly barred by limitation.
13. On behalf of the fourth respondent, the Deputy Conservator of Forests,
Kundapura Division, Kundapura, Udupi District has filed his reply dated 5.4.2013. It is stated that the applicant has formed an Anti Industrialisation Committee in the Udupi
District in order to prevent any large scale industry coming up in the region from the year 1990, even though the local villagers are in favour of industrialisation and development so as to create employment opportunity to the youth. According to the fourth respondent, the applicant has been misleading the public in this way and several cases have been filed in various courts and most of the cases were dismissed which includes judgment of the Division Bench of the Hon’ble High Court of Karnataka reported in 1991 (2) KAR. LJ 524 (DB) dated 6.8.1991 in a Public Interest Litigation filed by the applicant. The SEZ is a non-polluting area, maintaining greenery in the project
10 and the fifth respondent is not creating any environmental problem, as alleged by the applicant. It is also denied that the area comes under the Western Ghats. On the other hand, the location of SEZ is near the National Highway between Mangalore and Udupi.
The SEZ does not have any forest or ghat area and it is far away from the Western
Ghats and Kodachadri. Most of the private lands, government lands and major portion of the area consists of barren/waste land (Punja) and they are not agricultural lands and there are only Acacia plantations in the survey numbers which are the subject matter of this case and they are not local valuable trees. While reiterating the various averments made by the third respondent, the fourth respondent has stated that as per the revenue records, the subject land is specifically mentioned as government vacant land and there are no ancient groves existing on the land. It is also stated that Sri Durga
Parameshwari Temple is not adjacent to the boundary of SEZ and it is located 5 to 6
Km away. It is the case of the fourth respondent that as per the revenue records,
KIADB acquisition records or in the Forest Department records, it is nowhere mentioned anything about the existence of Devara Kadu in Nandikur Village of Udupi District and lands in Survey Nos.155 and 169 are not maintained by the temple. They are acquired by the government and declared as ‘’industrial area’’ in 1990.
14. Again reiterating the statement made by the third respondent regarding the allotment of land to the fifth respondent, it is stated that the fifth respondent, as a developer, has sub-let Plot Nos.3 and 7 to different unit holders for providing ample employment opportunity to the local youth and contributing major revenue to the nation by way exports. It is also stated that the applicant has never challenged the acquisition proceedings in respect of Survey Nos.155 and 169 of Nandikur Village by the third respondent Board. It is stated that on 27.12.2012 SEIAA has granted Environmental
Clearance (EC) to the projects viz., (1) M/s. Suzlon Infrastructure Lt., (2) Suzlon Wind
International Ltd and (3) M/s. SE Composites Ltd.
15. It is also stated that as per the Office Order dated 6.11.2007 the fifth respondent has been permitted to cut 431 trees in Survey No.155 measuring 51.23 acres and Survey No.169 measuring 63.55 acres of government land in Nandikur
Village on condition of depositing of Rs.5 lakhs in a Nationalised Bank for re-plantation.
The Forest Department has clearly mentioned that there are only Acacia trees planted
11 in Survey Nos.155 and 169 and they are used only for firewood. It is also stated that the fifth respondent has planted more than 2,000 trees inside SEZ and distributed about
500 saplings to the schools and to Self Help Group during Environment day and there is no illegal cutting of trees in Survey Nos.155 and 169.
16. While reiterating that an absolute sale deed has been executed in favour of the fifth respondent by the third respondent, it is stated that there is absolutely no link between Nandikur and Western Ghats and there is no connectivity. In 1997 itself there has been a detailed judgment delivered by the Hon’ble High Court of Karnataka in the
PIL filed by the applicant. The applicant has never questioned about the alleged tree cutting in the forest area and the applicant is not representing the villagers. The affidavit of Madhavaraya Bhat is also questioned by the fourth respondent. It is specifically stated that the land in Survey Nos.155 and 169 of Nandikur Village is not
Devara Kadu and there is no thick growth of trees or dense tree cover nor it is home for various species, including fruit bearing trees or medicinal plants. There are no reptiles or wild animals such as leopards, wild boars etc., and the area is not having any rich fauna, including peacocks, as alleged by the applicant. The said survey numbers are vacant government lands and are punja lands and at no point of time there was any thick tree growth in the said lands, as stated by the applicant. The attitude of the applicant in stating that Devara Kadu in Karnataka and comparing it with Sarbakadu or
Forest of Snakes in Kerala is totally untenable. The allotment was made by the fifth respondent to various units which were complying with all conditions, providing ample employment opportunity to the local youth and contributing for developing greenery under CSR activity. There are no substantial issues relating to environment involved in the application filed. The respondent has also questioned the cause of action stating that the cause of action has arisen as early as in the year 1995 and 2008 and the application has been filed in the year 2012 which is barred by limitation.
