Existing Criteria For Identification Of Private Forests In Goa Valid, Require No Alteration: Supreme Court

"...the issue relating to identification and demarcation of private forests in the State of Goa has attained finality on three criteria as indicated herein supra 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", a three-Judge Bench of Justices BR Gavai, Aravind Kumar and Prashant Kumar Mishra said.

It was added that, "...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 Bench upheld the impugned order passed by the NGT, whereby applications filed by the appellant-Foundation were disposed on the ground that the issue of determination of criteria for identification of 'forest' formed part of proceedings in T.N. Godavarman case (of which the top Court was seized). Notably, though the applications were not decided on merits, the Tribunal had called for the Chief Secretary of Goa to work out a time-bound plan for completion of forest identification and its demarcation.

At the outset, while tracing the history on the subject, the court observed that certain criteria were formulated by the Forest Department of Goa in 1991, which were later adopted by the Sawant Committee (in 1997) and the Karapurkar Committee (in 2000) constituted by the State under the court's directions in T.N. Godavarman to identify private forests. Later, a few more Committees were constituted and they as well carried out the identification of private forests based on the same criteria.

The appellant's challenge primarily centred on the 1991 criteria relating to canopy density (criteria No.iii). Its case was that areas of natural vegetation having tree canopy density between 0.1 to 0.4 ought to be considered as 'forest' for applicability of Forest Conservation Act, 1980.

The appellant urged that there are several forest areas which are presently degraded and having canopy density of less than 0.4, but were originally dense or medium dense forests, and thus they must be identified as forests. It also argued that such lands could not be unilaterally diverted to non-forestry purpose without prior approval under FCA, 1980.

Essentially, the underlying grievance was that the Committees constituted by the State did not identify areas which were earlier forests but now stood degraded, and that the degraded forests had not been notified. In support of its contentions, the appellant relied on parameters used by the Forest Survey of India, which were based on 0.1 density forest in an area of 1 hectare.

The respondents, on the other hand, pled that the criteria for identification of private forests determined in 1991 had obtained finality. It was submitted that the Forest Department had proposed a crown density of 40% and a minimum area of 5 (five) Ha since it was not viable in the long run for the department to conserve small patches of forest land. Attention was drawn to a public notice issued by State of Goa in 1997, explicating the criteria for identification of forests, as per which, "canopy density should not be less than 0.4".

The respondents contended that the appeals were barred by res judicata, as the appellant had earlier sought re-visitation of the criteria twice and failed. It was further argued that in Tata Housing Development Corporation v. Goa Foundation, the pre-existing criteria for identification of forests received the imprimatur of the Supreme Court.

The appellant's reliance on FSI parameters was objected to by averring that there was no co-relation between the parameters set by FSI for identifying deemed forest based on Minimum mappable area and identification of the said area by respective states. It was explained that FSI was using its parameters to map the forest cover and tree cover in India, which was completely different from determination of forest land and forest area in T.N. Godavarman.

The respondents also highlighted that if the 0.1 density argument was acceded, every 10,000 sq. m plot with 10 to 20 trees would have to be determined as a forest and a cumbersome prior clearance would be required on every private land.

After hearing the submissions and going through the material, the court noted that the criteria published in 1997 notice were not challenged by the appellant. It held that the appellant was accordingly estopped from raising an issue based on the criteria at this stage.

It was further recorded that in Tata Housing, it stood concluded that the 3 criteria mentioned in Sawant Committee's 2nd Report were just and proper.

The appellant's reliance on the concept of Net Present Value, which was verified by the court in T.N. Godavarman to determine economic loss caused on account of deforestation, was discounted by the court.

"The process of identification has been gone into by the experts as reflected from the Sawant Committee report and accepted by this Court in Tata Housing (supra). Hence, it would not be apt and appropriate for us to sit in the arm chair of the experts and to substitute our opinion or that of the appellants in contrary distinction to the opinion expressed by the experts and as such we refrain from doing so."

Pertinently, the court considered that the appellant was taking contradictory stands. On one hand, it was challenging the criteria adopted by the Sawant and Karapurkar Committees for identification of inter-alia private forests. On the other, it was relying on the same criteria before the Tribunal.

Merit was found in the respondents' contention that the change of existing criteria in determining the deemed forest would have a negative impact on the conservation measures being undertaken.

Another observation made by the court was that it had expressly delegated the task of identifying forest areas to Expert Committees (to be constituted by State governments), and thus recognized that there can be no uniform, country-wide criteria for identification.

“…the application of criteria cannot be universally standardized across the country, as it is contingent upon the specific geography and geographical conditions prevalent in each State. Each State possesses its distinctive geographical features, and as a result, the criteria may vary from one State to another.”

While rejecting the appeals, the court vacated the interim order passed in 2015, directing the respondents to not issue any 'No Objection Certificate' for conversion of any plot that had natural vegetation with tree canopy density in excess of 0.1 and an area above 1 hectare.

CASE TITLE: GOA FOUNDATION V. STATE OF GOA AND OTHERS, CIVIL APPEAL NO. 12234-35 of 2018

Citation : 2024 LiveLaw (SC) 61