T.N.
Godavarman Thirumulpad Vs. Union of India & Ors [2006] Insc 196 (10 April 2006)
Cji
Y.K. Sabharwal, Arijit Pasayat & S.H. Kapadia
IA
NO.989, 1221 & 1311 IN IA NOS.857-858 IN WRIT PETITION (C) NO.202 OF 1995
[WITH IA NOS.997-998, 1128, 1187, 1282-1284,
1295, 1296, 1305, 1320-1321, 1335, 1376-1377, 1388 IN WP (C) NO. 202 OF 1995
& SLP (C) NO.22531 OF 2003] Y.K. Sabharwal, CJI.
The
question for consideration in these matters is whether the land measuring about
15 hectares leased by State of Chhattisgarh to M/s. Maruti Clean Coal and Power
Limited (for short 'Maruti') for setting up of coal washery is a part of forest
land or not. This question has been raised by one Deepak Agarwal by filing I.A.
858 of 2003 claiming to be a public spirited person and journalist by
profession and concerned about the adverse affect on environment of the area as
a result of the grant of lease of forest land for non forest activities in
violation of law. The applicant claims that undue favour and patronage has been
extended to Maruti for establishment of coal washery plant in respect of land
which is a forest land by wrongly showing in various revenue records that the
land is part of the village Nawagaon Khurd whereas actually the land forms part
of village Ratija.
The
Parliament enacted Forest (Conservation) Act, 1980 (for short
the 'FC Act') with a view to prevent large scale forest depletion and to
protect the forest resources.
The
object was to check further deforestation which ultimately results in
ecological imbalance. The Act has made provisions for the conservation of
forests and for matters connected therewith. In T.N. Godavarman Thirumulkpad v.
Union of India & Ors. [ (1997) 2 SCC
267], this Court held that the FC Act must apply to all forests irrespective of
the nature of ownership or classification thereof. Noticing earlier decisions
in cases of Ambica Quarry Works v. State of Gujarat & Ors. [(1987) 1 SCC
213] and Rural Litigation and Entitlement Kendra v. State of U.P. [1989 Supp
(1) SCC 504] and dispelling doubts, if any, it was held in Godavarman that the
word 'forest' must be understood according to its dictionary meaning. This
description covers all statutorily recognised forests, whether designated as
reserved, protected or otherwise for the purpose of Section 2(i) of the FC Act.
The term 'forest land' would also include any area recorded as forest in the
Government record irrespective of the ownership.
The
court issued wide ranging directions. Each State Government was directed to
constitute an Expert Committee to identify areas which are 'forests',
irrespective of whether they are so notified, recognized or classified under
any law and irrespective of the ownership of the land of such forests; identify
areas which were earlier forests but stand degraded, denuded or cleared; and
identify areas covered by plantation trees belonging to the Government and
those belonging to private persons.
The
Government of Madhya Pradesh, of which Chhattisgarh was a part at the relevant
time, issued a circular dated 13th January, 1997 in compliance with the directions issued in T.N. Godavarman's case for
the purpose of identification of the forest. The circular stated that according
to the dictionary meaning, the term 'forest' means such large areas where
agriculture is not done and which is covered by trees and shrubs. It further
stated that, taking a practical approach, in view of the judgment as well as
the dictionary meaning of the term 'forest', area measuring 10 hectares or more
having an average number of 200 trees per hectare ought to be treated as
forest.
According
to the applicant, on application of aforesaid circular, the land in question
would be forest land and it is also so under the Government record and as per
the dictionary meaning of the term 'forest' as well.
To
examine the question whether land is part of forest or not, this Court by order
dated 7th May, 2003 referred the application to Central
Empowered Committee (CEC) for its report.
The
CEC submitted its report dated 6th October, 2003
(registered as IA 989 and hereinafter referred to as 'first report'). In this
report, CEC concluded that the land allotted to Maruti is a forest land and,
therefore, prior approval of the Central Government under the FC Act was
necessary before allowing setting up of coal washery plant by Maruti.
Admittedly, such approval had not been obtained.
The
State of Chhattisgarh and Maruti vehemently disputed that
the land is part of forest. Their stand is that the land was allotted after it
was clearly established that it was not a forest land.