17. The fifth respondent in the reply dated 27.2.2013 has stated that the application is misconceived and it is barred by limitation under Section 14(3) of the National Green
Tribunal Act, 2010, since the application has not been filed within the time specifically mentioned in the said provision. Reiterating that the activity of the applicant has no support from the local villagers, it is stated by the fifth respondent that the applicant
12 indulges false and malicious propaganda inspite of the fact that the Division Bench of the Hon’ble High Court of Karnataka dismissed the Public Interest Litigation filed by the applicant as early as on 6.8.1991. It is also stated that the applicant has never questioned about the creation of SEZ which is a non-polluting area, maintaining greenery for the project and the SEZ does not fall within the Western Ghats. On the other hand, it is situated near the National Highway viz, NH 66 between Mangalore and
Udupi. It is also stated that the SEZ is not coming within the Reserve Forest. The lands allotted to the fifth respondent by the third respondent comprise both private lands and government lands with major portion of private lands and they are barren/waste lands and not under cultivation and only Acacia plants were planted in Survey Nos.155 and
169. Reiterating about the Karnataka Government’s proposal to have a Thermal Power
Plant which was subsequently given up, it is stated that ultimately the Government of
Karnataka has allotted 114.78 acres comprised in Survey Nos.155 and 169 to the fifth respondent and that was on l5.3.1992 which clearly mentioned the nature of land as government land.
18. The fifth respondent denies the contention raised by the applicant that the land in
Survey Nos.155 and 169 is a Devara Kadu or scared grove. On the other hand, as per the revenue records, the land is reflected as ‘’government land’’ and it was on that basis the Deputy Commissioner, Udupi on 12.3.2007 has allotted 208.470 acres of government land to the third respondent for the SEZ project of the fifth respondent, after collecting land compensation from the third respondent and that was deposited by the fifth respondent. In the said proceeding, Survey Nos.155 and 169 of Nandikur Village is clearly mentioned as ‘’government land’’. It is also stated that Sri Durga Parameshwari
Temple is situated 5 to 6 Kms away from SEZ and there is no thick tree growth or dense tree cover or existence of any wild animals like reptiles, leopards, wild boars, several species of birds particularly thousands of peacocks. It is false to state that the place is a hub of bio-diversity. The lands in Survey Nos.155 and 169 are described as
Punja lands and Forest (Conservation) Act, 1980 has no application and there is no violation of the said Act at all. Since it is not a forest area, the judgment of the Hon’ble
Apex Court in T.N. Godavarman’s case has no application in this case. There is absolutely no documentary evidence to show the existence of Devara Kadu in the area.
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It is further stated by the fifth respondent that SEZ is a non-polluting industry and they have complied with all the conditions stipulated while allotting the land. That apart, the fifth respondent has invested huge amount of money for the manufacture of components relating to wind energy generator which is a green energy source.
References made to Kudremukh National Park, Western Ghats, Kodachadri Hills are irrelevant in the context since they are far away from the SEZ area. Before the said land was allotted to the fifth respondent for setting up of SEZ project, a thorough study was made by the authorities, including the Environment Impact Assessment. The lands in Survey Nos.155 and 169 are not maintained by any temple and as stated earlier, they are government lands declared as industrial area as early as in the year 1990.
19. A Lease-cum-sale deed has been executed in respect of these lands by the third respondent in favour of the fifth respondent on 15.2.2012 and therefore the fifth respondent has become the absolute owner of 641.915 acres of land in Nadsal,
Palimar, Nandikur and Hejamadi of Udupi District which includes Survey Nos.155 and
169 of Nandikur Village, measuring 114.78 acres. On the basis of the sale deed, mutation entry has already been effected in the name of the fifth respondent. It is also stated that the fifth respondent is not proposing to have any polluting industry on the site. On the other hand, it deals with business of wind energy generators and the fifth respondent is not in the business of cutting and selling of trees or using wood from trees as any raw material in its manufacturing activities and there is no cause of action. The
Google Maps produced by the applicant are vague and dubious and cannot have evidentiary value. The applicant having not challenged the allotment of land in favour of the fifth respondent for SEZ has no right to raise dubious issues, especially when there is no substantial issue relating to environment.
20. It is also stated that SEIAA of Karnataka has given its clearance on 27.12.2012 in favour of the fifth respondent. The fifth respondent has obtained permission from the
Deputy Conservator of Forest, Kundapura Division for cutting of trees in Survey
Nos.155 and 169 on condition of depositing Rs.5 lakhs which has been complied with.
Further, even as per the applicant’s documents filed as annexure, the Deputy
Conservator of Forest, Kundapura Division has clearly mentioned the existence of
Acacia trees in Survey Nos.155 and 169 which are not valuable trees and are in the
14 nature of firewood. The fifth respondent has planted 2,000 saplings, inside SEZ and distributed 500 saplings to the school and SHG during Environment Day. The fifth respondent also vehemently denied the affidavit of N. Madhavaraya Bhat, as mentioned by the third respondent in detail in the reply. Reiterating that the fifth respondent unit is a non-polluting industry and it does not violate any law, it is stated that since no forest land is involved, the question of obtaining permission under Forest (Conservation) Act,
1980 does not arise.
21. The fifth respondent has also filed additional documents with the leave of the
Tribunal as per the order in M.A.No.45 of 2016 dated 6.5.2016. The documents include photographs, extract of draft notification issued by the MoEF & CC dated 4.9.2015 regarding Ecologically Sensitive Area of Western Ghats, Adangal Records, Records of
Rights, Tenancy and Cultivation Certificates etc.
