Existing criteria for identification of private forests in Goa are adequate and require no alteration: Top Court dismisses Goa Foundation’s plea challenging criteria issued by State Govt for identification of forests
Justices Prashant Kumar Mishra, Aravind Kumar & B.R. Gavai [24-01-2024]

Read Order: T.N. GODAVARMAN THIRUMULPAD AND OTHERS v. UNION OF INDIA AND OTHERS [SC- WRIT PETITION (CIVIL) NO. 202 OF 1995]

Tulip Kanth

New Delhi, January 25, 2024: In a case where the appellant was seeking a change in the criteria being followed by State of Goa for identification and demarcation of forest under private ownership or private forest, the Supreme Court has held that the existing criteria are valid & adequate.

“The Ministry of Environment, Forest & Climate Change guidelines, as well as the Scheduled Tribes & other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, are clear and unambiguous, as they have exempted the application of the Forest Conservation Act, 1980, on areas that are less than 1 hectare and where not more than 75 trees have to be cut”, the 3-Judge Bench of Justice Prashant Kumar Mishra, Justice Aravind Kumar and Justice B.R. Gavai held.

The challenge in the present appeals revolved around the criteria issued by the Respondent(s) i.e., the State of Goa and Others for the identification of forests in the State.

The Government of Goa constituted the Sawant Committee in 1997 which identified a total of 46.89 sq. kms as private forest. Thereafter the Karapurkar Committee was constituted in 2000. Since the Karapurkar Committee suggested a revisit to exclude some of the forest areas already identified by the Sawant Committee, the present appellant, Goa Foundation, filed Writ Petition before the Top Court challenging the appointment of the Karapurkar Committee. Meanwhile, the Karapurkar Committee submitted its final report and identified 20.18 sq. kms of private forests. However, the task of both the Committees was incomplete as some areas were left unidentified. The present appellant i.e., Goa Foundation, filed Writ Petition for directions to the State Government of Goa to complete the process of identification of forest and to identify the degraded forest lands.

The State Government appointed two new Committees (The North Goa District Committee and the South Goa District Committee) to identify the remaining areas of private forests in North and South Goa districts that had not been identified by the previous Committee(s).  Further, the Appellant filed another Writ Petition seeking the quashing of criteria pertaining to the canopy density which should not be less than 0.4. The Bombay High Court transferred both the Writ to the NGT. The NGT by the impugned order had set aside both the applications and hence the appellant approached the Top Court.

It was the contention of the appellant that the tribunal erred in not passing an order on merits on the premise that the issue was seisin before the Top Court. It was further contended that petition was filed challenging the criteria of minimum 40 per cent canopy density for identification as forest land. It was argued that identification of private forests on the basis of criteria accepted by FSI and by this Court in the order of 2008 passed for determining NPV also to be adopted and followed for identification of forest, which would be in the interest of protection of environment. The appellant prayed for revisiting the criteria for identification of private forest/deemed forest on private lands in the State of Goa, by using the parameters used by FSI, that is based on 0.1 density forest in an area of 1 (one) ha.

The respondent’s counsel submitted that the criteria for identifying the forests and the process therein by different States is under an Order of this Court dated 12.12.1996 in the T.N. Godavarman Thirumulpad v. Union of India  [LQ/SC/1996/2183]. This Court mandated that the State Government to evolve the criteria as per their local situation and considering the fact that Forest, being a concurrent subject, needs to be determined as such by the State Government for applicability of the FCA 1980.

The Bench was of the opinion that the appellants cannot feign ignorance about the reports of the Expert Committees. Also, the appellant, asserting a public cause, cannot be considered unaware of the criteria proposed by the Committee. These criteria as recommended by the Committee were published in the public notice and have been a subject of agitation by the appellant/petitioner across various forums.

“Hence, the appellant/petitioner having not raised its little finger to the criteria as prescribed and published in the public notice dated 08.02.1997 is estopped from raising the said issue at this stage. On this short ground itself the appeal has to fail and appellant has to be non-suited”, it said.

It was further noticed by the Bench that the issue relating to identification and demarcation of private forests in the State of Goa had attained finality on three criteria pertaining to forest tree composition, contiguous forest land and minimum area should be 5 (five) hectares and canopy density should not be less than 0.4. In the teeth of the afore-stated facts and the orders passed by the Tribunals as affirmed by the Top Court, the State of Goa had also issued a gazette notification notifying 46.11 sq. km. as private forest.

The Bench also observed that on one hand, the appellant was challenging the criteria adopted by the Sawant and Karapurkar Committees for the identification of private forests and on the other hand it relied on the same criteria adopted by these two committees for the identification of forests, including private forests, before the Tribunal. Thus, the Top Court opined that the appellant cannot be permitted to approbate and reprobate. The appellant had also failed in its endeavour to have the second interim report of the Sawant Committee and the criteria laid down thereunder to be revisited in Tata Housing Development Corporation v. Goa Foundation [LQ/SC/2003/940].

The Bench accepted the submission of the Senior Counsel appearing for the State of Goa that the change of existing criteria in determining the deemed forest would have a negative impact on the conservation measures being undertaken hitherto.Further, it was noticed if the criteria i.e., the canopy density of 0.4 and minimum area of 5 ha is reduced to 0.1 and 1 ha as contended, respectively, it will result in the plantations of coconut, orchards, bamboo, palm, supari, cashew, etc., grown by farmers on their private lands into the category of private forest. The effect would be that even for a minor development on the concerned land, the permission of the Government under the FCA 1980, for the landholders, would become indispensable. It was also noticed that none of the States have adopted the criteria proposed by the appellant, namely the 0.1 density criteria, as it would result in opening a pandoras box, and would result in all the States undertaking the task of reassessing the forest area all over again.

The Top Court also recognised that there can be no uniform criteria for such identification across the country as it had expressly delegated the task of identifying forest areas to Expert Committees to be constituted by State Governments. Thus, upholding the impugned order, the Bench dismissed the appeals.