The
first report shows that hearing before CEC took place on four different dates
i.e. 3rd June, 2003, 9th July, 2003, 25th July, 2003 and 14th August, 2003. On first two dates, one K.K.Srivastava appeared for
the applicant Deepak Agarwal. This fact has relevance on the issue of bonafides
of Deepak Agarwal in approaching this court in public interest, an aspect to
which we would advert to little later.
Detailed
objections were filed to the first report of CEC. On directions of this Court,
an affidavit dated 13th August, 2004 was filed by T.S.Chatwal, Secretary
(Forest) Government of Chhattisgarh, inter alia, stating that land is not
recorded in the forest land records at Katghora Division either as protected or
as reserved forest; has not been subject matter of any blanket notification
covering 'protected forest' for the then Central Provinces and Barar issued
under Section 29 of the Indian Forest Act, 1927; does not form part of the
un-demarcated protected forest in village Ratija etc. It was further stated
that as per available traversing records for the year 1893-1894, the land in
question was traversed by the Survey of India and was named as Nawagaon Khurd
surrounded by village Ratija, Chainpur and Sirkikhurd and its area was measured
to be 50.25 acre. The settlement operation carried in 1929-1930 did not cover
the land in question and as such no survey number was assigned to this piece of
land, which remained unsurveyed till June 2002.
The
State Government was directed to trace the relevant notifications and other
notifications issued by the forest department in the month of October 1949 and
place the same before the CEC. Maruti claimed that notification of October 1949
had considerable bearing on the question of the land being forest or not. Maruti
was also permitted to place the same before CEC. Other parties were also
permitted to file before CEC additional documents. CEC was directed to further
examine the matter, hear the parties and file a report with its
recommendations.
In
compliance of the aforenoted directions, a report dated 4th November, 2004 (Registered as I.A. 1221 and
hereinafter referred to as the 'second report') has been filed by CEC. The CEC,
in the second report has noted detailed facts, submissions of SECL, State
Government, meetings with the officers of State of Madhya Pradesh and Chhattisgarh. On detailed
examination of voluminous record including notifications and maps, the old
settlement records of the concerned villages, the CEC observed that there was
no authentic record available to show that the area of Nawagaon Khurd merged
with that of village Ratija during the settlement of 1928-1929.
CEC
further observed that no revenue records are reported to have been
maintained/available or filed before it regarding the settlement of the area of
Nawagaon Khurd or its merger with village Ratija. In the draft notification
prepared by the Orange Unit, Bilaspur, this area has not been shown as part of
Ratija village but as Nawapara (Masahati village) and that in the consolidated
map the allocation of land allotted to Maruti falls within Nawagaon Khurd and
outside the boundary of village Ratija. The CEC accordingly expressed the view
that:
-
the area of
village Nawagaon Khurd was not merged and made a part of village Ratija or any
other adjoining villages during the settlement of 1928-29;
-
no settlement
records for the area of Nawagaon Khurd were prepared during 1928-29;
-
since new
settlement has not taken place after 1928-29, the settlement maps prepared
during 1928-29 are the relevant and the correct maps which have to be relied
upon; and
-
the location of
the land allotted to M/s Maruti falls within the area of Nawagaon Khurd and not
within the village Ratija.
In
respect of Notifications of 1949, CEC said that:
-
none of the
notifications particularly the notification dated 17.10.1949 pertain to
Bilaspur district; and
-
the notification
No.3228-2845 dated 17.10.1949 or 3228-3283/2845 dated 17.10.1949 referred to in
the draft orange area proposal of 2002 either do not exist or pertain to other
districts.
The
CEC in the second report concluded that the land allotted to Maruti is not a
forest land.
The
second report has also noticed the submission of Maruti that application of
Deepak Agarwal is not in public interest and that he has been set up to serve
the business interest of M/s Aryan Coal Private Limited (for short, 'Aryan')
who will be adversely affected financially after the establishment of coal
washeries by Maruti due to increased competition and consequent reduction in
prices. It was also pointed out that during hearing before CEC, Deepak Agarwal
was represented by K.K.Srivastava who had represented Aryan in revenue
proceedings before Tehsildar and also that he was a witness in a large number
of sale deeds executed by shareholders of Aryan for purchase of land in
Rajgarh.
