2024 INSC 59 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

WRIT PETITION (CIVIL) NO.202 OF 1995

IN RE:

T.N. GODAVARMAN THIRUMULPAD …PETITIONER(S)

VERSUS

UNION OF INDIA AND OTHERS …RESPONDENT(S)

WITH

CIVIL APPEAL NO. 12234-35 of 2018

GOA FOUNDATION …APPELLANT

VERSUS

STATE OF GOA AND OTHERS ...RESPONDENTS

JUDGEMENT

Aravind Kumar, J.

1. The present civil appeals arise out of common order dated

30.07.2014 passed by the National Green Tribunal (Western Zone)

Signature Not Verified

Digitally signed by
Bench, Pune1 in Application No.14 (THC) of 2013 (WZ) and
Rajni Mukhi
Date: 2024.01.24
17:14:37 IST
Reason:

1
Hereinafter to be read as “NGT”.

1
Application No.16 (THC) of 2013 (WZ) filed by the appellant,

whereunder the NGT has disposed of both the applications on the

ground that the issue of determination of criteria for the identification

of ‘forest’ forms part of the proceedings in TN Godavarman Case2

which is presently seized by this Court and hence, granted liberty to

the appellant to approach this Court for the remedy. Therefore, the

appellant has filed the present civil appeals under Section 22 of the

National Green Tribunal Act, 2010,3 seeking the modification of such

criteria.

2. We have heard the arguments of Mr. Sanjay Parikh, Senior

Advocate for the Appellant assisted by Ms. Srishti Agnihotri, Ld.

Advocate, Mr. Nalin Kohli, Ld. Advocate for State of Goa assisted

by Mr. Sanjay Upadhyay, Ld. Advocate, Ms. Suhashini Sen, Ld.

Advocate for Union of India and Mr. Mukul Rohatgi, Ld. Senior

Advocate for impleading applicant, perused the case-papers.

FACTUAL MATRIX IN BRIEF

3. The challenge in the present appeals revolves around the

criteria issued by the Respondent(s) i.e., the State of Goa and Others

2
In Re: TN Godavarman Thirumulpad (Writ Petition No.202 of 1995).
3
Hereinafter to be referred as “NGT Act, 2010”.

2
for the identification of ‘forests’ in the State, hence, it is important to

trace the history of adoption of these criteria which are under

challenge before us. Accordingly, in the subsequent paragraphs we

have traced the brief history of these criteria.

4. Pursuant to the Judgement of the High Court of Bombay in

Shivanand Salgaocar v. Tree Officer & Ors.4 declaring the

application of the Forest (Conservation) Act, 19805 to all lands,

whether government or privately owned, the Conservator of Forests,

State of Goa, in 1991 set out the guidelines for identifying ‘forest’ in

private properties. Vide letter dated 04.10.1991 the attention of the

Ministry of Environment and Forest (MoEF) was sought on the said

guidelines with a request to issue suitable guidelines to implement

the FCA 1980 on the basis of the aforesaid decision of the Bombay

High Court. The guidelines were as follows:

“Criteria for application of Forest (Conservation) Act, 1980 to

private forests.
i) Extent of area: Long term viability of a piece of forest land is an
important consideration. Obviously, very small patches of forest
cannot be viable in the long run from conservation Point of view.
Therefore, a minimum extent of area will have to be determined
to which the Forest (Cons.) Act, 1980 would be applicable in
private and revenue areas not recorded as 'forest'. I propose that
this area should be at least 5 hectares. It is not worthy that the

4
Writ Petition No.162 of 1987.
5
Hereinafter to be read as “FCA 1980”.

3
 Forest (Cons.) Act, 1980 and guidelines made there under do not
prescribe any such minimum area for application of the Act.
ii) Proximity and/or contiguity: The proximity of the private forests
concerned to a larger forest area and / or its contiguity with the
later area should also be an important aspect to consider while
examining such areas.
iii) Composition of crop: It is important to prescribe minimum
standards in terms of crop composition in order to distinguish
forest species from horticultural species. This is particularly
relevant in State like Goa where occurrence of large number of
cashew, jackfruit and coconut trees in private areas is a common
feature. We may perhaps prescribe that at least 75 of the crop
should comprise of forest species.
iv) Crown density: It would not be meaningful to apply the Forest
(Cons.) Act, 1980 to degraded and open areas under private
ownership. Therefore, a minimum crown density of 40% may be
adopted as a standard assessing the applicability of the Act in
such private and revenue areas which are not recorded as
'forests' in the land records.” [Emphasis supplied]

5. By an order dated 12.12.1996 in T.N. Godavarman

Thirumulpad v. Union of India6, this Court explained that the word

“forest” for the purpose of Section 2(i) of the FCA 1980 must be

understood according to its dictionary meaning, and would cover “all

statutorily recognised forests, whether designated as reserved,

protected or otherwise”. This Court further explained that the term

“forest land”, occurring in Section 2 would include not only “forest”

as understood in the dictionary sense, but also “any area recorded as

forest in the Government record irrespective of the ownership”.

6
(1997) 2 SCC 267.

4
6. Further, this Court vide order dated 12.12.1996 in TN

Godavarman Case (supra) directed all the States to constitute an expert

committee for the following tasks:

“(i) Identify areas which are “forests”, irrespective of whether

they are so notified, recognised or classified under any law, and
irrespective of the ownership of the land of such forest;

(ii) identify areas which were earlier forests but stand degraded,
denuded or cleared; and

(iii) identify areas covered by plantation trees belonging to the

Government and those belonging to private persons.”

7. The Government of Goa, to implement the said order,

constituted the Sawant Committee in 19977 which identified a total of

46.89 sq. kms as private forest. Thereafter the Karapurkar Committee

was constituted in 20008 to identify the remaining areas. Since the

Karapurkar Committee suggested a revisit to exclude some of the

forest areas already identified by the Sawant Committee, the present

appellant herein, Goa Foundation, filed Writ Petition (Civil) No.181 of

20019 before this 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. Both the

Committees for identification of an area as private forest followed the

7
Under the Chairmanship of Shri SM Sawant on 24.01.1997.
8
Under the Chairmanship of Dr. H. Karapurkar on 04.09.2000.
9
Goa foundation v. State Government of Goa.

5
same criteria as was formulated by the Forest Department of Goa in

1991. However, the task of both the Committees was incomplete as

some areas were left unidentified. This Court vide order dated

10.02.2006 disposed of the W.P. (C) No.181 of 2001 in following

terms:-

“……bulk of private forests in the State of Goa still remains to be

identified and the same is being sacrificed in collusion with
developers and vested interest persons and no action has been
taken by the State Government to set up a fresh committee that
will bring a finality to the order dated 12.12.1996 passed in WP
Civil No. 202/1995. In substance, the prayer in the application is
for appointment of another committee or for consideration of the
issue by the Central Empowered Committee to identify the private
forests. These issues, we are afraid, do not arise out of the writ
petition which has become infructuous on Karapurkar Committee
and Sawant Committee having submitted their reports. In case,
the petitioner has any further relief to seek, it may, in accordance
with law, file a fresh substantive petition before an appropriate
forum which would be considered on its own merits”.

8. As a result of the order dated 10.02.2006, the present appellant

i.e., Goa Foundation, filed Writ Petition No.334 of 2006 for directions

to the State Government of Goa to complete the process of

identification of forest and to identify the degraded forest lands in

accordance with this Court’s order dated 12.12.1996.

9. The State Government appointed two new Committees10 to

identify the remaining areas of private forests in North and South Goa

10
The North Goa District Committee headed by K.G. Sharma and the South Goa District
Committee headed by P.V. Sawant on 03.02.2010.

6
districts that had not been identified by the previous Committee(s). The

criteria used by these Committees to identify private forest were same

as adopted earlier.

