)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10605 of 1995 with Special Civil Application No.2870 of 1996 with Special Civil Application No.590 of 1997 with Civil Application No.297 of 1998 in Spl.C.A.No.2870/96 ...... For Approval and Signature: Hon'ble THE CHIEF JUSTICE MR. K.SREEDHARAN and MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements?-Yes. 2. To be referred to the Reporter or not?-Yes. 3. Whether Their Lordships wish to see the fair copy of the judgement?-No. 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?-No. 5. Whether it is to be circulated to the Civil Judge?-No. -------------------------------------------------------------- AJIT D PADIWAL Versus UNION OF INDIA -------------------------------------------------------------- Appearance: Special Civil Application No 10605 of 1995 MR. Raj Punjwani, Advocate, with MR BHUSHAN B OZA, Advocate, as Amicus Curiae. Dr. Rajeev Dhawan, Senior Advocate, with Mr.J.D. Ajmera, Central Govt. Standing Counsel, for Respondent No. 1-Union of India. Mr. S.N. Shelat, Additional Advocate General, with Ms. Amee Yajnik, Assistant Government Pleader, for respondent No.2-State of Gujarat. Mr.Santosh Hegde, Senior Advocate, with Mr.Anip Sachthey and Mr.Nandish Chudgar, for Nanavati Associates, for Respondent No.5. Mr.B.P. Tanna, Advocate, of Tanna Associates, for Respondent No.15. Mr.Tushar Mehta, Advocate, for respondents Nos. 16 to 19. Special Civil Application No.2870 of 1996 MR. Raj Punjwani, Advocate, with MR D.K. Nakrani, Advocate, for the Petitioner. Dr. Rajeev Dhawan, Senior Advocate, with Mr.J.D. Ajmera, Central Govt. Standing Counsel, for Respondent No. 1-Union of India. Mr. S.N. Shelat, Additional Advocate General, with Ms. Amee Yajnik, Assistant Government Pleader, for respondent No.2-State of Gujarat. Mr.Santosh Hegde, Senior Advocate, with Mr.Anip Sachthey and Mr.Nandish Chudgar, for Nanavati Associates, for Respondent No.3. Mr.B.P. Tanna, Advocate, of Tanna Associates, for Respondent No.4. Special Civil Application No.590 of 1997 MR. Raj Punjwani, Advocate, as Intervener. Dr. Rajeev Dhawan, Senior Advocate, with Mr.J.D. Ajmera, Central Govt. Standing Counsel, for Respondent No. 1-Union of India. Mr. S.N. Shelat, Additional Advocate General, with Ms. Amee Yajnik, Assistant Government Pleader, for respondent No.2-State of Gujarat. Mr.D.H. Waghela, Advocate, for Respondent No.3. -------------------------------------------------------------- CORAM : THE CHIEF JUSTICE MR. K.SREEDHARAN and MR.JUSTICE M.S.SHAH Date of decision: 23/02/98 C.A.V. JUDGEMENT: (Per K. Sreedharan, C.J.) 1. Special Civil Application No.10605 of 1995 was filed by late Shri Ajit D. Padival, who was a practising lawyer of this Court. The main prayer in that petition, filed as a public interest litigation, is to direct respondents Nos. 1 to 4, 6 and 7, Union of India, State of Gujarat and its Officers to take effective steps against the unauthorised and illegal encroachment made by the 5th respondent, Sanghi Industries, over an extent of 500 hectares of reserved forest land for the construction of a jetty. Allegations made therein, that respondent No.5 is encroaching upon extensive forest areas for construction of jetty, were based on a news item, which was published in Daily newspapers, having wide circulation. The construction of jetty and connecting roads are within the reserved mangrove forest in Kutch. Though the Conservator of Forests, Kutch Circle, tried to prevent the 5th respondent from carrying on illegal activities within the forest area, revenue authorities are taking a contrary view of the matter and are siding with the 5th respondent. 5th respondent has encroached upon reserved forest area of Golai village and also into the mangrove reserved forest near Akri Village, violating the provisions of the Indian Forests Act, 1927 and the Forest Conservation Act, 1980. Under Section 20 of the Indian Forests Act, 1927, Government of Gujarat had declared the lands of west mangrove forest of Talukas Abdasa and Lakhpat of Kutch District as reserved forests. 130846 acres and 37 gunthas of land so declared as reserved forests still continue to be reserved forest and no non-forest activity can be permitted in that area. 5th respondent has trespassed into the west mangrove forest without any authority and started construction of jetty and approach road. These activities will lead to adverse impact on environment and ecology. Activities resorted to by the 5th respondent will destroy the mangrove forest and annihilate the entire marine wildlife. 2. Special Civil Application No. 2870 of 1996 has been filed by World Wide Fund for Nature India, a Public Trust registered under the Bombay Public Trusts Act. According to them, State of Gujarat, by Notification dated 12.9.1975, issued under Section 20 of the Indian Forests Act, 1927, declared the lands of western mangrove forest as reserved forest. 