The
second report led to filing of various applications and also a letter dated
27th March, 2005 by Secretary, Bilaspur Environment Society filing therewith a
report of Regional Remote Sensing Services Centre, Nagpur dated 28th February,
2005 with a view to challenge the conclusion contained in the second report
about land being not forest land and seeking to rely upon settlement record.
By an
order dated 1st April,
2005, CEC was directed
to again examine the entire matter and report in the light of the documents
brought to the notice of the Court and placed on record. The Forest Survey of
India, Regional Remote Sensing Agency and the South-East Coal Field Limited
were directed to render such assistance as may be required for the purpose of
preparation of report by CEC.
After
further examination, report dated 14th April, 2005 has been filed by CEC (hereinafter
referred to as 'third report').
The
third report, inter alia, shows that a request was made by CEC to Forest Survey
of India to carry out photo interpretation of the satellite imagery of the area
by comparing imageries of different period and to give views about vegetation,
forest cover, number of trees etc.
Simultaneously,
the National Remote Sensing Agency was also requested to give their comments on
the satellite imagery of the area in and around the land area allotted to
Maruti along with significant changes in the forest cover during different
periods, reliability and accuracy of the interpretation and methodology for
identifying the areas allotted etc. The site was also visited between 12- 13th
April, 2005 during which the coordinates of the area allotted to Maruti were
verified by a technical expert of FSI using the Differential Global Positioning
System (GPS) and the ground truth verification of the area was carried out
along with Regional Director, Forest Survey of India, Nagpur. The report also
notices that during the visit, inspection of other areas was also carried out
and discussions were held with the Principal Chief, Conservator of Forests,
Chhattishgarh Forest Department, Conservator of Forests, Bilaspur Circle,
District Collector Korba, Divisional Forest Officer, Officers of SECL, members
of the Bilaspur Environment Society, K.K.Srivastava, representative of the
applicant, representatives of the forest trade unions of the area, public
representatives, representatives of Maruti and other interested parties.
Detailed reference has been made in the third report to the interpretations of
experts including that of the Forest Survey of India. It also doubts the
bonafides of the applicant. The report further notes number of cases that were
filed in respect of allotment of land to Maruti as under:
-
Mr.B.L.Wadera Hon'ble
High Court of Chhattisgarh at Bilaspur;
-
Mr.Sanjay
Srivastava (relation of Mr.K.K.Srivastava) Hon'ble High Court of Chattisgarh
at Bilaspur;
-
Mr.Deepak
Agarwal present application before the Hon'ble Supreme Court
-
Mr.Surendra Sahu
petition before the Hon'ble High Court of Chhattisgarh at Bilaspur;
-
SECL present
application for intervention before this Hon'ble Court;
-
SECL suit in Katghora Civil Court;
-
SECL Writ
Petition against CEC's report before this Hon'ble Court (dismissed as withdrawn);
-
Samyuki Kendriya
Shramik Sangathan application for intervention before this Hon'ble Court;
-
Koyla Mazdoor
Sabha application for intervention before this Hon'ble Court;
-
Rashtriya
Colliery Mazdoor Congress application for intervention before this Hon'ble Court;
-
Koyla Shramik
Sangh application for intervention before this Hon'ble Court;
-
Bhartiya Koyla
Khadan Mazdoor Sangh application for intervention before this Hon'ble Court; and
-
Mr.B.L.Wadera SLP
against the Hon'ble High Court's order.
Regarding
nexus between K.K.Srivastava and Aryan and what type of society the Bilaspur
Environmental Society is, the report states that:
"After
considering the number of cases, filed on this issue, the documents filed by
M/s Maruti regarding alleged nexus between Mr.K.K.Srivastava with M/s Aryan,
reduction in the washed coal prices agreed to by M/s Aryan after an offer at a
cheaper rate was made by M/s Maruti to Gujarat Electricity Board, annual
account of Bilaspur Environment Society. SECL's own use of revenue forest land
on a large scale, prima-facie there appears to be some merit in the contention
of M/s Maruti that the plethora of cases in various Courts have been filed on
behalf of its competitor M/s Aryan with a view to prevent him from establishing
the coal washery, and not in public interest.
