Disposed

Subash Mohapatra v. State of Odisha through Chief Secretary Govt. of Odisha

NGT25 Mar 2022Original Application No. 100/2017

Case brief

AI extract

What is this about?

This appeal concerned alleged unauthorized diversion of 185 acres of forest land in Patia Village for industrial use by IDCO. The applicant claimed violations of the Forest (Conservation) Act. The Tribunal directed completion of DGPS surveys and submission of documents for forest clearance and compensatory afforestation.

What did the court decide?

DGPS survey completed within one month; documents uploaded on Parivesh within one month; forest clearance obtained within four months.

Subash Mohapatra vs State of Odisha through Chief… — Environment and Pollution | NGT (2022)

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BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA

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............ ORIGINAL APPLICATION No.100/2017/EZ

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IN THE MATTER OF:

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Subhas Mohapatra

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At: Khandual Vihar, P.O.: Sarakantar, P.S.; Khandagiri, Bhubaneswar, Khurdha, Odisha-751019

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....Applicant(s)

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Versus

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1. State of Odisha

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Through the Chief Secretary, Govt. of Odisha, Secretariat Building, Bhubaneswar-751001

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2. District Collector, Khurdha At/PO: Khurdha, Dist.: Khurdha, Odisha

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3. Divisional Forest Officer,

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Chandaka Wildlife Division, Gajobihar, Bermunda, Bhubaneswar, Odisha-751003

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4. Union of India

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Through the Secretary, Ministry of Environment and Forests & Climate Change Indira Paryavaran Bhawan, Jorbagh, New Delhi-110003

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5. Orissa Industrial Infrastructure Development Corporation (IDCO) Represented by its Managing Director, At/P-IDCO Tower, Janpath, Bhubaneswar-751022

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6. The Secretary, Department of Revenue & Disaster Management, Govt. of Odisha

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....Respondent(s)

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COUNSEL FOR APPLICANT:

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Ms. Tushar Kumar Mishra, Advocate

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COUNSEL FOR RESPONDENTS:

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Mr. Tapas Kumar Praharaj, ASC for R-1, 2, 3 & 6 Mr. Gora Chand Roy Choudhury, Advocate for R-4, Mr. Lalit Kumar Maharana, Advocate for R-5

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JUDGMENT

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PRESENT:

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HON’BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON’BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER)

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Reserved On: - 24^th February, 2022 Pronounce On: - 25^th March, 2022

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__________________________________________________________________ 1. Whether the Judgment is allowed to be published on the net? Yes

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Whether the Judgment is allowed to be published in the NGT Reporter? Yes

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JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER)

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Heard learned Counsel for the Applicant as well as the learned Counsel for the Respondents and perused the documents on record.

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The Original Application has been filed by the Applicant with the allegation that large scale forest land is being utilized for nonforestry purposes by encroaching, constructing buildings and structures etc. without the mandatory approval under Section 2 of the Forest (Conservation) Act, 1980 from the Central Government.

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It is stated that encroachments have been made on forest land amounting about 185 acres in Patia Village, Bhubaneswar which is used for purposes of other than forestry. The details of illegal

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encroachment of Forest Land for non-forestry use has been given in paragraph 4 which has been reproduced herein under:-

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“Mouza: P	atia Village in	Bhuban	eswar Tehsil u	nder Khurda District
Khatiyan:	493
Sl. No.	_Plot Number _	_Rakaba _	(Amount)	Kisam/Category
_1. _	3	22	630	Jungle
_2. _	4	3	660	Jungle
_3. _	5	0	490	Jungle
_4. _	7	0	510	Jungle
_5. _	8	0	270	Jungle
_6. _	9	0	410	Jungle
_7. _	10	0	040	Jungle
_8. _	11	0	470	Jungle
_9. _	12	6	980	Jungle
10.	13	0	240	Jungle
11.	14	1	100	Jungle
12.	15	1	270	Jungle
13.	16	0	080	Jungle
14.	17	0	060	Jungle
15.	18	1	950	Jungle
16.	19	0	050	Jungle
17.	96	3	760	Jungle
18.	_294 _	5	260	Jungle
19.	295	0	830	Kanta Jungle
20.	296	0	430	Gramya Jungle
21.	298	0	580	Gramya Jungle
22.	_301 _	0	930	Jungle
23.	308	8	560	_Jungle-2 _
24.	309	13	750	_Jungle-2 _
25.	311	14	820	Jungle-2
26.	312	8	370	Jungle
27.	315	13	940	Jungle-2
28.	318	3	320	_Jungle-2 _
29.	320	1	050	Gramya Jungle
30.	321	2	090	Gramya Jungle
31.	323	0	340	Gramya Jungle
32.	324	2	540	Gramya Jungle
33.	325	0	120	Gramya Jungle
34.	326	0	100	Gramya Jungle
35.	327	1	250	Gramya Jungle
36.	328	0	250	Gramya Jungle
37.	329	0	900	Gramya Jungle
38.	330	3	400	Gramya Jungle
39.	331	2	180	Gramya Jungle
40.	332	0	390	Gramya Jungle
41.	313	5	330	Jungle
42.	314	1	140	Jungle
43.	317	0	700	Gramya Jungle
44.	349	2	500	Jungle
45.	422	2	690	Jungle
46.	434	0	790	Kanta Jungle
47.	436	0	320	Kanta Jungle
48.	441	1	707	Jungle
49.	502	1	870	Jungle
50.	510	0	570	Gramya Jungle