3rd respondent, Sanghi Cements, has constructed a road on the reserved forest land connecting it to the main land where they have put up their factory. This road is 50 metres wide and 1150 metres long. They have also constructed bridges across rivers. They have constructed a jetty within the boundaries of the western mangrove reserved forest. The illegal activities and unauthorised encroachments made within reserved forests by the third respondent violates the provisions of Section 2 of the Forest Conservation Act, 1980. Construction of jetty, bridges and road, leading to the jetty, violates the provisions of the Coastal Regulation Zone Notification dated 19.2.1991, issued under Section 3 of the Environment (Protection) Act, 1986. That Notification prohibits all constructions on the land, which are influenced by the tidal action (in the landward side) upto 500 metres from the high tide line. It also prevents such activities in between the low tide line and the high tide line. Under clause (2), no construction is permissible in areas, which are ecologically sensitive, like National Parks, Sanctuaries, reserved forests and mangroves. On 7th July, 1995, 3rd respondent applied for permission under Coastal Regulation Zone Notification of 1991. That application was not in proper form. 3rd respondent was directed to file proper application, with all details and route it through the State Government. Thereupon, it is alleged, 3rd respondent did not approach the Central Government, but has constructed the jetty, bridges and portion of the road, leading to jetty, which falls within the Coastal Zone Regulation Notification. On these averments, it is prayed that State Government may be restrained from granting any lease or right to the third respondent over lands falling within reserved forests without complying with Section 2 of the Indian Forest Conservation Act, 1980 and to restrain the 3rd respondent from carrying on any construction of the jetty, road or bridge in any portion, which falls within the Coastal Regulation Zone Notification. 3. The Indian Council for Enviro-Legal Action moved the Supreme Court in Writ Petition (C) No.664 of 1993, challenging the setting up of Factories, construction of bridges and other activities, which violated the environmental laws of the land. One of the Projects, which, as per the petitioners, violated the Environmental Laws, is the Sanghi Jetty / Cement Project in Kutch. National Environmental Engineering Research Institute ("NEERI") was directed by Their Lordships to examine environmental viability and sustainability of the Project. NEERI submitted their report to Court. When the matter came up for hearing on 23.12.1996, Their Lordships felt that the issue raised before that Court be better dealt with at the High Court level. Their Lordships remitted the issue to this Court for considering all issues raised therein, along with the pending matters. Consequently, Special Civil Application No.590 of 1997 was registered. 4. It is common case of parties that Sanghi Industries have undertaken construction of a jetty in Khauthar Bet. It bears Survey No.131. According to the petitioners, this land forms part of reserved forests. The State Government and the Company, on the other hand, would contend that it is part of revenue land, comprised in Akri Village. In the nature of the contentions raised by the parties, it is necessary to go into the issue as to whether Khauthar Bet is part of reserved forest, as contended by the petitioners, or is revenue land, as stated by the State Government and Sanghi Industries. 5. Section 3 of the Indian Forests Act, 1927 deals with the power of the State Government to reserve forests. As per that Section, any forest land or waste land, which is the property of Government or over which the Government has proprietary right, can be constituted by the State Government as a reserved forest. As to how the land is to be reserved is provided in the subsequent sections. Whenever it has been decided to constitute any land a reserved forest, the State Government should issue a Notification. That Notification must specify as nearly as possible the situation and limits of the land to be reserved. Government has also to appoint Forest Settlement Officer to enquire into and determine the existence, nature and extent of any rights alleged to exist in favour of any other person in or over the land. That Officer is to deal with such claims as provided in the Act. Section 4 makes it absolutely clear that for specifying the situation and limit of the land to be reserved, it is sufficient to describe the limits by roads, rivers, ridges or other well-known or readily intelligible boundaries. After the issue of a Notification under Section 4, no right shall be acquired