22. It is the contention of the learned counsel appearing for the applicant that
Devara Kadu in Survey Nos.155 and 169 is regarded as ancient, religious and important place and as per the judgment of the Hon’ble Apex Court in T.N. Godavarman’s case, the definition of ‘’forest’’ has been enlarged and therefore the entire area should be treated as ‘’forest area’’. When admittedly the fifth respondent has not obtained any permission from the authorities concerned under the Forest (Conservation) Act, 1980 for using forest area for non-forest purposes, the fifth respondent has no right to proceed with the project. The learned counsel has also relied upon Biodiversity Act, apart from the National Forest Policy to substantiate his contention that the forest area has to be maintained in its pristine state. He also relied upon the Google Image to substantiate his contention that the entire area is a green area.
23. Per contra, it is the contention of Mr. Sanjay Upadhyay, learned counsel appearing for the fifth respondent that when the transfer of land has been effected as early as in the year 2008, the present application has been filed in 2012 viz., on
19.10.2012 and as per Section 14(3) of the National Green Tribunal Act, the application is barred by limitation and the Tribunal has no power to extend the period of limitation beyond the permissible limit under the Act. It is also his contention that even under the
Karnataka State Forest Act, the State Government has not declared any of the portions
15 in respect of the survey numbers which are in dispute as forest land. He would also submit that reliance placed on the judgment in LAFARGE UMIAM MINING PVT (LTD)
(2011) 7 SCC 338 has no application to the facts of the case. It is his contention that the records show that they are the Government Anaadheena and patta Anaadheena lands and in the presence of such documents filed by the fifth respondent which are the documents produced under the statutory provisions of the Rights of Tenancy Act, one cannot presume that inspite of it, it should be treated as forest land. When the SEIAA has granted EC on 27.12.2012 which is not challenged anywhere, it is certainly not open to the applicant to raise all such irrelevant points. The learned counsel has also referred to a Division Bench Judgment of the Karnataka High Court which has been confirmed by the Hon’ble Supreme Court, wherein the High Court has extensively dealt with a similar issue raised by the applicant itself.
24. Supporting his contention Mr. Devaraj Ashok, learned Government Pleader appearing for the Karnataka Government would submit that there are absolutely no documents to show that these lands are Devara Kadu lands. On the other hand, the revenue records clearly show that these are the Government Anaadheena lands. The learned Government Pleader has also taken us to the historical events in this case as to how originally the land was allotted to National Thermal Power Corporation by the government and subsequently withdrew the same and thereafter the lands which were resumed, were allotted to the third respondent Board for the purpose of creating SEZ and in turn the Board has executed a lease-cum sale deed in favour of the fifth respondent in establishing SEZ subject to various conditions and the terms and conditions were complied with in full. He has also submitted that when SEIAA has granted EC, the applicant has deliberately not arrayed SEIAA as well as Revenue
Department as parties and therefore according to the learned Government Pleader there is lack of bonafides on the part of the applicant. He also submitted that the
Tribunal, an entity created under the NGT Act, is to act within the limits of the statute which in fact specifically prescribes period of limitation under Section 14(3) of the NGT
Act viz., six months from the date of cause of action first arose. When the cause of action first arose as early as in the year 2008 and the applicant Society cannot disown its knowledge since it has spent many years filing cases before various courts and
16 beyond six month period the Tribunal can only excuse another sixty days, on showing sufficient cause which can be only by filing a separate application and therefore beyond the said 60 days period the Tribunal itself has no power to condone delay and Section 5 of the Limitation Act has no application.
DISCUSSION AND CONCLUSION: 25. After hearing the learned counsel appearing for both sides and referring to the pleadings, documents filed, including the additional documents and on application of our mind, the point to be decided is basically as to whether Survey Nos.155 and 169 of Nandikur Village constitute Devara Kadu and as to the contents of the government documents and records and various authorities of the State and as to whether the said land would attract Forest (Conservation) Act, 1980.
26. The sacred groves are quite significant from religious point of view and they harbour rich biodiversity and in fact they are hotspots and relics of valuable flora and fauna seamlessly guarded by the local communities for century together. It is also a fact that sacred groves exist all over India and there can be no exception to the State of
Karnataka. Therefore, sacred groves deserve highest level of protection and we fully appreciate the concern expressed by the applicant in protecting the sacred groves. But unfortunately no concrete evidence has been produced before us that Survey Nos.155 and 169 with an extent of 114.78 acres form part of the sacred groves in Nandikur
Village. Even if they are termed as Kavu by the local villagers, they do not fulfil the criteria to be declared as Deemed Forest. Here, it is a case where lands which are recorded as ‘’anadheena’’ (unassigned government land) are planted with exotic tree species like Accacia auriculiformis which itself indicates degraded nature of site falling outside the high rainfall zone without plant diversity typical to Western Ghats and cannot be termed as a Devarakadu.
