U.V. Bakre, J.
Heard Mr. Shivan Dessai and Mr. Sudin Usgaonkar, learned Counsel appearing on behalf of the petitioners, Mr. A.N.S. Nadkarni, learned Advocate General, appearing for respondents no. 1 to 4 in Writ Petition No. 555/2009 and for respondents no. 1 to 3 in other Writ Petitions and Mrs. Norma Alvares on behalf of Goa Foundation.
2. Rule in Writ Petition No. 774/2011. Learned Counsel for the respective respondents waive service of notice. Writ Petition No. 774/2011 is heard forthwith, with the consent of learned Counsel for the parties, along with other petitions, wherein Rule was already issued earlier.
3. By these Writ Petitions filed under Article 226 of the Constitution of India, the petitioners have challenged the non-grant of NOC by respondent no. 3 to the applications made by the petitioners in each case, for conversion of land from agricultural to non-agricultural purposes under Section 32(1) of the Goa, Daman and Diu Land Revenue Code, 1968. (the Code, for short). The petitioners have prayed for a writ of Mandamus or any other appropriate writ, direction or order, directing the respondent no. 3 to grant NOC for conversion of their properties.
4. The petitioner in Writ Petition No. 555/2010 has also prayed for a writ of certiorari or in the nature of certiorari or any other appropriate writ, direction or order, quashing and setting aside the impugned communication dated 03/06/2010 issued by respondent no. 3, by which the petitioner has been informed that the area under P.T.S. No. 77 of Mapusa City is figuring in the list of survey numbers identified as Private Forest by State Level Expert Committee and hence NOC cannot be issued till the matter is finally decided by the High Court.
5. The land which is the subject matter of Writ Petition No. 382 of 2010 admeasures 1645 square metres and is the northern part of the property known as âBILVACHEM BATTAâ bearing Chalta No. 54 of P. T. Sheet No. 102, situated in the ward of Camarcazana, City of Mapusa within the limits of Mapusa Municipal Council and Sub-District of Bardez of District of North Goa. The subject matter of the Writ Petition No. 555 of 2010 is the properties known as âPediachi Araddiâ also known as âPEDDEACHI AEADIâ bearing Land registration No. 51175 and âARADI DE PEDEM â GRANDEâ also known as âARADIâ, not described in the Land Registration Office, both adjoining each other and surveyed together in the city survey of Mapusa under Chalta No. 28 of P. T. Sheet No. 77, admeasuring 2166 square metres and containing a residential house bearing Municipal House no. 207/4, an outhouse bearing Municipal House no. 208/4, a toilet and a well therein. The land concerned in Writ Petition No. 807 of 2010 admeasures 264 square metres and 1700 square metres respectively from the properties known as âPEDACO DE CUNCHELIM OU TEMBA COM SEUS ANEIXOSâ bearing Chaltas No. 7 and 9 of P. T. Sheet No. 10, situated at Cunchelim, City of Mapusa. Lastly, the subject matter of Writ Petition No. 774 of 2011 is the land admeasuring 1232 square metres from property known as âVangorbataâ or Essodechemâ bearing Chalta No. 16 of P. T. Sheet No. 10 situated at Cunchelim, City of Mapusa.
6. According to the petitioners, they are owners in possession of the said properties which are in settlement zone and they have applied for conversion of the said properties from agricultural to non-agricultural purposes under Section 32(1) of the Code and that respondent no. 2 has informed them that the said properties are covered and identified as Private Forest in Sawant and Karapurkar Committee Reports and has directed them to obtain NOC from respondent no. 3. They have alleged that when they approached respondent no. 3, they were informed that they are in the process of conducting a private independent survey in respect of the forest land which would be filed in the High Court of Bombay at Goa in Writ Petition No. 286 of 2003. According to the petitioners, however, during the field survey conducted by Forest Department, it was observed that the said plots did not satisfy the criteria of the Private Forest. The petitioners therefore claim that they are entitled to the reliefs as claimed.