10. Further, the Appellant filed another Writ Petition being W.P.

No.495 of 2010 before the High Court of Bombay, seeking the

quashing of criteria pertaining to the canopy density which should not

be less than 0.4. It was the Appellant’s case that the non-consideration

of forest areas having canopy density of 0.1-0.4 (10-40%) was contrary

to the criteria allegedly accepted by this Court in the order dated

28.03.200811. Hence, appellant claimed that category of open forest or

degraded forest having canopy density of 10-40% were totally omitted

from the identification process. Subsequently the petition was amended

and the criteria of minimum 5 (five) Hectare was also challenged in

view of the affidavit filed by the Forest Survey of India12 wherein the

forest cover was defined as being “all lands more than 1 ha in area,

with tree canopy density of more than 10% irrespective of ownership

and legal status”. Meanwhile, by a notification dated 27.11.2012, the

11
TN Godavarman Thirumulpad v. Union of India & Ors. (2008) 7 SCC 126.
12
Hereinafter to be read as “FSI”

7
State of Goa again constituted two Committees13 to identify the balance

areas of private forests that had not been covered by the previous

Committees. The criteria for identification of forest lands were same as

followed earlier.

11. The Bombay High Court vide order dated 17.10.2013

transferred both the Writ Petitions14 to the NGT which were

renumbered as Application No.14 (THC) of 201315 and Application

No.16 (THC) of 201316. The NGT by the impugned order has set aside

both the applications and hence the appellant is before this Court.

12. It is pertinent to mention that this Court vide order dated

04.02.2015, converted the Civil Appeal No.37942 of 2014 filed by Goa

Foundation in IA No. 3845 of 2015 in WP No. 202 of 1995 and passed

the following directions:

“In the meanwhile, we direct that the respondents herein will not
issue any ‘No Objection Certificate’ for the conversion of any plot
that has natural vegetation with tree canopy density in excess of
0.1 and an area above one hectare.”

13
The North Goa Forest Division Committee headed by V.T. Thomas and the South Goa
Forest Division Committee headed by Francisco Araujo.
14
W.P. No. 495 of 2010 & W.P. No. 334 of 2006.
15
Writ Petition No. 495 of 2010.
16
Writ Petition No. 334 of 2006.

8
13. It is pertinent to note that the present appeal originally came to

be filed on 19.11.2014 as Civil Appeal No.37942 of 2014 assailing the

final judgment dated 30.07.2014 passed by NGT. Thereafter, this Court

vide Order dated 04.02.2015 converted the Civil Appeal No.37942 of

2014 filed by present appellant to I.A. No.3845 of 2015 in the

proceedings before this Court in W.P. No.202 of 1995 (T.N.

Godavarman case). Vide order dated 04.02.2015, this Court issued a

direction to State of Goa to not issue any ‘No Objection Certificate’ for

conversion of any plot that has natural vegetation with tree canopy

density in excess of 0.1 and an area above one hectare. Subsequent to

Order dated 04.02.2015 of this Court, Respondent No.1 (i.e., State of

Goa) filed I.A. No.40261 of 2017 for modification and clarification of

Order dated 04.02.2015 of this Court. Thereafter, on 25.10.2018, this

Court vide order dated 25.10.2018 passed in W.P. No.202 of 1995

directed to restore I.A. No.3485 filed by present appellant to its original

status of a civil appeal and further it directed that I.A. No.40261 of 2017

filed by Respondent No.1 will be heard along with the said civil appeal.

Accordingly, I.A. No.3845 in W.P. No.202 of 1995 came to be re-

numbered as Civil Appeal No.12234-12235 of 2018, which are the

present civil appeals for adjudication before us. In the present civil

9
appeals, I.A. No.116495 of 2022, came to be filed by Confederation of

Real Estate Developer’s Association of India (hereinafter referred to as

“CREDAI”), seeking permission to be impleaded as party respondent,

along with the said I.A., CREDAI has also filed I.A. No.116496 of

2022, wherein the impleading party sought vacation of Order dated

04.02.2015. Accordingly, the respondents in the present civil appeals

along with the impleading party (i.e., CREDAI) are seeking to

challenge the reliefs prayed for by the present appellant and have also

sought vacation of the ex-parte interim order dated 04.02.2015 passed

by this Court in W.P. No.202 of 1995.

DISCUSSION PERTAINING TO IMPUGNED JUDGEMENT

DATED 30.07.2014 PASSED BY NGT:

14. It was the contention of the appellant before the NGT that the

subject applications raised the issue of identification and demarcation

of private forests in the State of Goa as a result of this Court’s order

dated 12.12.1996 in TN Godavarman Case (supra) as per which the

State Governments were required to identify and demarcate the forest

area and degraded forest areas.

10
15. The appellant stated before NGT that there was no basis for

criteria No.(iii) in the guidelines of 1991, which related to canopy

density, as there are several forest areas, which are presently degraded

and having canopy density of less than 0.4 but which were originally

dense or medium dense forests and which must, accordingly, be

identified as forests. It was also submitted that such lands cannot be

unilaterally diverted to non-forestry purpose except with the prior

approval under the FCA 1980. It was submitted that if criteria No.(iii)

was accepted there would be no compliance with the directions given

in terms of reference No.2 of the order dated 12.12.1996.

16. To back its contentions, the appellant relied upon this Court’s

order dated 28.03.200817 wherein this court while deciding the matters

relating to Net Present Value (NPV) and compensatory afforestation

costs accepted the report submitted by the Central Empowered

Committee (CEC) titled “Supplementary Report of CEC in IA No.826

& IA No.566 regarding calculation of Net Present Value (NPV)

payable on Loss of Forest Lands of Different Types in non-forest

purpose”. This Court had accepted the CEC’s recommendations on

certain economic values, proposed for Calculating the NPV and costs

17 Order in Writ Petition No.202 of 1995

11
for Compensatory Afforestation (CA), involved in diversion of dense,

moderate dense and open forest.

17. The appellant further relied upon the FSI Report, according to

which, forest vegetation in the country falls specifically in three

mutually inclusive canopy density classes:

i. Very Dense Forest (with crown density) 0.7 to 1.

ii. Moderate dense Forest (with crown density) 0.4 to 0.7.

iii. Open forest (with crown density) 0.1 to 0.4.

18. It was, therefore, argued by the appellant before NGT that for

the purpose of implementation of the FCA 1980, all the authorities

including this Court, have clearly accepted that the areas of natural

vegetation, having tree canopy density varying anywhere between 0.1

to 0.4, are to be considered as forest for the purpose of applicability of

FCA 1980 and thereafter determination of NPV and CA. This aspect of

enlarging the scope of criteria No.3 will be an essential step, as the

report of the FSI, 2009 showed that the category of open forest (crown

density of 0.1 to 0.4) is almost the same in extent, as both the categories

of very dense forest and moderate dense forests are put together.

12
19. With regard to criteria No.(ii), which requires Minimum 5 Ha,

the appellant had argued that the said criteria is defeating the purpose

and mandate of FCA 1980 and the order of this Court dated 12.12.1996.

20. It was submitted before the tribunal that the FSI in its affidavit

dated 23rd March 2011, submitted that it defines ‘forest cover’ as being

all lands, more than 1 ha area, with a tree canopy density of more than

10% irrespective of ownership and legal status. Such lands may not

necessarily be recorded as forest areas. Therefore, the appellant sought

the following reliefs in the Application No.14 (THC) of 2013:

“For an order quashing the criteria nos. 2 & 3 of the Forest

guidelines/criteria and the order of the Respondent No. 1, if any,
approving the same”.

21. In the application No.16 (THC) of 2013, the appellant submitted

that in TN Godavarman’s case (supra), this Court had issued various

directions, vide its order dated 12.12.1996. It was the grievance of the

appellant that the Sawant and Karapurakar Committees had not

identified the areas, which were earlier forests but now stand degraded,

denuded or cleared as per the directions of this Court. The appellant

submitted that these Committees have not dealt with this issue or even

formulated suitable criteria or framework for notifying such degraded

13
forest areas and therefore, the appellant prayed for following relief(s)

in Application No.16 (THC) of 2013:

● For an order directing the Govt of Goa to complete the

process of identification of private forest in the State, within a
time bound period in terms of Apex Court’s order dated
12.12.1996 and report compliance;
● For an order directing the Govt. of Goa to complete the
process of notifying the degraded forest within the State i.e., the
areas which were earlier forest but stand degraded, denuded or
cleared, in terms of Apex Court’s order dated 12.12.1996 and
report compliance.