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51.	516/1675	0	500	Jungle-2
52.	536	0	330	Gramya Jungle
53.	540	0	610	Gramya Jungle
54.	584	3	000	Jungle
55.	585	8	440	Jungle
56.	586	0	390	Jungle
57.	1228	0	670	Gramya Jungle
58.	1421	13	690	Jungle
59.	1438	0	400	Gramya Jungle

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It is also alleged that Industrial Infrastructure Development Corporation (IDCO) has illegally transferred of 260.62 acres of forest land in Chandaka Industrial Estate to various industrial houses.

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Reference has been made of a report of the Comptroller and Auditor General of India, General and Social Sector, Vol-3 Report dated March, 2012. It is stated that audit scrutiny revealed that in two Industrial Estates (IE) (Chandaka and Mahisapat), out of 267.620 acres of land valued of Rs. 1304.29 crores belonging to forest category, 259.471 acres land valued at Rs. 1297.35 crores was allotted to 139 industrial units as of March, 2012 without obtaining requisite clearance from the Ministry of Environment, Forests and Climate Change. In reply to an RTI application (Annexure-3 of the paper book) the IDCO has accepted that 262 acres of forest land (Jungle and Jungle 2 Kisam) are involved in Chandaka Industrial Estate.

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Notices were issued to the respondents and counter-affidavits have been filed by the Respondents.

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The Respondent No.5, IDCO, in its counter-affidavit dated 05.07.2017 has stated that in Revenue Mouza, Patia out of total

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sanctioned area measuring 707.93 acres, the status is as given

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below:-

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“Sl. No.	Rev. Plot No.	Khata No.	Areas Acres	Kissam
1	318/3371	474/1607	23.00	_Jungle-2 _
2	2	_474/1607 _	_95.94 _	Jungle
3	6	474/1607	86.68	Jungle
4	616/3372	_474/1607 _	55.00	Jungle-2
5	349 Corresponding to Govt. in G.A. Deptt. IDCO moved to G.A. Deptt. For alienation of above land in its letter no. 18264 dated 3.09.2010	493	2.50	Gramya Jungle

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It is also stated that land measuring an area of 55.00 acres in revenue plot No.616/3372, Khata No.474/1607 was allotted to different units. The forest land measuring 260.62 acres in Mouza, Patia under Bhubaneswar Tahasil in the district of Khurda has been transferred for which final proposal for diversion under forest land has been submitted before the Additional Principal Chief Conservator of Forests, Bhubaneswar vide letter dated 02.07.2014.

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An additional affidavit dated 02.08.2017 has been filed by Tahasildar, Bhubaneswar, Dist. Khurda wherein it is stated that on receiving notice of the case of the original application from the Tribunal, the Collector & District Magistrate, Khurda constituted a Joint Verification Committee comprising of the following members:-

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Sub-Collector, Bhubaneswar : Chairman 2. Asst. Conservator of Forests (Enforcement) : Member 3. Tahasildar, Bhubaneswar : Member

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Range Officer, Bhubaneswar Wildlife Range : Member

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Representative of IDCO : Member

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A counter-affidavit dated 02.08.2017 has been filed by Respondent No.3, Divisional Forest Officer bringing on record a letter dated 23.06.2017 (Annexure-A/3 of the paper book). A perusal of this letter clearly shows that no application for diversion of forest land has been received from the Odisha Industrial Infrastructure Development Corporation (IDCO), Bhubaneswar. The document Annexure C/3 dated 17.02.2016 issued by the Divisional Forest Officer, Chandaka Wildlife Division, Bhubaneswar discloses that the proposal for diversion submitted to the Additional Principal Chief Conservator of Forests, Odisha has been returned for resubmission, since no documents were submitted along with the request for diversion.