The
claim made by Mr.K.K.Srivastava that he is a public spirited person involved in
protection of environment and forests and that he is not getting financial
support from anybody but is spending from his own resources and contribution
from his friends and relations, is difficult to accept on its face value;
The
accounts of Bilaspur Environment Society show that it does not have a bank
account and all receipts and expenditure are in cash." The third report
reiterates the conclusions and the recommendations made in the second report
that the land allotment of Maruti is not of forest land.
At
this stage, we may note that some dispute as to the title of the land in
question between State Government and Maruti on one hand and M/s South East
Collieries Limited (SECL) on the other is pending in a civil court. In these
proceedings, we are not concerned about the title of the land that may have to
be examined and decided by the civil court. All pleas, factual and legal, as
permissible in law, would be open to the parties to be agitated before the
civil court. The only question for our consideration in these proceedings is as
to the nature of the land, namely, it is forest land or not.
However,
before we consider the aforesaid question, first the bonafides of the applicant
need to be determined.
In
opposition to the application filed by Deepak Agarwal, it has been urged that
the label of public interest given by the applicant in the present litigation,
is clearly and demonstrably a camouflage since the real person behind this
application allegedly filed in public interest is a competitor of Maruti
operating in the area and having a monopoly.
Some
unions have also tried to jump into the fray by filing applications seeking
impleadment in these proceedings so as to contend that the allotment is of a
forest land. We see no reason to allow the impleadment of parties in these
proceedings. Be that as it may, we have to decide in the light of facts
aforenoted, whether the land leased to Maruti is forest land or not. But before
we examine the question of the nature of the land being forest or not, it is
necessary to consider the bonafides of Deepak Agarwal who has approached this
Court in public interest. Howsoever genuine a cause brought before a court by a
public interest litigant may be, the court has to decline its examination at
the behest of a person who, in fact, is not a public interest litigant and
whose bonafides and credentials are in doubt. In a given exceptional case where
bonafides of a public interest litigant are in doubt, the court may still
examine the issue having regard to the serious nature of the public cause and
likely public injury by appointing an Amicus Curiae to assist the court but
under no circumstances with the assistance of a doubtful public interest
litigant.
No
trust can be placed by court on a mala fide applicant in public interest
litigation. These are basic issues which are required to be satisfied by every
public interest litigation.
It was
sought to be contended on behalf of Deepak Agarwal that the CEC had no
authority to examine his bonafides and, thus, exceeded its jurisdiction by
stating in its report that his bonafides are in doubt. Some insinuations were
sought to be made against CEC and learned Amicus Curiae. We strongly deprecate
this approach of the applicant. The CEC has been appointed and so also learned
Amicus Curiae to assist this Court in determining issues relating to depletion
of forests and preservation and conservation of forests in the country.
Many
forest survey reports recognise that various orders by this Court have helped
in arresting fast depletion of forests. Assuming in a given case an error is
committed by the Committee in its report, while pointing it out, it is
necessary for the applicant to use temperate language in the pleadings and not
the one used by the applicant.
Since,
during hearing, neither the insinuations nor the language was supported and
rather regret was expressed, we would say no more on this aspect. It, however,
deserves to be clarified that it is incorrect to assume that CEC exceeded its
jurisdiction in pointing out facts which are relevant to determine the
bonafides of the applicant.
In
fact, having regard to nature of duties assigned and responsibility placed upon
CEC, it is the duty of CEC to point out facts relevant to determine bonafides
of any applicant. It is always necessary to determine real motive behind a
public interest litigation.
It has
been repeatedly held by this Court that none has a right to approach the Court
as a public interest litigant and that Court must be careful to see that member
of the public, who approaches the Court in public interest, is acting bona fide
and not for any personal gain or private profit or political motivation or
other oblique considerations. {See S.P.Gupta v. Union of India & Anr. [1981 Supp. SCC 87]}.
For
the last few years, inflow of public interest litigation has increased
manifold. A considerable judicial time is spent in dealing with such cases. A
person acting bona fide alone can approach the court in public interest.
Such a
remedy is not open to an unscrupulous person who acts, in fact, for someone
else. The liberal rule of locus standi exercised in favour of bona fide public
interest litigants has immensely helped the cause of justice. Such litigants
have been instrumental in drawing attention of this Court and High Courts in
matters of utmost importance and in securing orders and directions for many
under-privileged such as, pavement dwellers, bonded labour, prisoners'
conditions, children, sexual harassment of girls and women, cases of communal
riots, innocent killings, torture, long custody in prison without trial or in
the matters of environment, illegal stone quarries, illegal mining, pollution
of air and water, clean fuel, hazardous and polluting industries or
preservation of forest as in the Godavarman's case.