7. By order dated 12.12.1996 in the case of âT. N. Godavarman Thirumulkpad V/s Union of India and othersâ, reported in [(1997)2 SCC 267], the Apex Court has directed that all on-going non-forest activities in the forest lands which do not have requisite clearance from the Central Government under the Forest Conversion Act, 1980 (âFCAâ for short) shall cease forthwith. Every State has been directed to promptly ensure total cessation of all such activities. The Apex Court has further directed appointment of the State Level Expert Committee (SLEC, for short) to identify the forest lands. Goa Government appointed the Sawant Committee in January, 1997 and Karapurkar Committee in September, 2000 to identify the forest lands as per the order dated 12.12.1996 passed by the Apex Court and the interim report of Sawant Committee and its final report submitted in the year 1999 as well as the report of Karapurkar Committee submitted in the year 2002 have been placed before the Supreme Court in the Writ Petition No. 202 of 1995 which is still pending adjudication. Goa Foundation has filed a Writ Petition No. 286 of 2003 in this Court since the lands identified as forest in Sawant and Karapurkar Committee reports were being diverted to non-forest use without prior approval under the FCA. By order dated 02.07.2003 passed by this Court in the said Writ Petition No. 286 of 2003, this Court directed that no permission for further development or change of zoning should be granted until the Apex Court finally decides the issue based on Sawant Committee and/or Karapurkar Committee Reports. It has been further directed that it will be open to a party to develop the land only if he obtains necessary permissions from the Ministry of Environment and Forest (MoEF, for short) under the FCA provided it has other necessary permissions to carry out the development.
8. The plots concerned in the present petitions are from P. T. Sheets no. 102, 77 and 10 of Mapusa City. In the remarks column of the relevant portion of the report of Karapurkar Committee, pertaining, inter alia, to P. T. Sheets No. 102, 77 and 10 of City of Mapusa, it is stated as under:-
âUpper slopes of the dongar consist of natural vegetation while the lower parts are already developed. Developed area can be separated from the natural forest by carrying out detailed ground survey.â
9. In the affidavit-in-reply filed on behalf of respondent no.3, it is stated that the properties of the petitioners were identified as Private Forest by SLEC (Karapurkar Committee) and thereafter by the survey and demarcation of the area was carried out and report has been submitted before this Court. It is stated that as per the said survey and demarcation carried out by the Department, it was found that the entire areas which are subject matter of the present petitions do not meet the criteria adopted by SLEC for identification of the Private Forest and hence, the same are not demarcated as private forest.
10. In the affidavit filed by Goa Foundation, it has been alleged that the petitioners have not stated the exact location of their plots so as to know whether it falls in the area identified by Karapurkar Committee as natural vegetation area (upper slope) or developed area (lower slope). It is further stated that the demarcation exercise carried out by the Forest Department in terms of the said two expert committee reports is under challenge in Writ Petition No. 673 of 2003.
11. Learned Counsel appearing for the petitioners submitted that the petitioners have applied for conversion of only small areas and they want to construct their residential houses therein. They pointed out that though respondent no. 3 has opined that the properties of the petitioners are identified as Private Forest by the SLEC, however, during the field survey it was observed that the said areas do not meet the criteria of Private Forest as laid down in the report of the SLEC. In so far as Writ Petition No. 555 of 2010 is concerned, Mr. Dessai, learned counsel, submitted that in this land there is already a residential house, an outhouse, a toilet and a well and that the petitioner wanted to construct a residential bungalow and was granted certificate of exemption from the provision of Section 32(1) of the Code, approvals from the North Goa Planning and Development authority and construction licence from Mapusa Municipal Council which licence was once renewed and only when the petitioner had asked for second renewal of said construction licence, the respondent no.3 had refused NOC by misconstruing the reports of Sawant and Karapurkar Committee. Learned counsel for the petitioners, therefore, urged that the non-grant of NOC by respondent no.3 for conversion of land from agricultural to non-agricultural purposes is arbitrary and illegal and therefore, the petitioners are entitled to the reliefs as claimed for.