27. Ex.A12 which is a letter of the Deputy Conservator of Forests, Kundapura
Division, Kundapura dated 20.4.2010 addressed to the Principal Chief Conservator of
Forest, Karnataka clearly states that Survey Nos.155 and 169 are neither notified forest area nor deemed forest. The above letter which has been filed by the applicant itself shows in clear terms that what are planted in the said survey numbers are Acacia
17 species and are used for fire wood and in fact permission granted to the fifth respondent to cut 90 trees are relating to green trees which are used for fire wood purposes.
28. For proper appreciation, it is necessary to extract Ex.A12 letter filed by the applicant along with the application which is as follows:
‘’Sl.No.DMN.Viva: 16/06-07 Office of the Deputy Conservator of Forests, Kundapura Division, Kundapura Date : 20.04.2010 To The Principal Chief Conservator of Forests, Aranya Bhavana Bangalore Sir, Sub: Regarding harvesting of natural vegetation in the areas Meant for establishment of Special Economic Zone, Nandikoor, Mangalore Circle, Kundapura Division Ref: Your letter No.D1/BUD/Paghaka/Viva /2009-10 dated 20/25.03.2010 With reference to the above subject, on verification of the harvesting of natural vegetation in the area meant for establishment of Special Economic Zone, Nandikoor, within the jurisdiction of this Division, Government land which has been given to the Special Economic Zone stands in the name of the Karnataka Industrial Areas Development Board. This land as per the available RTC in the Revenue Department measuring 114.78 Acres of Sy.No.155 and 169 obtained from the Karnataka Industrial Areas Development Board for manufacture of Hi Tech Engineering Products and services Project by M/s.Suzlon Infrastructure Company. The Revenue Records particularly the RTCs stand in the name of Karnataka Industrial Areas Development Board. The said survey numbers are not notified forest area or deemed forests. Therefore, proposal under the provisions of Forest Conservation Act, 1980 has not been submitted. Since this land is not forest land, it falls outside the jurisdiction of the Forest Conservation Act, 1980. In this behalf, the R.T.C. issued by the Revenue Department, and the map in respect of Sy.No.155 and 169 given to the Company by the Karnataka Industrial Areas Development Board, Mangalore are submitted for your perusal.
In the background of aforesaid, M/s.Suzlon Infrastructure Limited on 02.02.2008, have sought permission to cut 90 trees grown in the said area and to enable them to start the work. Accordingly, the previous Deputy Conservator of Forests of this office verified and passed order on 13.03.2008 permitting to cut the trees, out of which none are valuable trees and the same are in the nature of fuel wood; 50 Cubic Meters of fuel wood can be obtained out of 90 trees; that 36,500 cubic meters out of 30 trees in this behalf are transported to the Sita River Godown. Similarly, the said Company have submitted the list of 431 trees for their further execution of work. On verification of the same, it is found that most of the trees are mere Acacia Trees, which can be used only for fuel wood and that in toto 75 cubit feet of fuel wood can be obtained. From this, it is forthcoming that valuable trees are not there.
Before granting permission for cutting the trees in the said areas, the Zonal Forest Officer/Assistant Conservator of Forests have verified that these trees were planted in the area which has been transferred from the Karnataka Industrial Areas Development Board in favour of Suzlon
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Infrastructure Limited and that permission for cutting was granted as per Trees Conservation Act. But, for the present, in the order dated 02.02.2008 of this office, it was ordered to cut 90 trees, out of which 30 trees have been cut and 36,500 cubic meters of fuel wood has been transported to the Government Godown. Still, 60 trees are remained to be cut and vide letter dated 10.11.2008, the permit granting cutting of 431 trees has been suspended temporarily and the said Company has been informed accordingly, through the Zonal Forest Officers, Udupi zone, until further orders.
In view of what is stated above, the area belonged to the Karnataka Industrial Areas Development Board having the records of revenue in the RTC and Map, which have been submitted for your perusal. From the list of trees grown which are meant to cut, it is forthcoming that there were no valuable trees and only fuel wood can be obtained from those trees, which fact is submitted for your perusal.