While
this Court has laid down a chain of notable decisions with all emphasis at
their command about the importance and significance of this newly developed
doctrine of PIL, it has also hastened to sound a red alert and a note of severe
warning that courts should not allow its process to be abused by a mere
busybody or a meddlesome interloper or wayfarer or officious intervener without
any interest or concern except for personal gain or private profit or other
oblique consideration {See Janata Dal v. H.S. Chowdhary & Ors. [1992) 4 SCC
305]} It seems that this caution has not had the desired effect on the
applicant like the present one.
In a
recent decision in Dattaraj Nathuji Thaware v. State of Maharashtra & Ors.
[(2005) 1 SCC 590] (Arijit Pasayat and S.H. Kapadia, JJ) taking note of earlier
decisions, it was said that:
"It
is depressing to note that on account of such trumpery proceedings initiated
before the Courts, innumerable days are wasted, which time otherwise could have
been spent for the disposal of cases of the genuine litigants. Though we spare
no efforts in fostering and developing the laudable concept of PIL and
extending our long arm of sympathy to the poor, the ignorant, the oppressed and
the needy whose fundamental rights are infringed and violated and whose
grievances go unnoticed, un-represented and unheard; yet we cannot avoid but
express our opinion that while genuine litigants with legitimate grievances
relating to civil matters involving properties worth hundreds of millions of
rupees and criminal cases in which persons sentenced to death facing the
gallows under untold agony and persons sentenced to life imprisonment and kept
in incarceration for long years, persons suffering from undue delay in service
matters - government or private, persons awaiting the disposal of cases wherein
huge amounts of public revenue or unauthorized collection of tax amounts are
locked up, detenus expecting their release from the detention orders etc. etc.
are all standing in a long serpentine queue for years with the fond hope of
getting into the Courts and having their grievances redressed, the busybodies,
meddlesome interlopers, wayfarers or officious interveners having absolutely no
public interest except for personal gain or private profit either of themselves
or as a proxy of others or for any other extraneous motivation or for glare of
publicity break the queue muffling their faces by wearing the mask of public
interest litigation and get into the Courts by filing vexatious and frivolous
petitions and thus criminally waste the valuable time of the Courts and as a
result of which the queue standing outside the doors of the Courts never moves,
which piquant situation creates frustration in the minds of the genuine
litigants and resultantly they lose faith in the administration of our judicial
system.
Public
interest litigation is a weapon which has to be used with great care and
circumspection and the judiciary has to be extremely careful to see that behind
the beautiful veil of public interest, an ugly private malice, vested interest
and/or publicity-seeking is not lurking. It is to be used as an effective
weapon in the armory of law for delivering social justice to citizens. The
attractive brand name of public interest litigation should not be used for
suspicious products of mischief. It should be aimed at redressal of genuine
public wrong or public injury and not be publicity-oriented or founded on
personal vendetta. As indicated above, Court must be careful to see that a body
of persons or member of the public, who approaches the court is acting bona
fide and not for personal gain or private motive or political motivation or
other oblique considerations. The Court must not allow its process to be abused
for oblique considerations by masked phantoms who monitor at times from behind.
Some persons with vested interest indulge in the pastime of meddling with
judicial process either by force of habit or from improper motives, and try to
bargain for a good deal as well as to enrich themselves. Often they are
actuated by a desire to win notoriety or cheap popularity. The petitions of
such busybodies deserve to be thrown out by rejection at the threshold, and in
appropriate cases with exemplary costs." It was further said :
"Courts
must do justice by promotion of good faith, and prevent law from crafty
invasions. Courts must maintain the social balance by interfering where
necessary for the sake of justice and refuse to interfere where it is against
the social interest and public good. (See
State of Maharashtra v. Prabhu, and Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr. No
litigant has a right to unlimited draught on the Court time and public money in
order to get his affairs settled in the manner as he wishes. Easy access to
justice should not be misused as a licence to file misconceived and frivolous
petitions. (See Dr. B.K. Subbarao v. Mr. K. Parasaran. Today people rush to
Courts to file cases in profusion under this attractive name of public
interest.