22. The Forest Department, Government of Goa, Respondent No.4,

submitted that in the case of Shivananda Salgaonkar (supra), the High

Court of Bombay, Goa Bench, in the judgement delivered on 27 th

November 1990 held that “since the term ‘forest’ is not defined in the

Forest (Conservation) Act, the term has to be taken as per the

dictionary meaning”. Pursuant to this judgement, the forest department

framed guidelines in 1991, for identifying the forest in private

properties. These guidelines were submitted to the Ministry of

Environment and Forest (MoEF), Government of India on 04.10.1991

for their response.

23. The Forest Department further submitted that pursuant to the

orders of this Court, dated 12.12.1996, the State Govt. had appointed

14
Sawant Committee for the purpose of identification of forest lands in

the State of Goa on 24th January 1997, which submitted its report on 8th

December 1999. The Committee was given task to identify areas which

are ‘forest’ irrespective of whether they are so notified, recognized or

classified under any law and irrespective of ownership of land of such

forest and to identify areas which were earlier forests but stand

degraded, denuded or cleared.

24. Since no cut off was given for the tasks, Committee decided

1980 year in which the Forest Act was promulgated, to be the

benchmark for Government forest lands. Subsequently, another Expert

Committee was appointed on 4th September, 2000 for further

identification of private forest, which also submitted its report on

16.02.2002.

25. The respondent further submitted that the Sawant Committee

has already obtained data on clearings and diversion made on

Government forest lands for various purposes from 1980 and identified

that total 13.078 Ha of forest Land has been diverted for various

purposes. It was claimed that the Expert Committees have already

considered all aspects of the Apex Court direction dated 12.12.1996.

15
26. The respondent further submitted that the State had already

defined the forest identification criteria based on the scientific basis

considering various aspects as a policy decision and also, these two

Expert Committees are functioning effectively and the work of

identification of private forest area, is being carried out expeditiously

and considering the above, the respondent had opposed both the

applications.

27. The MoEF, Respondent No.2 stated that pursuant to the

judgement in Lafarge Umiam Mining Pvt. Ltd. Vs. Union of India

and ors.18, it was directed to prepare a comprehensive policy for

inspection, verification and monitoring and overall procedure related to

grant of Forest Clearance (FC) and Identification of Forest in

consolidation with States and the process will likely take some more

time and only after finalization of such comprehensive policy, the

Ministry will be in position to put forth its stand as regards criteria,

which is to be applied for identification of forests and further pleaded

for sufficient time to place the stand of Ministry before the Tribunal.

18
(2011) 7 SCALE 242

16
28. The Forest Survey of India, Respondent No.3 submitted before

the NGT that FSI has mandated to conduct survey and assessment of

the Forest resources in the country. It was submitted that India’s States

of Forest Report is published by the Respondent No.3 and in the said

report forest cover is defined being of lands more than 1 Ha in area,

with tree canopy density of more than 10% irrespective of ownership

and legal status. Such lands may not necessarily be recorded as forest

areas. It also includes the orchards, bamboo and palm.

29. Issues framed by NGT:

▪ Whether the Tribunal has jurisdiction to

consider and alter or newly fix the forest
identification criteria?
▪ Whether the forest identification criteria set out
by the Govt of Goa, needs modification, as prayed in
the applications?
▪ Whether the Tribunal can issue directions for
expediting forest identification and demarcation
process, as prayed in the application?
▪ Whether the applications are barred by
limitation?

17
FINDINGS OF NGT IN THE IMPUGNED JUDGEMENT:

30. Having referred to the earlier pronouncements of this Court the

Tribunal observed in paragraph 38 of the impugned order that all the

States have formed Expert Committees for identification of forest and

have submitted progress reports to this Court by evolving their own

methodology for forest identification criteria. As such it was of the

view that it would not be in the domain of the tribunal to render opinion

with regard to the method of identification to be adopted for fixing the

criteria for determining private forest to be adopted by State of Goa and

answered point No.1 formulated by it in the negative.

31. In so far as the timeline to be fixed for expediting forest

identification and its demarcation process is concerned, the tribunal

took note of the fact that out of 256 square kilometres forest area, the

work has been completed in respect of 67 square kilometres by the two

Committees and as such called upon the Chief Secretary of Goa to call

for a meeting of all the concerned and work out time bound action plan

for early completion of forest identification and its demarcation within

next six (6) weeks and submit a time bound program to the tribunal

within 8 weeks thereof. All other reliefs sought for in the application of

18
the appellant came to be denied. Hence the appellant has approached

this Court by way of the present civil appeal.

CONTENTIONS ON BEHALF OF THE APPELLANT IN THE

PRESENT APPEAL:

32. It is the contention of learned counsel appearing for the

appellant that the tribunal erred in not passing an order on merits on the

premise that the issue is seisin before this Court. It is further contended

that WP No.495 of 2010 was filed challenging the criteria of minimum

40 per cent canopy density for identification as forest land. In the teeth

of the order of this Court dated 28.03.2008 passed in batch of IA’s filed

in WP No.202 of 1995 (T.N. Godavarman) in which the petition was

amended and the minimum 5 (five) hectares area was also challenged

in view of FSI’s affidavit which stated that minimum 1 (one) hectare

of area and minimum 10 per cent canopy or the criteria adopted by FSI

for identifying the forest cover in India and this writ petition was

transferred to the tribunal. Hence, it is contended 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

19
protection of environment and also a step for implementing the order

dated 12.12.1996 passed by this Court as it has remained unmet by the

State of Goa.

33. By referring to the three interim orders, namely 17.12.2006 and

26.03.2012 passed by the High Court and the order dated 04.02.2015

passed by this Court, it is contended that authorities have been

injuncted from issuing conversion Sanad for any private properties with

tree cover in excess of 0.1 all having natural vegetation and tree canopy

density in excess of 0.1 and area above 1 (one) hectare which would

clearly indicate that in order to protect the environment this relief was

essential and so as to prevent any further degradation of the forest by

its destruction.

34. It is also contended that to meet the mandate of the order dated

12.12.1996 the identification and demarcation of private forest area on

the basis of 1 (one) hectare and 10 percent (0.1) canopy density is an

exercise which must be carried out for meeting the said criteria which

would be over and above the identification of forest area done on the

criteria that is 75 per cent forest species, 40 per cent canopy density and

5 (five) hectare of area, as the objective is to ensure restoration (and not

20
diversion) of such forest area to their original status. Hence, contending

if such identification is done on the basis of this criteria, it would sub-

serve the interest of conservation and protection of environment and in

a given case the Central/State Government can grant ‘prior permission’

within the provisions of FCA 1980 if it considers that such diversion is

necessary in public interest and it would be in consonance with the

principle of sustainable development. In this background the objection

of the State of Goa to the criteria of the FSI to identify the open forest

that is 0.1 canopy density and the area above 1 (one) hectare would not

stand to reason. Elaborating the submissions, he would contend that the

ISFR has identified 552 square kilometres on the basis of criteria fixed

by it and if the said criteria is not adopted it would reduce the open

forest area in the State of Goa to an extent of 552 square kilometre.

Hence, he prays for the petition being allowed.

35. As mentioned in the submissions of the Appellant in the

preceding paragraphs, to summarise, the Appellant herein prays 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.

21
CONTENTIONS ON BEHALF OF RESPONDENT NO.(S)
1,4,5,6,7 & 8 ALONG WITH CONTENTIONS OF THE
IMPLEADING PARTY I.E., CREDAI.

36. The respondents have sought the modification and vacation of

the above-mentioned order in the IA No.40261 of 2017 filed by them,

and further have made submissions and raised various grounds for the

dismissal of the present Civil Appeal Nos.12234-12235 of 2018. The

respondents have urged that the Stay Order dated 04.02.2015 of this

Court, has continued to operate for over eight years, which is impacting

several developmental works in the State of Goa. In addition to this, by

way of their Counter Affidavit, and numerous submissions made during

the hearing of the present appeals, the Senior Counsel has raised several

grounds for the dismissal of the present appeals and for vacation of the

Order dated 04.02.2015.