12. Learned Counsel, appearing on behalf of the petitioners, pointed out that previously, in Writ Petitions No. 227/2008, 398/2008, 126/2009, 141/2009, 562/2009 and 614/2009, this Court has held that various authorities of the Government are bound to decide the permission sought on behalf of the petitioners, considering that the subject-property is not a part of Private Forest, since the Forest department, after demarcation, has come to the conclusion that the same is not a part of Private Forest.
13. On the other hand, Mrs. Norma Alvares, learned counsel appearing on behalf of Goa Foundation objected to the grant of relief to the petitioners. She submitted that once the lands have been identified as meeting the criteria of âForestsâ by the Committees set up under the order of the Apex Court, no development can take place on such lands without clearance under the FCA. According to Mrs. Alvares, no special orders are required from the Apex Court to protect the lands identified as forest by the two Expert Committees appointed for that purpose since they are already protected by interim order dated 12.12.1996 passed by the Apex Court in the case of âT. N. Godavarmanâ (supra). She submitted that the petitioners can use their lands for the purpose which they want only after obtaining permission under the FCA or an order from the Apex Court permitting the same. She pointed out that as per the report of Karapurkar Committee development of land in the lower parts of the land bearing P.T. Sheets number mentioned therein would be permissible since those areas are stated to be non-forest. She, however, submitted that the said developed area will have to be first separated from the natural forest portion by carrying out ground survey. According to her, by order dated 02.07.2003 passed in Writ Petition no. 286 of 2003, this Court had directed the same thing i.e. to demarcate the non-forest areas from the forest area if the same had not been done based on Sawant and Karapurkar Committee reports. Learned Counsel submitted that the Court presumed that the exercise of identification had already been carried out as forest officers were part of the said two Expert Committees and the reports contain explicit details of quantum of area identified as forest in various blocks of survey numbers. According to her, however, contrary to the above High Court directions, the State Government decided to re-identify the survey numbers already identified as forest by Sawant and Karapurkar Committees and then to declare many of them as non-forest. She submitted that such exercise is contrary to the directions of this Court and further the same issue is squarely before the Apex Court. She therefore, submitted that no diversion of lands in the survey numbers identified as forest in Sawant and Karapurkar Committee reports can be permitted. She submitted that all the lands involved in the present Writ Petitions are stated to be non-forest in the demarcation report submitted by the State Government and therefore, the ground demarcation exercise needs to be carried out with respect to the P. T. Sheet numbers mentioned in the Writ Petitions. Copies of the orders in the said Writ Petitions were placed before us for perusal.
14. In so far as the earlier orders passed by this Court in other similar matters referred to by the petitioners, the learned Counsel submitted that Goa Foundation was not aware of the said cases. She submitted that this Court in Writ Petition No. 398/2008 had taken serious cognizance of the conclusion of the Forest Department that areas identified earlier as forest were now being declared as non-forest and by order dated 30/07/2008 had asked for an explanation from the Forest Department. Learned Counsel further submitted that this Court had directed that the petition be placed along with Writ Petition No. 286/2003. She stated that in spite of the above, the Writ Petition No. 398/2008 was disposed of independently of Writ Petition No. 286/2003. Learned Counsel has produced the copy of the order dated 30/07/2008 passed in Writ Petition No. 398/2008 along with written submissions filed by Goa Foundation, in the present Petitions. According to the learned Counsel, part of P. T. Sheet number 57 was already demarcated as forest by the State Government and in Writ Petitions No. 141/2009, 562/2009 and 614/2009, it is possible that the areas sought to be developed were clearly shown in the petitions to be in the lower portion of the P. T. Sheet Nos. and hence development was permitted. She submitted that this Court had on no occasion, except perhaps inadvertently, permitted any development of plot identified as forest in the said Sawant and Karapurkar Committee reports. She therefore, submitted that the petitions cannot be allowed unless required NOC under the FCA is obtained by them.
