(Pamidighantam Sri Narasimha and Aravind Kumar, JJ.)
Civil Appeal No. 411 of 2021, decided on February 19, 2024
Jamshid Kersi Dalal ________________________________ Appellant;
v.
Union of India and Others ________________________ Respondent(s).
With
Civil Appeal No. 6545 of 2021
Civil Appeal No. 411 of 2021 and Civil Appeal No. 6545 of 2021
The Order of the court was delivered by
Order
1. These appeals arise from the order of the National Green Tribunal (‘Tribunal’ hereinafter)1 in an Original Application filed by respondent no. 8, Bombay Environment Action Group, for direction to the respondents to demolish certain illegal structures constructed in forest-like areas in the Mahabaleshwar and Panchgani regions in Maharashtra on the ground that these constructions have been raised without following the mandatory procedure prescribed under the Forest (Conservation) Act, 1980.
2. The appellants are owners and in possession of agricultural lands in these areas which form part of the area covered under the impugned order. They were not made parties before the Tribunal. They are aggrieved by the exparte directions of the Tribunal to remove ‘encroachments’ on the ground that the constructions are in violation of Forest (Conservation) Act, 1980. They are in appeal before us.
3. A brief history of the case is as follows. An Original Application against certain development activities in Vansadrushya in the Mahabaleshwar-Panchgani region in Maharashtra was filed in 2016. On 08.09.2016, the Tribunal passed an interim order restraining non-forest activities like felling of trees, construction work or any new development. Following the definition of forest as declared in T. N. Godavarman Thirumulkpad v. Union of India,2 the Tribunal by its order dated 13.03.2019 directed the constitution of a Joint Committee with the Chief Conservator of Forest, Kolhapur and the Divisional Commissioner, Pune to compile information about the extent of area that falls under the expression ‘forest’.3 The Court also permitted the parties to present their material before this Committee.
4. In a subsequent order dated 03.12.2019, the Tribunal also noted the Ecologically Sensitive Zones in the entire Panchgani and Mahabaleshwar areas. In view of the sensitivity of this area, only action to be undertaken was to identify the structures and encroachments with reference to the maps and enforce the law. The respondents were directed to hold meetings with the district officials to identify areas where environmental laws were violated and chalk out an action plan.
5. However, as these directions had not been complied with, the Tribunal directed the Mahabaleshwar Hill Station Municipal Council, the Panchgani Hill Station Municipal Council, the District Collector, Satara and the Chief Conservator of Forest, Kolhapur to file a report of compliance. Pursuant to this order, the Chief Conservator of Forests, Kolhapur filed an affidavit dated 26.10.2020, which is reproduced in the impugned order.
6. The substance of the affidavit is that the Joint Committee constituted by the Tribunal did not find sufficient time to invite objections and suggestions from individual stakeholders before submitting its report. It was also stated that there is an overlap between government notified gaothans (village sites) and forest-like areas and hence there is a need to revisit the survey carried out by the Land Record Department. The affidavit proposed a schedule for further action that provides the public an opportunity to file objections and suggestions and an opportunity of hearing.
7. The Tribunal felt that the forest-like areas have already been identified and as there are encroachments over these areas, no further procedure remains to be followed except for verification, which could be completed in 3 months. As the relevant data is available, the Tribunal rejected the proposed time schedule and directed the Collector, Satara and the Forest Department to remove encroachments that are in violation of the Forest (Conservation) Act, 1980 and file an action taken report. The relevant portions of the order are reproduced:
“6. From the above, it is clear that there are forest alike areas identified as such and there are encroachments in violation of law. Order of this Tribunal dated 13.3.2019 was passed one and half year back with directions for remedial action. It was observed that the High-powered Committee under the MRTP Act could not take any decision in violation of the Supreme Court judgement. In respect of such identified encroachments, no further procedure remains to be followed, except the verification as proposed for which three months’ time should be enough. The schedule proposed assumes that nothing has been done so far and action is to start only now. Since all relevant data is available, the timeline needs to be shortened. The authorities should not think of unending exercise in violation of declared law of the land. Plan has to be now for action as per law promptly.
7. Accordingly, let the verification process be completed positively by 31.01.2021, to the extent such work is still pending. Thereafter, in respect of such area as is found to be encroached in violation of the Forest (Conservation) Act, 1980, the Collector, Satara and the Forest Department may straightaway proceed to remove the encroachments for which no approval of MoEF&CC will be required, even if such area is part of the ESZ. Area being in ESZ does not mean that law is not to be enforced there.”
8. Pursuant to the directions of the Tribunal, against which the appellants are aggrieved, the Office of the Tahsildar issued a notification dated 20.11.2020 for all concerned to be present for verification of the area. The appellant is said to have made a representation before the authorities on 03.12.2020 that he has been in ownership and possession of the land since 1967, and that the same is agricultural land and not forest land or forest-like land. Despite his objection, the officials conducted the survey of the land on 12.12.2020 without providing any details to the appellant or an opportunity to furnish documents or explanation. The appellants have hence filed the present appeal.
9. The Chief Conservator’s affidavit states that the affected parties have not been provided an opportunity of hearing and that the survey needs to be revisited due to overlap of village sites with forest-like land. The Tribunal directions to straightaway proceed with demolition of encroachments due to the long pendency of the matter has caused multiple problems. The immediate consequence is that affected parties, like the appellants herein, who were also not parties before the Tribunal entirely lost an opportunity to present their perspective on characterisation of the land as forest land.
10. The Tribunal has not been following the judicial culture of giving an opportunity of hearing to the parties who may be affected by its directions. This is also noticed in a recent decision of this Court in Singrauli Super Thermal Power Station v. Ashwani Kumar Dubey.4 In Veena Gupta v. Central Pollution Control Board,5 we held:
“4. The National Green Tribunal’s recurrent engagement in unilateral decision making, provisioning ex post facto review hearing and routinely dismissing it has regrettably become a prevailing norm. In its zealous quest for justice, the Tribunal must tread carefully to avoid the oversight of propriety. The practice of ex parte orders and the imposition of damages amounting to crores of rupees, have proven to be a counterproductive force in the broader mission of environmental safeguarding.
5. Significantly, these orders have consistently faced stays from this Court, resulting in the unravelling of the commendable efforts put forth by the learned Members, lawyers, and other stakeholders. It is imperative for the Tribunal to infuse a renewed sense of procedural integrity, ensuring that its actions resonate with a harmonious balance between justice and due process. Only then can it reclaim its standing as a beacon of environmental protection, where well-intentioned endeavors are not simply washed away.”
11. For the reasons and conclusions as indicated hereinabove, we allow the Civil Appeals and set aside the judgment of the Tribunal in O.A. No. 108 of 2018 dated 27.10.2020 and remand the case to the Tribunal to issue fresh notice to all the affected parties, hear them, and dispose of the case.
12. We make it clear that we have not expressed any opinion on the merits of the matter and the Tribunal shall exercise its jurisdiction to enforce statutory provisions and legal principles to ensure compliance of laws and directions.
13. There shall be no order as to costs.
14. Pending applications, if any, shall stand disposed of.
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1 In OA 108/2018, order dated 27.10.2020.
2 (1997) 2 SCC 267.
3 As defined in Godavarman (ibid).
4 (2023) 8 SCC 35.
5 2024 INSC 89.