37. Respondent No(s). 1,4,5,6,7 and 8, along with the impleading

party i.e., CREDAI, have sought the vacation of the ex parte interim

order dated 04.02.2015 passed by this Court in the present appeal, and

they have also opposed the grant of relief sought by the Appellant in its

appeal. In furtherance of this, the learned Senior Counsel for

Respondent No.(s) 1,4,5,6,7 and 8 along with the learned Senior

22
Counsel for the impleading party, i.e., CREDAI have raised various

grounds and made elaborate submissions for the dismissal of the present

appeals, which have been recorded by us in the subsequent paragraphs.

38. The respondent(s) contended that the criteria for identification

of forest has attained finality and cannot be challenged on the principles

of res judicata. It was submitted that the criteria for identification of

forest on private land was determined in 1991 pursuant to the

Judgement of the Bombay High Court dated 27.11.1990 in Shivanand

Salgaonkar case (supra).

39. It was further submitted that the criteria for identification of

forests, which forms the basis of the reports filed by the Sawant,

Karapurkar and Sharma Reports, were first proposed by the Forest

Department of the State of Goa, in 1991. 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 forest department to

conserve small patches of forest land, as is evident from the letter dated

04.10.1991, and from the Affidavit filed by the State of Goa before this

Court on 21.08.2012.

23
40. The counsel for the respondents contended that the aforesaid

criteria formulated in 1991 was adopted by the State of Goa (Sawant

and Karapurkar Committees) pursuant to the order dated 12.12.1996

passed by this Court in T.N. Godavarman (supra), however, despite

being aware of the same, the Appellant did not challenge it. The

respondents further contend that the State of Goa, on 08.12.1997 issued

a public notice, which delineated the following criteria for the purpose

of classifying “Forest”:

i. 75% of the tress composition should be forestry species.

ii. The area should be contiguous to the Govt. Forest and if in

isolation, the minimum area should be 5 ha.

iii. Canopy density should not be less than 0.4.

41. The learned counsel for the respondents contended that the

public notice dated 08.12.1997, has also not been challenged by the

present appellants Further, the Appellant had an opportunity to

challenge the same before this Court in Goa Foundation Case

(supra)19, wherein it had raised grievances about the Karapurkar

Committee report, however, it did not do so, and the said proceedings

19
Writ Petition No. 181 of 2001.
24
were thereafter disposed of as being infructuous on account of the filing

of the Karapurkar report, by an order dated 10.02.2006.

42. Further, the counsel for the respondents have contended that

Civil Appeal is ex facie barred by res judicata inasmuch as the very

party that has preferred the same had sought to revisit the criteria twice

before and failed. The respondents have pointed out to us that the

Appellant preferred a Writ Petition before the High Court of Bombay

at Goa disputing the criteria so adopted, and its application to a housing

project. In an appeal preferred against the same, this Court in Tata

Housing Development Corporation v. Goa Foundation (2003) 11

SCC 714 strongly disapproved any departure from such criteria and

adoption of a new criteria.

43. The learned counsel has submitted that this Court in Tata

Housing (supra), after examining the reports of the Sawant Committee,

recorded the genesis of the criteria, and also took note of its facets.

Further, the learned counsel has laid emphasis on paragraph 13 of the

judgement in Tata Housing (supra), wherein this Court disapproved

the approach of the High Court in accepting a new criterion, in what it

termed as giving a “complete go-by” to the existing criteria.

25
Accordingly, the counsel for the respondents contends that in sum and

substance the pre-existing criteria received the imprimatur of this Court

in Tata Housing (supra), hence, the principle of Res Judicata would

apply and the present challenge to the criteria for identification of Forest

deserves to be dismissed on this ground alone. The relevant paragraph

13 has been extracted below:

“13. From a bare perusal of the Third Interim Report, it would

appear that the three criteria laid down in the Second Interim
Report of the Sawant Committee have been given a complete go-
by and in relation to the appellants' plot altogether different
criteria have been adopted. The course adopted by the Committee
in taking into consideration different criteria while examining an
individual case of the appellants' plot was wholly unwarranted,
especially when the Committee in its Report has not assigned any
reason for making the deviation.”

44. The learned counsel for the respondent further contended that

another judgment i.e., Nisarga v. Asst. Conservator of Forests OA

No.19 (THC) of 2013, was concealed by the Appellant. The learned

counsel submitted that the Appellant herein, approached the NGT

arguing that the minimum canopy density to be adopted as a criterion

ought to be 0.1 (i.e. 10%). It was submitted that the basis of this

argument was identical to that advanced in this appeal, inasmuch as the

Indian State of Forests Report, 2009 (ISFR) was relied upon to suggest

that the said report had classified lands with canopy density between

26
10% to 40% as open forests. In other words, it was urged by the

Appellant that even such lands were forest nonetheless. The NGT

rejected this argument based on the judgment of this Court in Tata

Housing (supra). The learned Counsel emphasized on the point that,

the Appellant herein chose not to appeal the said judgment before this

Court, and has allowed the same to attain finality. The counsel for the

respondents submitted that Appellant cannot now be allowed to

reagitate the very same issue on the very same basis before this Court.

45. The counsel for the respondent accordingly submitted that,

criteria adopted by the State of Goa ought not to be interfered with; and

the order dated 04.02.2015 passed by this Court directing a restraint on

the grant of conversion sanads in the State of Goa ought to be vacated

since the criterion for the identification of forest in the State of Goa has

become final and binding, its variation having been rejected in Tata

Housing (Supra) and Nisarg (Supra) by this Court and the NGT

respectively.

46. The counsel for the respondent has submitted that the sheet

anchor of the instant appeal is the formula adopted by this Court for the

computation of NPV in T.N. Godavarman Thirumalpad v. Union of

27
India20, and in turn the reliance by this Court on the report of Ms.

Kanchan Chopra, which in turn relies on the Indian State of Forests

Report, 2008 (ISFR) issued by the FSI. It is submitted that ISFR has

classified canopy density into 3 kinds, namely, very dense, moderately

dense, and open. Furthermore, this Court while fixing the NPV rates

has fixed them per Hectare, basis which the Appellant contends that

even 1 (one) Ha of land can be a forest. It is submitted that the Appellant

sought to change the criteria for a private forest in Goa to a minimum

area of 1 (one) Ha, and also a minimum canopy density of 0.1 which

was the least denominator employed by the ISFR in classifying an open

forest for the purposes of fixing NPV rates. The counsel for the

respondents urged and emphasized that this argument of the Appellant

is misconceived as it fails to take into account that the private forest

criteria not only in Goa but throughout the country is distinct from that

for government lands. Importantly, government land of even 1 (one) Ha

can be a forest, and accordingly can attract the imposition of NPV.

Moreover, this Court in T.N. Godavarman Thirumalpad (87) v. Union

of India21 observed that the criteria for NPV must be worked out on

economic principles and hence it is submitted that this can have no

20
(2008) 7 SCC 126.
21
(2006) 1 SCC 1.
28
nexus with identification. Furthermore, the NPV imposition also

encompasses government forests which could even be of 1 (one)

Hectare. Hence, it is understandable that the NPV criteria is per Hectare

i.e., it conceives of NPV being imposed even for government forests of

1 (one) Ha.

47. The counsel for the respondent further contends that this Court

has never directed the adoption of NPV norms as those for identification

of private forests. To suggest that the NPV norms be today adopted as

the criteria for private forests would be nullifying the exercise

conducted by the State of Goa in terms of the express order of this Court

dated 12.12.96. Above all, the order of this Court, in directing each

State to constitute its own Expert Committee expressly accepted that

there can be no uniform criteria for such identification across the

country. Lastly, in this regard, the counsel for the respondents

contended that no State in the country has adopted the NPV norms for

classification of land as private forests, and if the Appellant’s plea is

accepted it would create dual legal regimes, namely, one in Goa and

one in rest of the country.