Yours faithfully
Deputy Conservator of Forests Kundapura Division, Kundapura
29. Annexure Ex.A3 the translated copy of which has been filed by the applicant which relates to the relevant portion of Village Map relating to Survey Nos.155 and 169 states that Survey No.155 as unoccupied/vacant forest land and Survey No.169/2 as unoccupied/vacant panchayath forest land. The said passage is as follows:
Udupi District No.112 Udupi Taluk Village: Nandikuru
Sy.No Sub Division No Classification of Extent Explanation Land 155 -- Punja 51.23 Unoccupied/ Vacant Forest Land
Sy.No Sub Division No Classification of Extent Explanation Land 169 2 Punja 45.00 Unoccupied/ Vacant Panhayath Forest Land
However, no authenticity has been quoted for the so called village Map
30. On the other hand, a reference to the adangal extracts relating to Nandikur Village in respect of Survey Nos.155 and 169 filed by the fifth respondent as additional documents show that the said lands are categorised as Anaadina. The said extracts filed by the fifth respondent are as follows:
155 Sa Pu 1 7 4 4 1 51 23 51 4 Anadina
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169 Sa Pu 1 7 4 4 1 63 55 63 9 Anadina
31. In addition to that the fifth respondent has also filed an extract of Record of
Rights, Tenancy and Cultivation Certificate in Form No.16 of the Village which is a statutory record maintained by the Revenue Department. In those records also it is stated in respect of Survey Nos.155 and 169 as ‘’Anadeena’’. The said records are as follows:
1.Survey 3. Area Wise A.C. 4. Revenue Rs. Ps. No
155 Total Ext Phot 51.23.00.00 a) Land Revn. 10.97 Kharab (a) b) Judi Phot Kharab (b) c) Cessess Balance 51.23.00.00 d) Water Rate 2. Hissa- * Total 10.97
5. Soil 7. Number of 8. Area wise irrigation extent Category Trees
6. Patta Name No. SI. Water Mungaru Hingaru Garden Total No. Source Anadeena
1.Survey 3. Area Wise A.C. 4. Revenue Rs. Ps. No
169 Total Ext 63.55.00.00 a) Land Revn. 56.84 Phot Kharab (a) b) Judi Phot Kharab (b) c) Cessess Balance 63.55.00.00 d) Water Rate 2. Hissa- * Total 56.84
5. Soil 7. Number of 8. Area wise irrigation extent Category Trees
6. Patta Name No. SI. Water Mungaru Hingaru Garden Total No. Source Anadeena
32. A comparison of these records filed by the fifth respondent along with Ex.A12 filed by the applicant clearly indicate that the lands covered in the said survey numbers are not ‘’forest lands’’. On the other hand, they are ‘’government poramboke lands’’ and
20 therefore there is no reason for this Tribunal to conclude that as per the revenue records, Survey Nos.155 and 169 of Nandikur Village are categorised as Devara Kadu.
33. A reference made by the learned counsel appearing for the applicant about the report prepared by a Ph.D., student, as part of his study made about Nandikur Sacred
Grove states that the lands in question are nothing but sacred groves, locally known as
Devarakadu. But the report of the student has not been published as Research Paper and no authority has been quoted for making such study. Such unpublished report cannot be taken into consideration; especially in the light of the Village Map, Revenue
Records and statutory records maintained by the authorities concerned. The research study quoting the village survey map, mentioned that the entire Survey Nos.155 and
169 of Nandikur Village are designated as ‘’Kavu’’ and ‘’forest’’ respectively; but the authenticity of such village survey map is unknown. The student’s study also mentions that the area is designated as Durga Parameshwari Temple Forest and the student quotes that the report is based on the announcement of the local panchayat. In the light of the forest officials taking a clear stand in their affidavit and also as revealed in the revenue records that the lands in Survey Nos.155 and 169 are not stated as ‘’forest’’, it is not known as to how one can jump to a conclusion that it is a Devara Kadu and hence it should be treated a Deemed Forest, attracting Forest (Conservation) Act, 1980.
Based on such study made by a Ph.D., student in a Foreign University, quoting some hearsay statement of the villagers and simply depending on a village map, without quoting any authenticity and without actually visiting the site to ascertain that it is a forest, it is not known how the learned counsel appearing for the applicant is arguing that it should be treated as ‘’Forest’’ and hence it attracts Forest (Conservation) Act,
1980.
34. In the compilation of proceedings of the International Conference on Tropical
Ecosystems held at Bengaluru in July 2001 and published by Ashoka Trust for
Research in Ecology and Environment (ATREE) which also the applicant has relied upon, it is stated that the extent of sacred grove in Nandikur village is about 5 ha and due to construction of coastal Konkan railway track, parts of the grove are threatened.
Whereas the research study of the aforesaid Ph.D. student states that the entire Sy.
Nos. 155 and 169 extending to 114.78 ha fall under ‘Devarakadu’. Thus there is a
21 contradiction in the two research reports relied upon by the applicant indicating that the applicant itself is not clear where exactly the so called ‘Devarakadu’ is located in
Nandikur village and what is its extent. Moreover, the site mentioned in the proceedings of ATREE is located adjacent to railway track and there is no proof that it is adjacent to
Sy. No 155 and 169. The material records placed before us indicate that the land in question relating to the project proponent, is not adjacent to Konkan railway track and thus there is a clear contradiction. What is the exact location and extent of the so called sacred grove ‘Devarakadu’ in Nandikur village is nowhere recorded and no authenticity is existing which can stand scrutiny in the eyes of law.