They
must inspire confidence in Courts and among the public." Now, reverting to
the present case, it seems that lakhs of rupees have been spent by the
applicant and/or on his behalf to prosecute the present litigation. On our
direction, the applicant filed his income tax return which shows that he has
hardly any means to incur huge amounts which have been spent to pursue this
litigation.
Further,
when the matter was referred by this court to CEC for a report on first date of
hearing, K.K. Srivastava represented the applicant. Learned senior counsel for
the applicant fairly and candidly admitted that sometimes along with the
advocate-on-record, K.K.Srivastava has been coming to instruct him. There is
ample material on record that on numerous occasions, K.K.Srivastava represented
Aryan before number of authorities.
There
is also ample material to show that K.K. Srivastava has been collecting
material to prove that the land in question is forest land. He is a person in
contact with Aryan. Regarding his financial status, Deepak Agarwal has filed an
affidavit dated 24th
August, 2005 along
with which certain documents have also been filed.
In the
affidavit, it has been claimed by him that he is fighting the case with the
help of like-minded people, well-wishers and friends. As to his own financial
resources, it is stated that in the income tax return, financial help taken
from friends, social workers and like- minded people has not been shown as it
does not fall in the category of income. He has filed affidavits of some people
from whom it is claimed that donation collectively of the sum of Rs.86,500/-
was taken. As per the affidavit of Deepak Agarwal, a sum of Rs.55,000/- has
been incurred by Bilaspur Environment Society for obtaining satellite imagery
report. Further, a sum of Rs.60,000/- has been spent by him on traveling and
lodging expenses in connection with litigation and Rs.50,000/- in connection
with documentation and other court expenses. A revised income tax return filed
on 31st March, 2005 has been placed on record.
According to it, the total income from business is shown as Rs.51,560/- and
from other sources at Rs.1,02,947/- total being Rs.1,54,507/-. It has not been
disclosed as to when the original Income Tax return was filed. The amount of
tax shown to have been deducted at source is Rs.5,147/-.
The
date of birth of Deepak Agarwal as per income tax return is 22nd February, 1973. However, in the affidavit dated 24th August, 2005, the age mentioned is 32 years
whereas in the affidavit dated 19th July, 2005,
it is stated as 35 years. Further, a perusal of the affidavits of the persons
from whom donation is said to have been taken shows that alleged donors of cash
amounts are mainly employees of SECL and contractors working for Aryan. It has
not been explained as to what was the reason for filing a revised income tax
return. A submission was sought to be made at hearing, without any plea having
been raised in the application or the affidavit, that Deepak Agarwal came to
this Court as a lone crusader bona fide but later on some help was rendered by
others who donated the amount as claimed and also by Bilaspur Environment
Society. It may be noted that Maruti has been pleading since beginning that
Deepak Agarwal has been set up by their competitor and there was, in fact, a
link between the competitors of Maruti and Deepak Agarwal in the form of K.K.
Srivastava. Deepak Agarwal, in fact, denied that there was any link between him
and K.K. Srivastava who appeared on his behalf before CEC and Aryan and took
the stand that nothing has been submitted to prove that it was the same K.K.
Srivastava who appeared on behalf of the Aryan. Regarding K.K. Srivastava being
attesting witness to the sale deeds, it was pleaded that K.K. Srivastava was in
a business of sale and purchase of land and in course of his business dealing,
he might have come across such sale deeds. The same plea was taken in respect
of proceedings before Tehsildar. Regarding the Bilaspur Environment Society, which
purportedly assisted Deepak Agarwal, as admitted by him and allegedly paid
Rs.55,000/- for obtaining satellite images, it may be noted that firstly, one
fails to understand as to what prevented the said society from approaching this
court. Secondly, a close perusal of the record throws open many questions about
the credibility of the society which spent Rs.55,000/- in cash for obtaining
satellite images and also obtained donations.
On
perusal of record, we have no doubt that the application filed by Deepak
Agarwal is far from bona fide.
He has
been set up by others. We strongly deprecate the filing of an entirely
misconceived and mala fide application in the garb of public interest
litigation by Deepak Agarwal. He is nothing but a name lender.