29
48. The respondents further contends that if the criteria are

implemented, this would also roughly mean that if there are 10 to 20

planted trees in an area of 10,000 sq. metres, it will be a ‘deemed forest’

and prior approval from the Central Government under the FC Act

would be required. The respondent also drew our attention to the case

of Re: Constitution of Park-Anand Arya v. Noida22 wherein the 3-

Judge bench of this Court had stated that if such criteria is agreed, then

most of Delhi would be forest.

49. The learned counsel on behalf of the respondent(s) submits that

there are enough safeguards in the State of Goa for protection of trees.

The Goa Daman and Diu Preservation of Trees Act, 1984 is strictly

enforced in this regard. The respondent further submits that the Ministry

of Environment, Forest & Climate Change Guidelines as well as the

Scheduled Tribe and Other Traditional Forest Dwellers (Recognition of

Forest Rights) Act, 2006 have been clear and unambiguous where it has

exempted the application of FCA 1980 on areas which are less than 1

(one) ha and where not more than 75 trees have to be cut vide letter

22
(2011) 1 SCC 744 Para 30.
30
dated 03.01.2005 of Ministry of Environment and Forest and also

Section 3(2) of the Forest Rights Act, 2006.

50. The learned counsel for the respondent(s) submits that the

parameters used by FSI is to map the forest cover and the tree cover in

India. This is distinguished from the Forest area and forest land which

has been dealt with by this court in the Godavarman case (supra) in

detail since 12.12.1996. The counsel drew our attention to the definition

of ‘Forest Cover’ given by the FSI based on the “Minimum Mappable

Area” available with FSI from Satellite Data. At present, the Minimum

Mappable Area available to FSI for forest cover assessment is 1 (one)

hectare since 2001 based on the resolution of satellite data. Prior to

2001, the Minimum Mappable Area for forest cover was 25 hectares

from India State of Forest Report 1989 to India State of Forest Report

1999 and the same was 400 ha in 1987. The India State of Forest Report,

2017 which clearly shows that the FSI is describing the term ‘forest

cover’ in all its India State of Forest Reports based on the “Minimum

Mappable Area” available to them through Satellite Data only based on

the technological status and not on any other parameters. Thus,

description of the forest cover by FSI was based on the availability of

high resolution of Satellite data which has advanced/improved over

31
period of time. Thus, in future, due to technical advancement, FSI might

be able to map minimum forest area even less than 1 (one) hectare.

However, the States cannot keep on changing the criteria for

identification of deemed forests based on such parameters which have

been set for an entirely different purpose. Therefore, respondent(s)

submit that there is 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 under the FCA 1980,

in view of the Judgment dated 12.12.1996 in TN Godavarman case

(supra), of this Court.

51. Further, the learned counsel for the respondents submits that if

the 0.1 density argument is acceded by this Court, then every 10,000 sq.

metres plot which has 10 to 20 trees would have to be determined as a

forest and a cumbersome prior clearance would be required on every

private land. They also submit that the State of Goa is placed uniquely

in the Geographical ecosystem whereas per FSI, the total area under

forest cover is about 60.2% under Forest Cover and another 8% as tree

cover. This is almost three times the national average and twice the

national goal. Thus, in addition to the 68% forest and tress cover, there

are areas under the Coastal Regulation Zone Notification; areas under

32
Ecologically Sensitive Area; areas under riverine and other wetlands;

areas of no development where gradient is 25%. In other words, no, or

very minimal area would be available for any future development.

Hence, they submit the approach of the appellant would amount to

punishing those people who have diligently planted trees on the private

land for increasing the green cover of Goa.

52. The counsel for the respondent(s) also drew our attention to Part

II of the Lafarge Judgement (supra) relating to Guidelines to be

followed in future cases dealing with disputes regarding what

constitutes a forest, wherein it is stated that if the project proponent

makes a claim regarding the status of the land being non-forest and if

there is any doubt then the site shall be inspected by the State Forest

Department along with the regional office of Ministry of Environment

& Forest to ascertain the status of forest, based on which the certificate

in this regard would be issued. In all such cases, it would be desirable

for the representative of the State Forest Department to assist the Expert

Appraisal Committee. In view of the above, if there is any doubt on the

criteria for identification of forests, it is the State Forest Department and

the Regional Office of Ministry of Environment, Forest & Climate

Change, which would be the deciding authority.

33
53. The counsel on behalf of the respondent(s) lastly submits 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

TN Godavarman case (supra). 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.

54. In the light of the above submissions, learned counsel for the

respondent(s) pray for dismissal of the appeals.

DISCUSSION AND ANALYSIS:

55. Having heard learned advocates appearing for the parties, we

are of the considered view that the following points would arise for our

consideration:

1. Whether the impugned order of the tribunal

requires to be affirmed or reversed?

34
 2. Whether any further directions requires to be

issued in the facts and circumstances? And if so,

what directions or orders?

3. What order?

RE: POINT NO.1

56. At the outset, it requires to be noticed that the High Court of

Judicature at Bombay in Writ Petition No.162 of 1987, disposed of on

27.11.1990, had taken note of the guidelines issued for division of

forest area for non-forest purposes under the FCA 1980 and pursuant

to the same the State of Goa proposed certain criteria for identifying

forest and the consequent application of the FCA 1980 to private forest.

The then existing criteria are as follows: -

i. 75% of the tree composition should be forestry

species.

ii.The area should be contiguous to the government

forest and if in isolation the minimum area should be
5 (five) hectares;

iii.The canopy density on the plot should not be less

than 0.4.

35
 Subsequently, this Court in T.N. Godavarman Case (supra)23 vide

order dated 12.12.1996 directed the State Governments to constitute

within 1 (one) month an Expert Committee to: -

i.Identify the areas which are “forest”, irrespective of

whether they are so notified, recognized or classified

under any law and irrespective of ownership of the

land of such forest;

ii.Identify areas which were earlier forests but stand

degraded, denuded or cleared and;

iii.Identify areas covered by plantation trees belonging

to private persons.

57. Pursuant to the same the Government of Goa constituted Sawant

Committee with terms of reference as indicated in Para 5 of TN

Godavarman case (supra) by order dated 12.12.1996, the said

Committee adopted the criteria (referred to herein above as then

existing) which was also based upon the Shivanand Salgaocar’s case

(supra). The criteria so determined was published in public notice dated

23
(1997) 2 SCC 267

36
08.02.1997 and this was not challenged by anyone including the

appellant herein.

58. It would be apt and appropriate to note at this juncture that in

the matter of Tata Housing (supra) this Court had an occasion to

consider the said criteria and to examine as to whether the report of the

Sawant Committee is to be accepted or otherwise and the question so

formulated in that regard reads as under: -

“11. Thus, the question which falls for consideration of this Court
is whether the High Court was justified in accepting the Third
Interim Report of the Sawant Committee and allowing the writ
application on the basis thereof. For deciding this question, it
would be necessary to refer to the Second Interim Report of the
Sawant Committee in which it has laid down three criteria for
classifying any land as “forest”. Relevant portions of the said
Report run thus:
“After the formation of the Committee, it was first decided to get
the forest cover through NRSA, Hyderabad but seeing the time
involved and nature of interpretation, it was decided to carry out
the exercise through physical verification by the departmental
staff only. Nature of interpretation means the satellite data gives
the natural green cover which includes most of the
plantation/seasonal crops such as cashew, coconut, areca nut etc.
For the purpose of classifying ‘forest’ such growth cannot be
considered. The Committee has taken the stand that for
considering any area as forest:
(i) 75% of its composition should be forestry species.
(ii) The area should be contiguous to government forest and if in
isolation the minimum area should be 5 hectares.
(iii) The canopy density should not be less than 0.4.
The above criteria which was in existence with the Forest
Department, Government of Goa has been approved by the
Government of Goa.
***
Based on the satellite imageries, toposheets, the areas outside the
government forests have been marked on the map and the forest
officials have done the physical verification of such areas
applying the above criteria.
***

37
 The Committee has procured the maps of 1978 from the Town and
Country Planning Department which have been prepared based
on the aerial photographs of 1960 and toposheets of 1960. In
these maps natural green cover has been shown but again it does
not either speak about the density or the species composition….
This natural green cover (pvt.) outside the government forests
being very high compared to the figure likely to be arrived at by
the Committee finally under the classification of private forests,
it is obvious as this private green cover includes all types of
vegetation and of all density class including cashew crop which
may not be fitted into the criteria taken for identification of
private forests.”