35. As per the proceedings compiled by the ATREE, the extent of the sacred grove is only 5 ha and it consists 22 tree species with a total of 335 individuals recorded in 0.1 ha (1000 sq m) study area (sample plot) and the total stand density of the grove based on sample plot (1000 sq m) analysis is 3350 individuals per ha. Two
Dipeterocarp species viz. Hopea parviflora and Hopea ponga which are tropical lowland rainforest trees common to the Western Ghats, constitute 2020 individuals out of 3350 individuals per ha and this does not tally with the number of trees enumerated by the
Forest Department in Sy. Nos. 155 and 169 having a total area of 114.78 acres. The list of trees prepared by the Forest Department is not disputed by the applicant. The sacred grove study area in Nandikur village published in the proceedings by ATREE, consists of high density tree growth typical of Western Ghats and it does not tally with the tree growth enumerated in the Sy. Nos. in question and the species listed in the proceedings compiled by the ATREE are all indigenous broad leaved species which form part of semi ever green forest and they are all natural to Western Ghats with high stand density. Whereas the total number of trees of 30 cm and above GBH enumerated in 114.78 acres in these two Sy. Nos. is only 90 in the first list which were already permitted to be cut by the Forest Department and 431 in the second list which indicates sparse tree growth and most of which is artificially planted Acacia auriculiformis, an exotic species. Acacia auriculiformis is an evergreen tree. It is suitable for controlling soil erosion because of its spreading, superficial and densely matted root system . It is also used in stabilizing eroded land and hence it is a good species for rehabilitating degraded lands. The dense, dark-green foliage, which remains throughout the dry
22 season, makes it an excellent shade tree. It grows rapidly in during its early growth even on infertile sites and tolerance of both highly acidic and alkaline soils make it popular for stabilizing and re-vegetating mine spoils. Plantations of A. auriculiformis improve soil physico-chemical properties such as water-holding capacity, organic carbon, nitrogen and potassium through litter fall. It provides high calorific fuel wood and charcoal. It is clear that this species has been planted at the site in question may be because of the degraded nature of the soil. If it is a well protected ‘Devarakadu’ with rich biodiversity and high stand density, the site would not have been degraded and there was no necessity for planting such exotic species.
36. Therefore it is clear that the 5 ha ‘Devara kadu’ which the applicant relied upon, is not a part of the land given to the project proponent and it may be located elsewhere.
37. If we refer to the government records and the statement of authority, it will be clear that the Deputy Conservator of Forests, Kundapur Division in his letter dated
20.04.2010 addressed to the Principal Chief Conservator of Forests (PCCF), Karnataka has clearly stated that as per the available RTC (Rights, Tenancy and Cultivation
Certificate) with the Revenue Department, the land in question in Survey Nos. 155 and
169 was taken possession by the 5th respondent project proponent from the 3rd respondent and it stands in the name of 3rd respondent. The land is neither a notified
Forest nor Deemed Forest. Therefore it falls outside the scope of the Forest
(Conservation) Act, 1980. Based on the request made by the 5th respondent dated
02.02.2008, permission was granted to the 5th respondent on 13.03.2008 to cut 90 trees which were estimated to yield about 50 CMT of firewood. Before granting permission, the concerned Assistant Conservator of Forest verified the trees and found that these trees were planted and not naturally grown and accordingly permission was granted for cutting the trees as per The Karnataka Preservation of Trees Act, 1976. Similarly the 5th respondent submitted a further list of 431 trees and on verification it is found that most of the trees are of Acacia auriculiformis species yielding only fuel wood which may be estimated to be 75 CMT. However, the contention of the applicant that only the economic value of the standing tree growth was taken into account and no ecological value is considered, requires a thought and it is for the authorities to take this into
23 account and prescribe the condition of raising green belt by the project proponent at the project site to offset the loss.
38. Therefore, the contention of the learned counsel appearing for the applicant that only the economic value of the standing tree growth was taken into account and no ecological value is considered may not be a relevant factor. However, we make it clear that it is for the authorities to take the above said aspect into consideration while prescribing condition of raising green belt by the project proponent at the project site to offset the loss.
39. The Central Empowered Committee (CEC) in its letter dated 17.02.2012 forwarded a representation dated 05.06.2011 made by the applicant, to the PCCF,
Karnataka. In the representation, the applicant had alleged that there is violation of the
Forest (Conservation) Act, 1980 and the project proponent is indulging in illegal cutting of trees. As per the records produced by the applicant there is no further information as to the outcome of the letter sent by CEC to the PCCF and what was the response of the
PCCF. The applicant has not mentioned anything about it but without waiting for any response of the PCCF, the applicant has filed the present Application before this
Tribunal.
40. The village records produced by the project proponent clearly indicate that the land in these two Sy. Nos. is recorded as ‘anadheena’ which amounts to
‘unassigned government lands’ and nowhere it is recorded as forest land. Further, these
Sy. Nos. are nowhere mentioned as falling in Ecologically Sensitive Area (ESA) as a part of the Western Ghats Ecology Expert Panel (WGEEP) reports submitted by Prof.
Madhav Gadgil and Dr. K. Kasturirangan committees on Western Ghats. Nevertheless, no final notification is issued declaring the ESAs in Western Ghats based on the reports of the above said committees.