Despite
our conclusion as aforesaid, we have in-depth examined the three reports of
CEC. The CEC in its second report has explained in detail the grounds and the
reasons for reversal of its findings as contained in the first report. The
first report had only considered the letter dated 17th October, 2002 of DFO, Khatghora including no objection from
grampanchayat, orange area proposals of 1997-98, joint inspection report of 18th October, 2002 with enumeration lists, report of
Deepak Srivastava & Mr.Negi of MoEF, Members and SECL maps.
The
second report, however, considers in detail several notifications of the order
of October 1999, old settlement maps and the guidelines of State Government in
respect of orange area proposals. It shows that non-forest land can also be
included in the said proposals and various other documents and for reaching the
conclusion that the land in question is not a forest land, in fact, the said
land was of Nawagaon Khurd and not village Ratija and that this area was not
formally merged and made part of village Ratija in the settlement (Bandobast)
carried out during 1928-29. We have examined various old record from 1893-94
onwards including the old maps and find no reason to take a view different than
the one taken by CEC in its second report. The conclusions reached and the
recommendations made in the second report deserve to be accepted.
The
third report is based on the satellite imageries and supports the conclusions
reached by CEC in its second report. In respect of the third report, one of the
submissions made on behalf of Deepak Agarwal was that reliance by CEC on LISS
III (23.5 metre resolution) is not warranted because the satellite images
provided by RRSSC has satellite data of LISS III with Panchromatic Data
Technology and LISS IV (5.8 metre resolution). It was argued that State Forest
Report, 2003 of Forest Survey of India noticed that 5.8 metre resolution
recorded various images as small as 0.1 hectare (within given area, in this
case, the area of interest of 18.12 hectares) whereas 23.5 meter resolution is
not capable of recording anything less than 1 hectare forest cover within that
area. In nutshell, the contention is that LISS III has limited technology and,
therefore, the report based on LISS III is not reliable. The submission is that
LISS IV should have been used for arriving at the correct position.
In
short, Deepak Agarwal has submitted that the report of NRSA was not accurate
because it has opted for a technology with 23.5 metre spatial resolution and
output generation in the scale of 1:50000 considered to be inferior with
respect to smaller portion of land.
According
to Deepak Agarwal, NRSA should have opted for a better technology available
today under which the spatial resolution is available at 5.8 meter and also output
generation in the scale of 1:15000. According to Deepak Agarwal, CEC should not
have accepted the report of NRSA based on the above parameters of 23.5 metre
(spatial resolution) and of output generation in the scale of 1: 50000.
In
order to decide the above contentions, it is necessary to understand the
following concepts:
-
GIS
(GEOGRAPHICAL INFORMATIOIN SYSTEM) GIS is an organized collection of computer
hardware, software, geographic data designed to capture all forms of
geographically referenced information (See Volusia.org). In short, it is a
computer system capable of holding and using data describing places on the
earth's surface. ERDAS IMAGINE 8.6 is a computer tool under GIS. It is referred
to in the report of Forest Survey of India (FSI) dated 14.4.2005 annexed to the
third report of CEC.
ERDAS
IMAGINE 8.6 is an advanced software product used for image processing, to
uncover features like boundary and area of a given plot of land (face). Once
uncovered, the geographical information is integrated with attributes (spatial
and non-spatial) and stored in an information system to be used for analysis.
Images
can be taken from satellites or from planes flying over an area of interest
(AOI). Under ERDAS IMAGINE 8.6, the images are comprised of pixels (picture
elements) which are contained in the image. These pixels are scanned by the
computer which gives the boundary and the area. It also scans the colours.
Different surfaces reflect light differently. Colour images are used to
identify various ground objects like forests, man-made surfaces, roads etc. For
example, healthy crops contain infra-red light whereas forests reflect
different colours of the spectrum, making the spectrum information an important
component of geographical information analysis. This advancement of technology
is due to combination of telecommunication and computer engineering (See:
webopedia.com).
The
above discussion is important because Deepak Agarwal has relied upon photo
printing analysis done by him with the help of CAD (Computer Aided Designing).