59. After having examined the records of the Sawant Committee,

this Court in Tata Housing (supra) observed that the three criteria

prescribed in the 2nd Report was just and proper and in conclusion it

has been held: -

“12. From a bare perusal of the aforesaid passages from the

Second Interim Report of the Sawant Committee it would appear
that the Committee had categorically laid down three criteria for
identifying a land to be forest and it had rejected the Satellite
Imagery and Toposheets of 1960 and Nature Green Cover Maps
as the relevant criteria for classifying any land to be forest. In the
Third Interim Report of the Sawant Committee in which it was
reported that the appellants' plot was a forest, curiously enough,
the three criteria referred to above, which were earlier followed
by the Committee for holding a land to be a forest land, were
abandoned. Instead, the Third Interim Report laid down
principally the following criteria:
(i) Satellite Imagery and Toposheets of 1960.
(ii) Report of the Sub-Committee for maintaining Nature Reserve
Green Belt around cities, particularly with reference to the map
prepared for nature reserve on hill slopes.
(iii) Enumeration of the plants in a 50-metre-wide belt adjoining
the boundaries of the appellants' plot on three sides i.e. the north,
east and west, but excluding the south side which had a huge
public structure admeasuring 1000 sq metres.”

18. This being the position, we are of the view that the Third
Interim Report of the Sawant Committee, having been based upon

38
 the criteria which were rejected by it in its previous report, cannot
be accepted as there was no ground for making a departure
therefrom while submitting the Report in relation to the
appellants' plot. The Committee was not justified in holding the
appellants' plot to be a forest land on the basis of an altogether
different criteria for which there is no reasonable nexus,
especially when none of the three criteria laid down in the Second
Interim Report has been adhered to. Thus the High Court was not
justified in accepting the Third Interim Report of the Sawant
Committee and concluding on the basis thereof that the
appellants' plot was a forest.”

60. These aspects were well within the knowledge of the

petitioner/appellant herein inasmuch as they were parties to the

proceedings in Tata Housing (supra). Therefore, they 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 dated 08.02.1997

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. However, in the teeth of contentions having raised

with the merits of the case, we do not propose to nip this litigation at

the bud but propose to examine the claim on its merits so as to avoid
39
any repetitive litigation in future and ensuring finality in such matters

with the object of putting an end to the litigation that has arisen in this

regard.

61. The appellants have also made valiant attempts to buttress their

arguments with regard to the criteria to be adopted for determination of

an area to be declared as forest by relying upon the pronouncement of

this Court in T.N. Godavarman Thirumulpad Vs. Union of India24 by

its order dated 26.09.2005 whereunder the concept of NPV was verified

to determine economic loss caused on account of deforestation. Hence,

we deem it proper to extract the relevant paragraph of the said order

and it reads as under: -

“49. Regarding the parameters for valuation of loss of forest, we

may only note as to what is stated by the Ministry of Environment
and Forests, Government in its handbook laying down guidelines
and clarifications up to June 2004 while considering the grant of
approval under Section 2 of the FC Act. Dealing with
environmental losses (soil erosion, effect on hydrological cycle,
wildlife habitat, microclimate upsetting of ecological balance),
the guidelines provide that though technical judgment would be
primarily applied in determining the losses, as a thumb rule, the
environmental value of one hectare of fully stocked forest (density
1.0) would be taken as Rs 126.74 lakhs to accrue over a period of
50 years. The value will reduce with density, for example, if
density is 0.4, the value will work out at Rs 50.696 lakhs. So, if a
project which requires deforestation of 1 hectare of forest of
density 0.4 gives monetary returns worth over Rs 50.696 lakhs
over a period of 50 years, may be considered to give a positive
cost-benefit ratio. The figure of assumed environmental value will
change if there is an increase in the bank rate; the change will be

24
(2006) 1 SCC Page 1.

40
proportional to percentage increase in the bank rate. Ms
Kanchan Chopra, while conducting a case study of Keoladeo
National Park in respect of economic valuation of biodiversity at
the Institute of Economic Growth, Delhi as a part of the Capacity
21 Project sponsored by UNDP and MoEF, Government of India
examined the question as to what kind of values are to be taken
into consideration. As per the study, different components of
biodiversity system possess different kinds of value : (1) a
commodity value (as for instance the value of grass in a park), (2)
an amenity value (the recreation value of the park), and/or (3) a
moral value (the right of the flora and fauna of the park to exist).
It is recognised that it is difficult to value an ecosystem, since it
possesses a large number of characteristics, more than just
market-oriented ones. It also leads to the need to carry out a
biodiversity valuation both in terms of its market linkages and the
existence value outside the market as considered relevant by a set
of pre-identified stakeholders. It is, however, evident that while
working out the biodiversity valuation, it is not trees and the
leaves but is much more. Various techniques for valuing
biodiversity that have been developed to assess the value of living
resources and habitats rich in such resources have been
considered by the author for her case study while considering the
aspect of value, their nature and stakeholders' interest. Insofar as
the value of ecology function in which the stakeholders or
scientists, tourists, village residents, non-users, the nature of
value is — regulation of water, nutrient cycle, flood control.
These instances have been noted to highlight the importance of
the biodiversity valuation to protect the environments. The
conclusions and the policy recommendations of the author are:
“Biodiversity valuation has important implications for decision-
making with respect to alternative uses of land, water and
biological resources. Since all value does not get reflected in
markets, its valuation also raises methodological problems
regarding the kinds of value that are being captured by the
particular technique being used. Simultaneously, in the context of
a developing country, it is important to evolve methods of
management that enable self-financing mechanisms of
conservation. This implies that biodiversity value for which a
market exists must be taken note of, while simultaneously making
sure that the natural capital inherent in biodiversity-rich areas is
preserved and values which are crucial for some stakeholders but
cannot be expressed in the market are reflected in societal
decision-making.
A focus on both the above aspects is necessary. It is important to
take note of the nature of market demand for aspects of
biodiversity that stakeholders, such as tourists, express a revealed
preference for by way of paying a price for it. Simultaneously, it
is important to examine the extent to which a convergence or
divergence exists between value perceptions of this and other
categories of stakeholders. It is in this spirit that two alternative

41
 methodologies are used here to arrive at an economic valuation
of biodiversity in Keoladeo National Park. The travel-cost
methodology captures the market-linked values of tourism and
recreation. It throws up the following policy implications:
1. Keeping in mind the location of the park and the consequent
joint product nature of its services, cost incurred locally is a
better index of the price paid by tourists. It is found that demand
for tourism services is fairly insensitive to price. A redistribution
of the benefits and costs of the park through an increase in entry
fee would not affect the demand for its services.
2. Cross-substitution between different categories of stakeholders
can improve the financial management of the wetland. A part of
the proceeds can go to the local management. Also, high-income
tourists, scientists and even non-users with a stake in preservation
can pay for or compensate low-income stakeholders for possible
loss in welfare due to limits on extraction and use.
3. However, the limit to such a policy is determined by the number
of visitors and their possible impact on the health of the wetland.
Such a constraint did not appear to be operational in the context
of the present park.
Identification and ranking of values of different aspects of
biodiversity resources as perceived and expressed by different
categories of stakeholders namely scientists, tourists, local
villagers and non-users is an important object in the process of
valuation. In the KNP study, a fair degree of congruence in
respect of ecological function value and livelihood value is
discovered to exist in the perceptions of diverse groups.
Stakeholders as diverse as scientists, tourists, local villagers and
non-users give high rankings to these uses.”

It has been so held hereunder that a Committee is to be constituted to

formulate base on which NPV could be calculated. It has been further

held that the NPV has to be worked out on economic principles.