41. Now the question that arises for consideration is as to whether the site in question is a ‘’Deemed Forest’’. As per the directions of the Hon’ble Supreme Court dated 12.12.1996 in T.N Godavarman Thirumulpad vs. Union of India, (W.P. No.202 of
1995), the State of Karnataka constituted Expert Committee vide G. O. dated
10.01.1997 to identify areas recorded as ‘Forests’ and other areas which could be
24 called as ‘Forests’ irrespective of the ownership of the land. In the Expert Committee report submitted to government on 02.04.1997 the extent of Devarakadu (Temple
Forests) is shown as 7748.00 ha in the whole of Karnataka state but no record is produced to the effect that the aforesaid two Sy. Nos. in Nandikur village are included in that category. Even the reconstituted Expert Committee - I constituted vide G.O. dated
25.09.2002 which arrived at an extent of 2956.67 ha of ‘Devarakadu’ forest and
994881.11 ha of Deemed Forest in the state of Karnataka, has not mentioned anything about the aforesaid Sy. Nos. which clearly shows that the lands in aforesaid Sy. Nos. do not fulfil the criteria to be declared as Deemed forest as the minimum extent of area should be of at least 2 ha having a density of at least 50 naturally growing trees of GBH
30 cm and above per ha to declare the area as a Deemed Forest. Therefore it is clear that these government lands in Sy. Nos. 155 and 169 in Nandikur village are not qualified to be categorised as Deemed Forest since there are no naturally growing trees with a density of 50 or more trees per ha. It is relevant to point out at this stage that the tree growth verified by the Range Forest Officer in respect of Survey No.155 and 169 of the Government Land situated in Nandikur and the study shows that most of the species are Acacia which are planted and not natural.
42. In respect of the affidavit filed by the Managing Trustee of Sri Durga
Parameshwari Temple which has been filed as Annexure Ex. A18 by the applicant, the said Mr. Madhavaraya Bhat clearly states that he has been serving in the temple for the last ten years and the temple is in existence for the last ten years. However, he has chosen to state in one paragraph that the temple is a Devara Kadu in Survey No.159 and 165 of Nandikur Village wherein, from time immemorial, people have been worshipping 7 Kattas which are believed to be the abode of seven Durga Goddess. The affidavit itself is dated 21.5.2012, just before the filing of the present application and in the light of the specific stand taken by the respondents that the said deponent himself has received huge amount of compensation in respect of his lands situated adjacent which were acquired, the authenticity and correctness of such statement is certainly doubtful.
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43. In the light of the categorical stand in the affidavit that he has been the trustee of the temple for a period of ten years and the temple is in existence for the last ten years, the other averments made in the affidavit that it has been Devara Kadu and worshipped from time immemorial can only be a matter of hearsay for him. Moreover, it is astonishing to note that in the said affidavit Mr. Madhavaraya Bhat has specifically chosen to state that the temple is Devara Kadu or sacred grove in Survey Nos.159 and
165 of Nandikur Village wherein from time immemorial people have been worshipping 7 kattas. However, the application relates to Survey Nos.155 and 169 of Nandikur Village and therefore, in our considered view the said affidavit has no basis for consideration of the issue involved in this case and we have no hesitation to reject the relevancy of the said affidavit in the facts and circumstances of the case for the simple reason that the affidavit relates to some other survey numbers viz., 159 and 165 of Nandikur Village; while the application relates to Survey Nos. 155 and 169 of Nandikur Village.
44. Therefore, for all the above said reasons, on the factual matrix, we have to necessarily arrive at a conclusion that the land in dispute in this application is not
Devara Kadu and at least there are no records worth placed before us to conclude to that effect. On the other hand, the records produced by the fifth respondent as well as the reply affidavit filed by the respondents show that as per the revenue records they are the government lands, either Anadheena or otherwise. In the absence of any record to show that these are either forest land or can be deemed to be forest land, there is no question of applicability of Forest (Conservation) Act, 1980.
45. The relevancy of the revenue records to consider whether a place in the adangal or not was considered in detail by the Hon’ble Supreme Court in IN RE:
CONSTRUCTION OF PARK AT NOIDA NEAR OKHLA BIRD SANCTUARY VS. UNION
OF INDIA (2011) 1 SCC 744. It was in that case when a question arose as to whether mere satellite image will be sufficient especially in the presence of revenue records wherein if they are recorded as agricultural land, banjar or parti, the Hon’ble Supreme
Court held that there is no reason not to give credence to those records. The relevant portions of the judgment are as follows:
26
‘’24. The point raised by Mr. Bhushan may be valid in certain cases but in the facts of the case his submissions are quite out of context. In support of the applicants' case that there used to be a forest at the project site he relies upon the report of the CCF based on site inspection and the Google image and most heavily on the FSI report based on satellite imagery and analysed by GSI application. A satellite image may not always reveal the complete story. Let us for a moment come down from the satellite to the earth and see what picture emerges from the government records and how things appear on the ground. In the revenue records, none of the khasras (plots) falling in the project area was ever shown as jungle or forest. According to the settlement year 1359 Fasli (1952A.D.) all the khasras are recorded as agricultural land, Banjar (uncultivable) or Parti (uncultivated).
25. NOIDA was set up in 1976 and the lands of the project area were acquired under the Land Acquisition Act mostly between the years 1980 to 1983 (two or three plots were notified under sections 4/6 of the Act in 1979 and one or two plots as late as in the year 1991). But the possession of a very large part of the lands under acquisition (that now form the project site) was taken over in the year 1983. From the details of the acquisition proceedings furnished in a tabular form (annexure 9 to the Counter Affidavit on behalf of respondents no. 2 & 3) it would appear that though on most of the plots there were properties of one kind or the other, there was not a single tree on any of the plots under acquisition. The records of the land acquisition proceedings, thus, complement the revenue record of 1952 in which the lands were shown as agricultural and not as jungle or forest. There is no reason not to give due credence to these records since they pertain to a time when the impugned project was not even in anyone's imagination and its proponents were nowhere on the scene’’.