in or over the land by any one without specific grant in that regard by the Government. Forest Settlement Officer appointed under Section 4 should also publish a proclamation, specifying the situation and limits of the proposed forest. This Officer is to enquire into the claims preferred by any one over the land comprised within the Notified Area. Rights in respect of which no claim is preferred or those which are not brought to the knowledge of the Forest Settlement Officer during the enquiry under Section 7 of the Act will stand extinguished. If any claim over the area is established before the Forest Settlement Officer, that Officer has the power to exclude such land from the list of the proposed forest. Once all the said claims are decided by the Forest Settlement Officer, the State Government is to publish a Notification in the Official Gazette, declaring the area to be reserved forest under Section 20 of the Act. That declaration should definitely specify the limits of the forest, which is to be reserved, according to boundary marks. The Act gives utmost importance to the boundary marks erected or otherwise, to decide the limits of the forest. 6. In exercise of the powers conferred by Sections 4 and 17 of the Indian Forests Act, State of Gujarat issued Notification dated 19.3.1962. As per that Notification, areas mentioned in the Schedule thereto, situated in Abdasa and Lakhpat Talukas were declared as reserved forests. Forest Settlement Officer, Bhavnagar has been nominated to be the Settlement Officer under Section 4(1)(c) of the Act. Collector of Kutch was appointed Appellate Authority to entertain appeals from the decision of the Settlement Officer. In the Schedule, against column `Survey Number', it was noted as "Not Available". A Note was also added to the effect that this area is slushy and muddy and completely out of village boundaries of extreme border villages and hence, no Survey Number exists. The Notification thus makes it clear that the west mangrove forest notified thereunder is completely out of village boundaries. Boundary of that area is specifically given. Eastern Boundary, with which we are concerne.T..... :- "... As per demarcation carried out on the spot from the boundary stone No.18 at the corner of old Khauthar Port and Custom Building to the boundary stone No.280, where land is touching to the Koteshwar Port limit line in the sim of Narayan Sarovar. The line is possibly running by separating salt waste and cultivable lands in the west of village boundary of Jakav, Kosa, Akri, Modi, Bhutau, Tera, Ghuar and Narayan Sarovar village, covering entire mangrove and grass island...." The description of this eastern boundary of the forest area shows that the forest is situated to the west of Akri village. It takes in the entire mangrove and grass island. The grass island should, therefore, be to the west of Akri Village. It cannot form part of Akri Village. The area of the forest reserved is 1,30,846.37 acres. In relation to this area, the Forest Settlement Officer was to consider claims of persons that may be put forth. Settlement Officer considered the claims as is seen in his Award dated 11.5.1966. Two persons, by name Vagher Hussain Osman and Suleman Liyar, are seen to have raised certain claims over the said land. That was dealt with by him in the Award. Those claims were in relation to the properties comprised in Survey Nos. 1290, 1291, 1292, 1293 and 1294. Apart from those claims, no other claim was seen to have been put forth by any one. Pursuant to that Award of the Settlement Officer, State Government issued notification dated 2.7.1975, under Section 20 of the Forest Act. The area covered by this Notification is identical to that contained in notification issued under Section 4 on 19.3.1962. The eastern boundary was maintained the same. So, entire land west of the village boundary of Akri, was included in the west mangrove reserved forest. Grass island formed part of the land reserved as forest. Khauthar Bet has got grass vegetation only. No other area is now mentioned to have grass vegetation. That grass island, which has grass cultivation, must, therefore, form part of reserved forests. 