15. Mr. Nadkarni, learned Advocate general, submitted that the plots sought to be developed are small and petitioners want to build residential houses. He pointed out that there are residential houses in the surrounding areas. He invited our attention to the extract of report of the SLEC, at page 70 of the paper book in Writ Petition No. 555/2010 which says that developed area from P. T. Sheets No. 10, 77, 102 and other P. T. Sheets number can be separated from the natural forest by carrying out detailed ground survey. Our attention was then drawn to the extract of the report of field survey carried out which is at page 77 in the said Writ Petition No. 555/2009, wherein entire P. T. Sheets No. 77 and 102 have been shown as non-forest areas. According to learned Advocate General, the Petitions can be allowed subject to inspection and ground survey of the plots to be carried out by responsible Official of the Forest Department.
16. We have carefully gone through the petitions, affidavits and documents on record and have considered the submissions made by learned counsel for the parties.
17. Indisputably, if the land comes within the area identified by the SLEC as âForestâ, no development can take place in such land without permission from MoEF under the FCA. However, there is also no dispute that as per the report of Karapurkar Committee, insofar as land under P. T. sheets No. 10, 77 and 102 of the City of Mapusa, is concerned, only upper slopes of the dongar consist of natural vegetation while the lower parts are already developed. The SLEC has stated that developed area can be separated from the natural forest by carrying out detailed ground survey.
18. Insofar as the land in Writ Petition No. 555/2010, is concerned, there is already a residential house bearing Municipal number 207/4, an outhouse bearing Municipal No. 208/4, a toilet and a well. The petitioner had, on 17/6/2006, applied to the respondent no. 2 for conversion of land under Section 32(1) of the Code and the respondent No. 2 had issued a Certificate dated 27/10/2006 stating that in terms of Government order dated 20/02/2006 and circular dated 09/10/2006, the said property is exempted from provisions of Section 32(1) of the Code. In order to construct a residential bungalow, the Petitioner applied for construction licence to the Mapusa Municipal Council and the said application along with plans were forwarded to the North Goa Planning and Development Authority, which by order dated 07/03/2007 and corrigendum dated 23/03/2007 approved the plans. After that, the Mapusa Municipal council issued construction licence dated 23/11/2007 which was renewed on 02/12/2008 and which was to expire on 22/05/2009. The petitioner, thereafter, again applied for renewal of licence, when the petitioner was informed to obtain NOC from respondent no. 3 and when he applied for the same to respondent no. 3, he was informed that the said P. T. Sheet No. 77 of Mapusa City has been identified as Private Forest by SLEC due to which permission for development cannot be granted. In the land which is subject-matter of Writ Petition No. 774/2011 also there is a house existing therein. Now, as per the report of field survey, entire P. T. Sheets No. 77 is non-forest area. In the affidavit in reply filed on behalf of the respondent No. 3, in Writ Petition No. 555/2009, it has been stated that in the ground verification carried out by the Government, P. T. Sheet No. 77 is found to be non-forest. The land which is subject matter of Writ Petition No. 382/2010 lies in settlement (S1) Zone, in the existing Regional Plan of Goa. As per the report of field survey, the entire P. T. Sheet No. 102 of city of Mapusa is non-forest area. In the affidavit in reply filed on behalf of the respondent no. 3, it has been stated that as per the survey and demarcation carried out by the Department, it is found that the entire area falling in Chalta No. 54 of P. T. Sheet 102 admeasuring 1645 square metres is not meeting the criteria adopted by SLEC for identification of Private Forests and hence the same is not demarcated as Private Forest. In paragraph 3 of the affidavit in reply, filed on behalf of respondent no. 3, in Writ Petition No. 807/2009, it is specifically stated that as per the survey and demarcation carried out by the Department, it has been found that the entire area falling in Chaltas No. 7 and 9 of P. T. Sheet No. 10, situated in Cunchelim, Bardez Taluka is non-forest. It has been specifically stated that as the said demarcation report has been called in question in Writ Petition No. 673/2008, the Department has not issued the NOC and that NOC can be issued with the leave of the Court. Lastly, In Writ Petition No. 774/2011, the petitioner has produced a copy of letter dated 09/06/2010, by which the Dy. Conservator of Forests has informed the petitioner that during the survey of the area under P.T. Sheet No. 10 of Mapusa City of Bardez Taluka, it was found that the area does not meet the criteria of Private Forest as laid down.