46. There is one other issue that is relevant. It is not in dispute that the applicant-
Society has been fighting legal battle in respect of this area for a long time. Originally when the lands were assigned to NTPC for Thermal Power Project that was questioned by the applicant in a writ petition which came to be dismissed after elaborate discussion by the Division Bench of the Hon’ble High Court of Karnataka in JANA JAGRUTHI
SAMITHI V. UNION OF INDIA 1991(2) Kar.L.J.524 (DB) dated 6.8.1991). The present applicant has filed Public Interest Litigation in respect of the same survey number when there was a proposal for setting up of Mangalore Super Thermal Power Station as well as ash pond at Nandikur Village with the aid of erstwhile USSR, raising a specific issue that there was no application of mind to the applicability of the Forest (Conservation)
Act, 1980. The Division Bench after elaborately discussing the entire issue threadbare and in the words of Hon’ble Justice S. Mohan (Chief Justice) ultimately held as follows:
“As is rightly urged in the statement of objections, if there has been clearance form Government of India, Planning Commission, Central Electricity Authority, Karnataka State pollution Control Board, Department of Ecology and Environment (Govt. of Karnataka), Administrative Ministry in the Department of Power (Govt. of India), Ministry of Finance and Public Investment Board, what remains is only
27
the clearance by the Cabinet Committee on Economic Afffairs which is stated to be formal. We are unable how the petitioners could complain of any environment pollution and non- application of mind. We have already extracted the observations of Ranganath Misra, J . as he then was , in AIR 1987 SC 359. We will only reiterate that a balance between preservation of ecology and utilisation of modern technology has been arrived at by an Expert Body on the basis of appropriate advices. Therefore, it is no use for the petitioners to contend that unless there s clearance of the project, the lands could not be acquired. We have already seen how this is a time- bound programme. The matter cannot brook delay at all as it would cause to the public exchequer and the Nation serious financial implications, No doubt the petitioners may have a say in view of 1991 (2) SCC/539; but they cannot assume that they alone are interested in safeguarding the environment and that the authorities are oblivious to this. In such cases we should only remind ourselves what the Supreme Court said in AIR 1987 SC 1109 in para 60 which read thus:- “60. It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self- imposed restraint on public interest litigations.”
47. Admittedly, as against the said finding, the Special Leave Petition filed by the applicant has been dismissed. But that may not be the main reason for our quoting the judgment of the Division Bench, since on merit, we have decided the issue. There is one other legal issue that arises out of the decision in which the applicant is a party viz., whether the present application has been filed within the time prescribed under Section
14(3) of the National Green Tribunal Act, 2010 which reads as follows:
‘’14. (3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six month from the date on which the cause of action for such dispute first arose.’’
Therefore, from the date of the cause of action first arose, within six months, an application must be filed before the Tribunal and the Tribunal will have jurisdiction for condoning delay of 60 days on sufficient cause having been shown. On the factual matrix which have already been elicited, it is clear that in respect of these lands and adjacent lands, acquisition proceedings have been completed and Survey Nos.155 and
169 of Nandikur Village being categorised as ‘’government land’’ in the revenue records put together have been given possession by the third respondent Board to the purchaser viz., the fifth respondent as early as on 24.3.2007. Permission to cut the
28 trees was granted by the Deputy Conservator of Forest, Kundapura Division,
Kundapura on 6.11.2008. The Government of India, by statutory notification issued under Special Economic Zones Act, 2005 has notified forest areas in Nadasalu,
Nandikooru, Pulimaru and Hemajadi Villages in Udupi District as early as on 11.9.2007 and in the notification in Serial Nos.235 and 237, Survey Nos.155 and 169 respectively came to be notified as forming part of SEZ.
48. All these facts were revealed by the applicant itself in the previous writ petitions and therefore the applicant cannot disown knowledge about the entire issue. Having known about the same and having waited till the decision was given to the fifth respondent as early as in the year 2008, the applicant has chosen to approach this
Tribunal in October, 2012 and there is absolutely nothing to show as to how the limitation prescribed under Section 14(3) of the National Green Tribunal Act has been answered.
49. Even though on merits of the matter, we have held that there is nothing for us to come to a conclusion that the survey numbers concerning the case are either Devara
Kadu or forest land or deemed forest and on the other hand there are revenue and other records to show that these lands are ‘’government poramboke land’’, the point of limitation, we had to necessarily refer, inspite of the fact that the same has not been very seriously argued by either of the counsel. Looking at any angle, the applicant is not entitled for any relief claimed in this application.
Accordingly, the application fails and the same is dismissed. The interim orders granted stand vacated . There shall be no order as to cost.
Justice Dr.P. Jyothimani Judicial Member
Shri P.S. Rao Expert Member
29