7. In the Notification issued under Section 4 of the Indian Forest Act, as against column "Survey Number", it was noted : "Not Available : This area is slushy and muddy and completely out of village boundaries of extreme border villages and hence, no Survey Number exists." On the basis of this description of the Survey Number in the Notification, it was argued that area, in relation to which Government intends to make it reserved, should be outside the village boundaries of border villages. This boundary as per the Conference held at Mysore should be the low tide line. Consequently, the west mangrove forest must have its eastern boundary at the low tide line. We are finding it difficult to agree with this argument. Low tide line in the particular area is far away from the village boundary. The area in between the low tide line and high tide line is substantial. The Notification under Section 4 does not make reference to the low tide line or the high tide line. Boundaries were described with reference to boundary stones planted at the site. It was with reference to those boundary stones the situation and limits of the land fixed. Consequently, it cannot be held that the areas, which are slushy and muddy alone came within the ambit of the Notification. According to us, the area comprised within the boundary, situated to the west of the eastern boundary, was taken in as the area to be reserved. 8. While describing the eastern boundary in the Notification dated 19.3.1962, it was stated :- "... The line is possibly running by separate salt waste and cultivable lands in the west of village boundary of Jakav, Kosa, Akri, Modi, Bhutau, Tera, Ghuar, and Narayan Sarovar village, covering entire mangrove and grass islands...." This description of the eastern boundary, according to counsel representing Sanghi Cements, shows that boundary was drawn in such a manner that cultivable lands situated to the west of the village boundary were taken out of the limits. In other words, the eastern boundary was drawn in such a manner that all cultivable lands to the west of the village boundaries were outside the area notified to be reserved forest. If the boundary line is so drawn, it is further argued, the land possessed by the Company will be outside the reserved forest area. This argument is quite attractive. But, on the facts of these cases, especially in view of the plans now made available to us, it is not possible to accept this argument. The eastern boundary given in the notification, even conceding for argument's sake the contention put forth by the Company is tenable, should be a continuous line. It cannot have the effect of patches... being excluded from the reserved area. Viewed in this light, we are clear in our mind that within the area reserved as forest, there cannot be an island-like formation, falling outside the purview of the notification. 9. As per Notification under Section 4, the area, which was to be declared as reserved forest, was having an extent of 130846.37 acres. In the Award passed by the Settlement Officer, rights of two individuals were recognised. For a proper understanding of that Award, we read its translation :- "... On the Cher Forest Land (West Mangrove Forest) admeasuring 130846.00 acres (205.45 sq. miles), situated on western side of Abadasa Lakhpat Talukas of Kutch District, the following two account holders, on whose names the fields shown against their names stand, and which are situated on the Island known as "Chabri Island", around 8 miles away from Jakhau Port, have all the rights to carry on their business and they have right of to and fro access over the said land and that no other person except the said two persons have any right whatsoever over the said lands. Survey Area No. (in acres) 1. Vagher Hussain 1292 2.12 Osman 1293 2.15 1294 1.26 2. Suleman Liyar 1291 7.16 1290 1.26 The boundary of.T..... Notification, and demarcation of the boundary is shown by the stones. This order is issued by me under my signature and seal of the Court today, 11.5.1966." The area reserved in favour of the two persons named therein is about 15 acres. While issuing the Notification under Section 20, that area has not been deducted from that mentioned in the Notification issued under Section 4. On this basis, it was contended that all lands coming within the boundary cannot be taken as reserved forest. We are not impressed with this argument. As against 130000 odd acres, 15 acres is a negligible area. The non-mention of that area or the reduction of the total area to that extent cannot be taken as a ground for doubting the correctness of the boundary of the reserved forest. In Annexure IX attached to the report submitted by Shri Bhardwaj Committee, Survey Nos. 1291 to 1295 and 1299 in Chabidhar-I Bet is stated to have no agricultural activities at present. From what point of time agricultural operations in that area ceased to exist is not clear. If the agricultural operations stopped prior to 1975, the date of publication of Notification under Section 20 of the Forest Act, non-reduction of the area covered by the Award of the Settlement Officer can be justified. Non-reduction of the area in the Award, thus, is of no consequence. No provision of the Forest Act requires the mention of Survey Number of the land to be reserved. The entire Act gives emphasis to the situation and limits of the area as per boundaries. Thus, it can be seen that under the Indian Forest Act, boundaries of the reserved forest are