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An additional affidavit dated 26.09.2017 has been filed by Respondent No.2, Tahasildar, Bhubaneswar, District Khurda stating that the Record of Rights (ROR) position in respect of the land in question reads as under:

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“Mouza-Patia, PS- New Capital, PS No.22

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Khata No.	Plot No.	Area	Kisam
493 (Rakhit)	3	Jungle	Ac.22.63
	4	Jungle	Ac.3.66
	5	Jungle	Ac.0.49
	7	Jungle	Ac.0.51
	8	Jungle	_Ac.0.27 _
	9	Jungle	Ac.0.41
	10	Jungle	_Ac.0.04 _
	11	Jungle	Ac.0.47
	12	Jungle	Ac.6.98
	13	Jungle	Ac.0.24
	14	Jungle	Ac.1.10
	15	Jungle	_Ac.1.27 _

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16	Jungle	Ac.0.08
294	Kanta Jungle	Ac.5.26
295	Gramya Jungle	Ac.0.83
296	Gramya Jungle	Ac.0.43
298	Jungle	Ac.0.58
301	_Jungle-2 _	Ac.0.93
308	Jungle-2	Ac.8.56
309	_Jungle-2 _	Ac.15.75
311	_Jungle-2 _	Ac.14.82
312	_Jungle-2 _	Ac.8.37
315	_Jungle-2 _	Ac.13.94
318	Jungle-2	Ac.31.32
320	Gramya Jungle	Ac.1.05
323	Gramya Jungle	_Ac.0.34 _
321	Gramya Jungle	Ac.2.09
_324 _	Gramya Jungle	_Ac.2.54 _
325	Gramya Jungle	Ac.0.12
326	Gramya Jungle	Ac.0.10
327	Gramya Jungle	Ac.1.25
328	Gramya Jungle	Ac.0.25
329	Gramya Jungle	Ac.0.90
330	Gramya Jungle	Ac.3.40
_331 _	Gramya Jungle	Ac.2.18
332	Gramya Jungle	Ac.0.39
313	Jungle	Ac.5.33
314	Jungle	Ac.1.44
317	Gramya Jungle	Ac.0.70
422	Jungle	Ac.2.69
441	Jungle	Ac.25.30
502	Jungle	Ac.1.87
510	Gramya Jungle	Ac.0.80
516/1675	Jungle-2	Ac.0.50
536	Gramya Jungle	Ac.0.33
540	Gramya Jungle	_Ac.0.61 _
584	Jungle	Ac.300
585	Jungle	Ac.8.44
586	Jungle	Ac.0.39
1228	Gramya Jungle	_Ac.0.67 _
1421	Jungle	Ac.13.69
1438	Gramya Jungle	Ac.0.40

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It is also stated that an area measuring 707.93 acres of land

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has been leased out in favour of IDCO by the Collector, Puri vide letter dated 22.01.1986 in W.L. Case No.6/83, since at that point of time Government land in Village-Patia was under the administrative control of the then Revenue & Excise Department, Government of Odisha.

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Another affidavit dated 04.12.2017 has been filed by the Respondent No.5, Odisha Industrial Infrastructure Development

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Corporation (IDCO) wherein it has been stated that in respect of land measuring 707.93 acres process of alienation was initiated and out of this area of 707.93 acres, 260.62 acres was recorded as Jungle as per the 1973 Record of Rights (ROR). It is also stated that on Plot No.516 only ten mango trees were standing. Likewise Plot No.2, 318, 516 and 6 were also recorded as ‘Jungle’.

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An additional counter-affidavit dated 04.12.2017 has been filed by Respondent No.5 to the same effect.

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An affidavit dated 02.08.2021 has been filed by Respondent No.2, Collector-cum-District Magistrate, Khurda. Along with this affidavit the Enquiry Report of the Committee constituted by the Tribunal has been filed. The Report of this Committee is being reproduced herein below for proper appreciation of the case:-

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“Enquiry report in connection with the orders passed by the Hon’ble National Green Tribunal, Eastern Zone Bench, Kolkata in OA No.100/2017/EZ in the matter of Subash Mohapatra vrs. State of Odisha and other.