19. Previously, in Writ Petitions No. 227/2008, 398/2008, 126/2009, 141/2009, 562/2009 and 614/2009, on the basis of conclusion arrived at by Forest Department, upon demarcation being carried out, that the subject-property is not a part of private forest, this Court has held that the authorities of the Government are bound to decide the permission sought on behalf of the petitioners, considering that the property is not a part of Private Forest. In the present petitions also the Forest Department has, upon field survey, concluded that the plots of the petitioners do not meet the criteria adopted by SLEC for identification of private Forest.
20. Considering the facts and circumstances discussed above, since the plots sought to be developed are small in size and since the petitioners intend to build their residential houses, and in view of the result of the field survey conducted by the Forest department, we were inclined to allow the petitions, subject, however, to the result of the inspection and ground survey to be conducted by the Forest department.
21. On 02.04.2013, after hearing the learned Counsel for the parties finally, this Court had reserved the matter for judgment to be pronounced today and had directed that a responsible official be appointed by the Principal Conservator of Forests to verify whether areas which are sought to be developed and which are the subject matter of the present Writ Petitions are part of the forest area. Reports, in duplicate, in sealed cover, were ordered to be filed.
22. Accordingly, the Dy. Conservator of Forest, North Goa Division, Ponda and Sub-Divisional Forest Officer, Mapusa, were appointed by the Principal Chief Conservator of Forest and they conducted the inspection and ground survey as ordered. The report have been filed in each case. From the said reports, it is seen that all the lands which are subject matter of the present petitions do not form part of the forest area. The land which is subject matter of the Writ Petition No. 382 of 2010 is found to be adjoining the present dilapidated residential premises of the petitioner on its northern flank and it is bounded on the west by the public tar road, on the south by the residential house, on the east and north by forest like vegetation not conforming to the criteria of private forest. As per the report, the land from the public tar road (western boundary) up to 25 metres towards east, is plain in nature, beyond which it suddenly rises to hilly terrain having the forest like vegetation. On surveying the said vegetation, it was found to be admeasuring 2.5 hectares as per GPS readings. The photographs have been taken and annexed to the report. In so far as the land which is subject matter of Writ Petition No. 555 of 2010 is concerned, it was found that the same is not part of the forest area and that there is an old house and two other supporting structures in it and that it is bounded on the east by public tar road, on the south by residential house and work shop and on the north by residential house and on the west by agricultural fields and residential house. Photographs were taken and are annexed to the report. With regard to Writ Petition No. 807 of 2010, report says that the land is not part of forest area and it is bounded on the south by a public tar road, on the north by horticultural plot, on the east by residential house and on the west by horticultural plot. Photographs have been annexed to the report. As per the report in Writ Petition No. 774 of 2011, the land which is subject matter of this petition is also not part of forest area and there is a residential house in the same and the plot is bounded on the east and south by tar road, on the north by residential houses, on west by horticultural plot. Photographs have been annexed to the report.
23. In view of the above, it is clear that the plots which are subject matter of the above Writ Petitions do not form part of forest area. Therefore, the petitioners are bound to succeed.
24. In the result, Communication dated 03/06/2010 issued by the respondent no. 3 in Writ Petition No.555/2010 and similar communication, in other petitions, if any, are quashed and set aside. Respondents shall decide the petitioners' applications for conversion of their properties described in the petitions, considering that the same are not parts of Private Forest, and in accordance with law. Rule is made absolute in terms as above, with no order as to costs.
The petitions stand disposed of accordingly.