the most important element and not the Survey Numbers or its extent. In the instant case, the boundary marks of the area are clearly established by the plan prepared by the Committee headed by Shri Bhardwaj and the plan seen in the official record made available to us by the learned Additional Advocate General of Gujarat. Government of India placed before us the plan of Kutch District, published by the Surveyor General of India. West mangrove reserved forest is marked in that plan with thick green boundary lines. Khauthar Bet is shown in that plan as falling within the boundaries of west mangrove reserved forest. No argument has been advanced by any of the parties to this proceeding, questioning the correctness of the boundary marked in that plan. We do not find any reason to doubt the correctness or authenticity of that plan. West mangrove reserved forest is continued to the north by Golay reserved forest. This is a strong circumstance to take the view that Khauthar Bet is part and parcel of west mangrove forest notified to be reserved forest under Section 20 of the Indian Forest Act, 1927. 10. Sanghi Cements applied for land to build a Captive Port near to their plant. In their communication, dated 12.9.1994, they suggested two probable locations, one in sugar creek and the other in Khare creek. The land is described as Government waste land (unsurveyed). One of the locations they sought for was shown in the map filed along with the petition. In the map, the land was located as one to the south of boundary stones F-357 and 358 and located to the west of Survey Nos. F-359 and 360. That plan certified to be the correct plan, showing the location of the area demanded is at page 555 of Special Civil Application No.2870 of 1996. This was the plan given to the forest officials. On verifying the boundaries shown in that plan, the forest authorities found the area to be outside the reserved forest. But, actually, the area that was wanted by the Company and which they took possession of was not correctly located. The irregular shaped land, which the Company wanted, was shown in the plan as situated near to boundary marks F-357, 358, 359 and 360, and outside, i.e. to the east of the forest boundary stones, bearing Nos. 145 to 153. This is discernible from plan Annexure R-1 filed along with the affidavit-in-reply dated 24.9.1997 filed on behalf of the Union of India. The land in Khauthar Bet, which is now used by Sanghi Cements for constructing the jetty, is to the west of boundary stones Nos. 130 to 145 of the reserved forest. It is to the west of boundary stones F-362 to 365 of Gunav village and F-392 to 394 of Akri village. 11. On behalf of the Government of Gujarat, a plan prepared by the Project Officer, Land Record Computer Unit, Gandhinagar, was placed before us by learned Additional Advocate General on 10.2.1998. In that plan, 12 Bets, including Khauthar Bet, have been located in yellow colour. They are situated to the west of the eastern boundary of reserved forest. Survey Nos. 1291 to 1294 and 1299 made mention of in the Award passed by the Forest Settlement Officer in his Award are located in Chabidhar-I Bet located at the southern extremity of the reserved forest. Only these Survey Numbers are given to portions in that Bet. From the plan, it is evident that even the remaining portions of that Bet have not been surveyed and numbers assigned. The plan further states that the yellow coloured Bets were surveyed during 1969-'71, i.e. long after the Award passed by the Forest Settlement Officer. Survey Numbers made mention of in the Award were assigned during 1963-'64. From this circumstance, it is clear that portions of Chabidhar-I Bet, over which private parties have claims, were dealt with by the Settlement Officer and their rights decided in the Award. On the date of this Award, no other Bet was surveyed or survey numbers assigned. Nor was any right over any portion, known as `Bets', put forth by any one before the Settlement Officer. Assignment of Survey Numbers to the Bets, therefore, does not in any way change the character of the lands within the boundary as reserved forest. The plan now produced by the learned Additional Advocate General makes the issue relating to the eastern boundary of the reserved forest abundantly clear. In the light of the above discussions, the nature of Khauthar Bet as part of reserved forest is not at all open to any doubt. 12. This Court directed the Chief Secretary to Government of Gujarat to constitute a Committee for ascertaining the demarcating line to show forest and non-forest land area. Pursuant to that direction, Chief Secretary constituted a Committee, consisting of Shri A.M. Bhardwaj, IAS, Revenue Inspecting Commissioner, Shri K.R. Patel, IFS, Chief Conservator of Forests, Wildlife, and Shri A.M. Saiyed, Superintendent, Land