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1. As per the orders passed by the Hon’ble National Green Tribunal, Eastern Zone Bench, Kolkata in OA No.100/2017/EZ in the matter of Subash Mohapatra vrs. State of Odisha and Ors., Collector and District Magistrate, Khordha has constituted a committee vide letter No.8747 dated 27.07.2017 and No.10075/Judl. Dated 24.07.2017 comprising the following members to ascertain the present status of land and alleged encroachment of forest land relating to Mz-Patia under Bhubaneswar Tahasil by violating the provisions of the Forest (Conservation) Act, 1980.

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1. Sub-Collector, Bhubaneswar:-Chairman

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2. Asst. Conservator of Forests (Enforcement):-Member

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3. Tahasildar, Bhubaneswar:-Member

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4. Range Officer, BBSR Wildlife Range:-Member

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5. Representative of IDCO:-Member

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6. Representative of GA and PG Deptt.

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2. The village-Patia was earlier under the control of the Revenue & Disaster Mangement Deptt. As per the Notification No.3205 dated 05.09.1988 of H&UD Deptt., the village came under the control of the General Administration Deptt. Accordingly, GA Deptt. is custodian of all government land in village-Patia as per the Odisha Government Rules of Business with effect form 05.09.1988.

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3. The village-Patia is also coming under Bhubaneswar Development Authority (BDA) since 01.09.1983. Comprehensive Development Plan (CDP) of all the revenue villages under Bhubaneswar Municipal Corporation including village-Patia has been prepared by the Development Authority. The area involved in the case has been earmarked for special industrial zone and institutional zone.

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4. Government land measuring Ac. 707.930 dec. relating to Mz-Patia was leased out in favour of Managing Director, Odisha Industrial Infrastructure Development Corporation (Now IDCO) vide lease sanction Order No.560/Rev dated 24.10.1986 of Collector, Puri. The lease was sanctioned for establishment Chandaka Industrial Nucleus Complex as per the orders passed by the Competent Authority i.e. Collector, Puri in the Waste Lease Case No.6/1983. The lease case was initiated by the Tahasildar, Bhubaneswar on 15.01.1983 on receipt of the requisition from IDCO. Before submission of the lease records for sanction of lease, field enquiry was conducted by the Sub-Divisional Officer, Bhubaneswar to ascertain the field position in

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respect of the Plot No.2,318,516 and 6 recorded in Jungle classification in the ROR finally published by the Settlement Authorities on 06.12.1973.

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5. The Order of the Sub-Divisional in the case records indicate that there was no forest growth except 10 mango trees over Plot No.516. During field verification, it is ascertained that out of total forest land measuring Ac 260.620 dec. area measuring Ac 196.779 dec. has been leased out in favour of 144 entrepreneurs on payment of premium as per guidelines issued by IDCO. The entrepreneurs have set up industries, business enterprises offices and thus generated employment opportunities for the youth thereby fulfilling its statutory mandate of providing development of industrial infrastructure in the State for promotion of Industries.

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6. IDCO has development the area and leased out to different entrepreneurs for industrial development and creation of employment opportunities. In this connection, it is indicated that Forest (Conservation) Act, 1980 came into force on 25.10.1980. The implementation of the Act was made in letter and spirit after the judgment dated 12.12.1996 passed by the Hon’ble Apex Court in WP (C) No.202/1995 in the matter of T.N. Godaverman vrs. Union of India and others.

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7. During field visit, encroachment in different forms were noticed. Steps have been taken by enforcement agencies of different Departments such as General Administration Deptt., Bhubaneswar Development Authority and Bhubaneswar Municipal Corporation for eviction of the unauthorized occupants over Government land following due process of law.”

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The Respondent No.2, Collector and District Magistrate, Khurda in his affidavit dated 27.09.2021 has reiterated the facts which are already on record namely that out of 707.93 acres of land

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allotted in favour of IDCO, 260.62 acres was recorded as Jungle as per 1973 final Record of Rights (ROR).