62. Pursuant to the afore-stated directions by this Court, the

Committee so constituted had examined the recommendations of the

Central Empowered Committee which was accepted and the NPV rate

was fixed for a period of three years. The said Committee classified

42
forest into three types, namely, (i) very dense; (ii) moderately dense

and; (iii) open, which was based on the maps prepared by NRSC,

Hyderabad. It would be pertinent to note that the appellant is attempting

to import the figure of 1 (one) hectare in place of 5 (five) hectares (as

indicated in the prescribed criteria by State of Goa) solely on the ground

that the NPV cost therein was determined by this Court on per hectare

basis. It is relevant to observe that the analogies employed to calculate

the forest coverage area, which the appellant is attempting to introduce,

may be incongruent and unrelated to the identification or demarcation

of forest area. This process necessitates the application of a distinct

yardstick. 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.

As a consequence of the same the contention raised by the appellants

cannot be accepted and it deserves to be rejected and accordingly, it

stands rejected.

43
63. In fact, the process of physical demarcation of such forests in

the State of Goa seems to have attained finality by virtue of the reports.

The Final Report prepared by Deep Shikha Committee as also known

as Private Forest Review Report identified 46.11 sq. km. of area as

private forest which has been accepted by the Tribunal in OA No.479

of 2018 vide Order dated 18.08.2020 and the appeal filed by the State

of Goa against the said order in Civil Appeal No.01 of 2021 which has

been dismissed by this Court by order dated 01.02.2021. In other

words, 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. In the teeth of the afore-stated facts

and the orders passed by the Tribunals as affirmed by this Court, the

State of Goa has issued a gazette notification on 22.09.2022 notifying

46.11 sq. km. as private forest.

64. It is also curious to note that on the one hand the appellant has

been challenging the criteria adopted by Sawant and the Karapurkar

Committees for identification of private forest land in the State of Goa

44
before this Court and simultaneously has relied upon the said criteria

adopted by these Committees before the Tribunal in this regard. The

order of the tribunal dated 21.01.2015 rendered in OA No.22 of 2013

(Western Bench) title as ‘Goa Foundation Vs. Union of India and

Others’ can be looked up.

65. At the cost of the repetition, it requires to be noticed that

appellant is seeking a change in the criteria being followed by State of

Goa for identification and demarcation of forest under private

ownership or private forest by contending that State should follow the

same criteria for identification of forest land as is being used by FSI,

Dehradun for describing “forest cover” i.e., all lands more than one

hectare area with 10% irrespective of land use, ownership and legal

status. This exercise is being carried out by FSI, primarily for

assessment of forest and tree cover and monitoring the period change

based on satellite remote sensing to:

i. Prepare State of Forest report on State-wise Forest cover

biennially, providing assessment of latest forest cover in

the country and monitoring changes therein;

45
 ii. Conduct inventory in forest and non-forest areas and

develop database on forest tree resources and prepare

thematic maps;

iii. Support State/UT Forest Departments in forest resources

survey, mapping and inventory.

In fact, para 1.3 of the report published by FSI in 2017, the distinction

in the term ‘Forest Cover’ and ‘Forest Area’ has been stated as under:

"The term "Forest Cover" as used in Indian State of Forest Report

refers to all lands more than one hectare in area with a tree
canopy of more than 10%, irrespective of land use, ownership and
legal status. It may include even orchards, bamboo, palm etc and
is assessed through remote sensing. On the other hand, the term
'Recorded Forest Area' or 'Forest Area" refers to all the
geographical areas recorded as 'Forests' in government records.
Recorded forest area mainly consists of Reserved Forests (RF)
and Protected Forests (PF), which have been notified under the
provisions of Indian Forest Act, 1927 or its counterpart State
Acts. Beside RFs and PFs, the recorded forest area may also
include all such areas, which have been recorded as forests in the
revenue records or have been constituted so under any state Act
or local laws.
Recorded Forest area may have blank areas with tree density less
than 10 % such as degraded lands, wetlands, rivers, riverbeds,
creeks in mangroves, snow covered areas, glaciers and other
snow covered .areas, alpine pastures, cold deserts, grasslands
etc. As per the definition of forest cover, such areas are excluded
from the assessment of the forest cover. On the other hand, there
are areas outside the recorded forests with tree patches of one
hectare and more with canopy density above 10%. For example
plantations on the private community lands, road, rail and canal
sides, rubber, tea and coffee plantations etc. Such areas also
constitute forest cover and are li included in the forest cover
assessment. "

46
66. Upon examining the FSI Report, a clear distinction emerges

between ‘Forest Cover’ and ‘Recorded Forest Area.’ ‘Forest Cover’

encompasses all lands exceeding 1 (one) hectare in size with a tree

canopy exceeding 10%, regardless of land use, ownership, and legal

status. This category may encompass various features like orchards,

bamboo groves, palm plantations, etc., and is evaluated through remote

sensing techniques. Conversely, the term ‘Recorded Forest Area’ or

‘Forest Area’ refers to all geographic areas officially designated as

‘Forests’ in government records. Recorded forest areas primarily

include Reserved Forests (RF) and Protected Forests (PF), which are

notified under the provisions of the Indian Forest Act, 1927, or

equivalent State Acts. In addition to RFs and PFs, the recorded forest

area may also cover regions recorded as forests in revenue records or

established as such under any State Act or local laws.

67. The State of Goa is one of the smallest States in the country

having geographical area of 3,702 sq. km. As per the India State of

Forest Report, 2017 published by FSI, the forest cover of Goa is 2,229

sq. km. which is 60.21% of the total geographical area of the State. It

is three times higher than the National Forest Cover which is 21.54%.

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If the tree cover of the State is included which is 323 sq. km. the total

forest and tree cover of Goa works out to be 2,552 sq. km. which is

68.94% of the geographical area of the State. As rightly pointed out by

Mr. Kohli, learned Senior Counsel appearing for the State of Goa the

change of existing criteria in determining the deemed forest would have

a negative impact on the conservation measures being undertaken

hitherto and the reasons enumerated in paragraph 15 could support the

said contentions. It reads as thus: -

(i) All open forest area (10% to 40 % canopy density} under

private ownership shall be identified as deemed forest in the state
of Goa, whereas most of this open forest area is habitation area
having trees planted traditionally by the people around. their
houses for meeting their daily needs of food, fruits, firewood,
small timber, agriculture implement etc.
(ii) If a person wants to plant 10 trees preferred by him like
Mango, Tamarind, teak, jackfruit, chickoo, kathal, etc in his own
land of one hectare for the above mentioned needs it will cross
the threshold of 0.1 canopy density and be declared as private
forests.
(iii) It will be a huge disincentive for the small land owners,
whose lands will fall under private forest and they will be
compelled to seek approval under FCA, 1980 from the Central
Government for every parcel of land which may discourage the
people of Goa to plant, protect and conserve trees on their lands.
Such land owners would lose their right to use their own land for
their bona fide needs in view of stringent conditions as laid down
in various provisions of the FCA, 1980.
(iv) This criteria being independent of ownership, will also
attract almost all of the government, private office and residential
complexes, educational and other institutions since one hectare
criteria with 0.1 canopy density will be applicable to the entire
state of Goa.
(v) The people, who have cleared the forest / trees on their land
before 1996, would appear to be in advantageous position in the
eyes of private forest owners.

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(vi) It may give a wrong message to private land holders to not
only destroy existing forests/ tree vegetation but there would be
no incentive for planting trees or helping in their conservation in
·. view of the restrictions being placed on the usage of their own
land.
(vii) As per order dated 12.12.1996 passed by this Hon'ble Court
in T. N. Godavarman Vs Union of India, W.P No.202/1995, Govt.
of Goa initiated the process of identification of private forests in
true spirit following the existing criteria. It is being confirmed
using satellite imageries and ground verification by a Review
Committee at present. These criteria as mentioned in above para
number 4 were formulated by State of Goa way back in 1991
based on the High Court of Bombay order in Writ petition
No.162/1987, Shivanand Salgaonkar Vs. Tree officer & others.
And it has taken almost two decades to identify and demarcate
this private forest area on the ground, which is still not complete
and is being done presently by the Review Committee. Reducing
the criteria to 0.1 Canopy Density and 1 Hectare will again
restart the process to bring large number of private lands with
few trees under private forests thereby adversely impacting even
the small land owners who have protected trees in good spirit.
(viii) It will be a huge burden on small land owners (i) to
find alternative land for Compensatory Afforestation and (ii) to
pay Net Present Value (NPV) for his own small bonafide needs
such as extension/ construction of even one room use of even
small part of his land, and for planting of trees by removal of
existing trees on his own land under CA.
(ix) It will put serious pressure on available land for
development of the State and bonafide aspirations of its people
including conservation imperatives.