The
issue which is required to be considered is whether ERDAS IMAGINE 8.6 used by
NRSA is better than CAD which is a programme used by Deepak Agarwal. We have
indicated broadly the advanced features of the software, viz., ERDAS IMAGINE
8.6. On the other hand, CAD, is also a software used by engineers to view a
design from an angle with the push of a button and to zoom in and zoom out for
close-ups and long distance views. It helps the computer to tract designs. CAD
software generally examines the boundaries and that too in a design. In the
present case, we are concerned with the area covered by the forests. Therefore,
the technology adopted by NRSA based on ERDAS IMAGINE 8.6 is more reliable than
CAD.
Therefore,
GIS links spatial data with geographical information about a particular feature
on the map (See: volusia.org).
-
GPS (Global
Positioning System) GPS is a satellite based positioning system operated by USA. It consists of satellites. It is a data collection
tool for GIS. Basically, the signals from the satellites in GPS are received by
GPS receivers on the earth. Therefore, different stations are earmarked on the
earth covering a particular area. It is the matching of the satellite with the
receiver which plays an important role. Certain discrepancies in the matching
are got over by differential GPS (See: esri.com).
-
IRS LISS III It
stands for Linear Imaging Self Scanning Sensor which is a multi-spectral
camera. LISS-III products comprise of path/row products, georeferenced products
etc. (See: earth.esa.int). It helps to track areas and boundaries. Combination
of LISS III with ERDAS-imagine is more reliable than photo print analysis by
CAD. It is better to depend on interpretation of IRS LISS III Digital Data by
EDRAS Imagine than by CAD.
As
stated above, the main challenge to the NRSA report is that proper parameters
have not been taken into account and although better technology was available
the same was not deliberately resorted to. The contention is that CEC should
have opted for the latest technology.
We do
not find merit in this argument. The technology of 2001, 2002 and 2003 is not
to be discarded. The later technology gives more spatial information but that
does not mean that the information given by the earlier technology is
inaccurate. The latest technology under GIS can locate even a pin on the earth.
However,
we are not concerned with such a tiny object in this case. Be that as it may,
we may also point out that even in the State of Forest Report 2003, FSI has
based its figures of forest cover by using Digital Image Processing (DIP) by
using the scale of interpretation of 1:50000.
Further,
in that report, FSI has relied upon the introduction of a new methodology based
on remote sensing to estimate the trees covered below 1 hectare which cannot be
discerned by using LISS-III data. Under the new method, a canopy of all forests
that can be delineated from satellite data (Sensor LISS-III) was termed as
forest cover. Even under this new technology adopted by FSI the spatial
resolution of 23.5 mtr. of LISS-III has been taken into account and by using
DIP technique, forest cover was mapped even in 2003 at a scale of 1: 50000.
Therefore, consistently, FSI has taken the above parameters into account.
Hence, there is no merit in the contentions raised by Deepak Agarwal saying
that CEC has been randomly selecting queries and data.
In
short, NRSA's report submitted through FSI is reliable and we see no reason to
reject it. On the basis of the said report, it can be said that AOI (area of
interest) does not qualify so as to be included in the category of Deemed Forest i.e. a compact block of 10 hectares having 200 trees per
hectare.
Before
concluding, it may also be noted that except Deepak Agarwal, other parties
before us have not questioned the conclusions in the second and the third
report of CEC that the land in question is not a forest land. Besides, Maruti
being the allottee, the State of Chhattisgarh, the Ministry of Environment and Forest, Forest Survey of India and even SECL
have not questioned the conclusion of CEC that the land in question is not a
forest land.
In
view of the aforesaid discussion, even on facts we find no substance in the
plea that the land allotted to Maruti is forest land. Accordingly, we accept
the recommendations of CEC as contained in the second and third report. As
already noted, the dispute in respect of the title is not a matter in issue
before us. Thus, we have not examined this issue.
In
conclusion, we dismiss the applications filed by Deepak Agarwal with costs. The
applicant has abused the process of law and deserves to be sternly dealt with.
The
enormous judicial time has been wasted which could have been used for deciding
other cases. It has also resulted in CEC and others incurring huge expenses and
their wastage of time as well. In this view, we quantify costs at Rs.1,00,000/-
payable by the applicant Deepak Agarwal to CEC. The cost, if not deposited with
CEC within four weeks, shall be executable as a decree. The amount of cost
shall be utilized for preservation of forests in State of Chhattisgarh. The Special Leave Petition and
other applications are also disposed of in terms of this judgment.
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