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An additional affidavit dated 24.11.2021 has been filed by IDCO wherein it is admitted that the Divisional Forest Officer (DFO), Chandaka Wildlife Division vide his letter dated 17.02.2016 had returned the proposal for diversion of forest land for resubmission of the same online through Parivesh Website as per the guidelines issued by the Ministry of Environment, Forests and Climate Change in its letter dated 27.10.2014. The DFO, Chandaka Wildlife Division had also directed IDCO to resubmit the required documents namely:

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(a) Demarcation of Map of land for Compensatory Afforestation;

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(b) DGPS Survey Map of proposed forest area for diversion;

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The IDCO further stated that a proposal for diversion has been submitted online through requisite portal on 12.08.2021. The DGPS survey of the forest area proposed for diversion has been completed and RCC pillars have also been installed. The Gram Sabha is not required since the area falls under the Bhubaneswar Municipality Corporation. It is also stated that for purposes of Compensatory Afforestation, the IDCO has taken steps before the Revenue Authorities for identification of suitable land.

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It is also stated that on 16.08.2021, the IDCO addressed a letter to the Collector & District Magistrate, Boudh seeking issuance of consent letter for purposes of alienation of the proposed land measuring area 578.69 acres in Village-Tarbha, Boudh for purposes of Compensatory Afforestation.

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It is further stated that Collector & District Magistrate, Boudh vide his letter dated 19.08.2021 has intimated to IDCO that land measuring 664.230 acres of Revenue Forest Land having Jungle Kissam has been selected in Kantamal Tahasil of Boudh for purposes of Compensatory Afforestation for diversion of forest land in Chandaka Industrial Estate. Pursuant thereto, the Chief General Manager (Environment) visited Boudh and discussed about the land for Compensatory Afforestation with the Collector & District Magistrate, Boudh, Divisional Forest Officer (DFO), Boudh Forest Division. On joint verification of the identified land with the officials on 08.09.2021 and 09.09.2021 it was noticed that some portion of the area identified for Compensatory Afforestation has vegetation cover of more than 40% which cannot be accepted by MoEF&CC for Compensatory Afforestation. The Collector & District Magistrate, Boudh and Divisional Forest Officer, Boudh Forest Division were once again requested to identify alternate suitable patches of land for purposes of Compensatory Afforestation.

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The IDCO in its affidavit dated 09.11.2021 has further stated that the Tahasildar, Kantamal intimated that an area measuring 401.00 acres has been identified in Kantamal Tahsil for

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Compensatory Afforestation and accordingly, the Divisional Head, IDCO, Bolangir was requested to coordinate the demarcation of land with the Forest & Revenue Officials. It is also stated that on 17.11.2021, the Collector, Boudh has also intimated to the IDCO that an area of 265.257 acre of non-forest land under Harabhanga Tahasil has been identified for purposes of Compensatory Afforestation. A request has been made to the Divisional Forest Officer, Boudh for identification of the land with the Revenue Officials by requesting the Odisha Space Application Centre (ORSAC) to take up DGPS survey. It is further stated that the area required for Compensatory Afforestation is more than 500.00 acres. It is also stated that after finalization and demarcation of the land, the Odisha Space Application Centre (ORSAC) would conduct DGPS survey of the land which will be uploaded on the Parivesh Website. The document filed in support of the affidavit affirmed the averments made therein.

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In this view of the matter, this Original Application is disposed of with the direction to the Respondent No.5, IDCO, along with the Divisional Forest Officer, Chandaka Wildlife Division and the State Respondents to ensure DGPS survey of the area is completed in concert with the Odisha Space Application Centre (ORSAC) within a period of one month. On completion of such DGPS survey, the same shall be uploaded by IDCO along with all other requisite documents on the Parivesh Website as per guidelines issued by the MoEF&CC vide letter dated 27.10.2014 within a further period of one month. The IDCO is further directed to obtain the forest clearance from the

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Ministry of Environment, Forests and Climate Change within four months from the date of this order.

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IDCO, Odisha is further warned that in future, proposals for forest clearance should be done on time and any laxity on their part will be viewed seriously by the Tribunal.

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Needless to say that the Respondent No. 5 will be liable for Compensatory Afforestation and for fulfillment of all other liabilities including Penal Net Present Value (NPV) as the process of such conversion of Forest land to non forest may entail.

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In view of the above, the Original Application No.100/2017/EZ stands disposed of.

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There shall be no order as to costs.

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....................................... B. AMIT STHALEKAR, JM

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...................................... SAIBAL DASGUPTA, EM

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Kolkata, March 25, 2022, Original Application No. 100/2017/EZ MN

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Subash Mohapatra v. State of Odisha through Chief Secretary Govt. of Odisha

Case brief

What is this about?

What did the court decide?

Subash Mohapatra v. State of Odisha through Chief Secretary Govt. of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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