(x) In the State of Goa, geographically available land of 3702

Sq. Km has been divided into Eco Zone 1, Eco Zone 2 and
Developable Zones, under the Regional Plan Goa 2021 under the
Town and Country Planning Act, 1974. In so far as Eco Zone- 1
IS concerned, it comprises Forest (Protected/Reserved/National
Park/Wildlife Sanctuaries), Mangrove Forest, identified Private
Forests till 2008, Water Bodies/nallas/ponds and paddy
fields/khazan lands. Eco Zone 1 constitutes 50.94 % of the
geographical area of the State and is completely a ‘No
Development Zone’. In so far as Eco Zone- 2 is concerned, it
comprises orchards, natura! cover, cultivable land, salt pans and
fish farms/mud flats. Eco Zone-2 constitutes 31.42% of the
geographical area of the State where development is restricted to
the land use which is completely regulated. Together Eco Zone 1
& 2 constitutes 82.37% of the geographical area of the State
leaving behind 17.63% of land as Developable Zones in which
also development is regulated and restricted. A copy of the forest
cover map of state of Goa as per India State of Forest Report,

49
 2017, FSI Dehradun is annexed hereto and marked as Annexure
– B.

68. It is necessary to mention at this juncture, 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. In this regard, it would be apt to consider the

criteria/parameters formulated by various States to identify the private

forest as indicated in the affidavit filed on behalf of the respondent No.

1, 4 to 8 dated 07.05.2019 are as under:

State Description of the Criteria/parameters

Andhra Pradesh All private lands bearing natural tree growth more
and Telangana than 0.40 density and having an extent of 10
hectares, shall be treated as forest subject to the
conditions that it should not adversely affect
customary rights of ‘Tribal Land owners’.
Arunachal Areas recorded as forest in the government records
Pradesh were only treated as forests for the purpose of the FC
Act. Expert committee did not formulate any
parameter to classify an area as ‘forest’ by dictionary
meaning.
Assam Minimum forest area of Ten hectare and more under
private ownership were treated as ‘forest’ by
dictionary meaning.
Chhattisgarh A patch of land irrespective of their ownership will be
and Madhya deemed as ‘forest’ if
Pradesh (a) Its area is not less than 10 hectares.

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 (b) It is covered with naturally growing timber, fuel
wood and yielding trees.
(c) Average number of trees standing on it is 200
or more tree per hectare.
Goa A patch of land irrespective of their ownership will be
deemed as forest if
a. 75% of the crop composition of such lands
should be of from forest species and
b. Area should be either be contiguous to
Government Forest land or in isolation the minimum
area so identified should be 5 hectares. In case of
mangroves, area less than 5 hectares is also
considered a forest whether or not in contiguity to
Government Forest land.
c. Minimum 0.40 canopy density.
Himachal Compact blocks of wooded land above 5 ha in extent.
Pradesh
Karnataka a. Government land parcels with area of 2 hectares
and above, minimum density 50 naturally grown trees
per hectares of girth at breast height 30 cm and above
b. Block plantations on Government lands with area
of 2 hectares and above having minimum density of
100 planted trees per hectares of 30 cm and above
girth at breast height and
c. Private lands with area of 5 hectares & above,
minimum density of 50 naturally grown trees per
hectares of 30 centimetres and above girth at breast
height.
Maharashtra Following parameters were followed
a. An area which falls under the definition of word
‘forest’ and
b. All the mangroves shall be treated as ‘forest’
Meghalaya An area would be ‘forest’ if it is a compact or
continuous tract of minimum 4 hectares land,
irrespective of ownership, and where-

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 a. More than 250 naturally growing trees per hectare
of 15 cm and highest diameter at breast height (DBH)
over bark are present or
b. More than 100 naturally growing bamboos clumps
per hectare are present in case of the tracts containing
predominantly sympodial bamboo.
Odisha Those areas which are 5 hectares or more in extent in
one continuous patch of private land covered with
plantations and/or natural growth.
Rajasthan Area not less than 5 hectares and having not less than
200 plants per hectare were treated as ‘forest’ by
dictionary meaning.
Sikkim Contiguous patch of minimum 10 hectares area
having more than 0.40 crown density were treated as
‘Forest’ by dictionary meaning.
Uttar Pradesh Minimum 3 hectares area with minimum 100 trees
per hectare in Vindhya & Bundelkhand region and
minimum 2 hectares area with minimum 50 trees in
Terai & Plain areas were treated as ‘Forest’ by
dictionary meaning, subject to the following
conditions;
a. Trees means naturally grown perennial trees
b. Shrubs will not be counted among trees
c. Minimum area of land will be based on gata-wise
d. In case of private land, in case a gata is registered
in name of several persons in the form of minjumula,
then area of each minjumula will be considered for
area limit.
e. Plantations raised on government and private land
will not be considered as forest.
West Bengal Compact patches of minimum 1 hectare area having
minimum crown density of 0.40 were treated as
‘forest’ by dictionary meaning.
Dadra & Nagar Private/Government areas with minimum 5 hectares
Haveli or more having tree vegetation with species variations
and required stocking area to be treated as ‘forest’ by
dictionary meaning.

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69. In view of the above, we summarise our discussion as under:

i. Firstly, the existing criteria for identification of private

forests in the State of Goa are adequate and valid, hence,

they require no alteration. 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. Reference can be made to the communication

dated 03.01.2005 of MoEF. Further, it can be 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

53
 Government under the FCA 1980, for the landholders,

would become indispensable. It would be of necessity to

note 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 pandora’s box, and it would

result in all the States undertaking the task of reassessing

the forest area all over again which has since been settled

on the basis of existing criteria.

ii. Secondly, it has been noticed that appellant is attempting

to take a contrary stand on the issue of criteria for the

identification of forests, namely, suggesting a change in

criteria for the identification of deemed forests under

private ownership. On the one hand, the appellant is

challenging the criteria adopted by the Sawant and

Karapurkar Committees for the identification of inter

alia private forests and on the other hand has relied on the

same criteria adopted by these two committees for the

identification of forests, including private forests, before

the Tribunal, as has been observed by the Tribunal in its

judgement rendered in O.A. No.22 of 2013 on 22/01/2015

54
 in the matter of Goa Foundation v Union of India &

Others and in O.A. No.479 of 2018 in the matter of Goa

Foundation v State of Goa & Others. Thus, appellant

cannot be permitted to approbate and reprobate. The

appellant has 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 (supra) and before the Tribunal in Nisarga

(supra). In fact, appellant and another NGO had argued

before the Tribunal in Nisarga (supra) that the criteria

ought to be 10% canopy density, which did not find

favour with the Tribunal in the teeth of Tata Housing

(supra), and said order passed in Nisarga (O.A. No.19 of

2013) has attained finality.

iii. Thirdly, this Court vide its order dated 12.12.1996 had

expressly delegated the task of identifying forest areas to

Expert Committees to be constituted by State

Governments, thereby recognising that there can be no

uniform criteria for such identification across the country.

55
70. In light of the above conclusion, we are of considered view that

the present appeals would not merit acceptance and accordingly same

stand rejected and the impugned order dated 30.07.2014 is upheld.

Consequently, the interim order dated 04.02.2015 passed in I.A.

No.3845 of 2015 in WP No.202 of 1995 is vacated. I.A. No.40261 of

2017 filed by Respondent No.1 and I.A. No.116496 of 2022 filed by

the impleading party (CREDAI), are allowed. We also place on record

the valuable assistance rendered by Mr. K. Parameshwar as Amicus

Curiae.

…….………………….J.
(B.R.Gavai)

…….………………….J.
(Aravind Kumar)

…….………………….J.
(Prashant Kumar Mishra)
New Delhi,
January 24, 2024

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