Disposed

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

NGT25 Mar 2022Original Application No. 65/2017

Case brief

AI extract

What is this about?

The Tribunal examined allegations of unauthorized use of forest land by KIIT and KIMS for constructing educational and medical facilities. It found the land was 'Jungle-II' and diversion proposals were pending. The Court directed IDCO to obtain forest clearance within four months and imposed liability for compensatory afforestation. (Note: Subject mapping for 'pension' is an artifact of the provid

What did the court decide?

Direction to IDCO to obtain forest clearance within four months; respondents held liable for compensatory afforestation and Penal NPV.

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

¶1

BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA

¶2

............ ORIGINAL APPLICATION No. 65/2017/EZ (M.A. No. 211/2017/EZ)

¶3

IN THE MATTER OF:

¶4

Subash Mohapatra, At –Khandual Vihar, PO-Sarakantar, PS-Khandagiri, Bhubaneswar, Khurdha, Odisha – 751019,

¶5

....Applicant(s)
Versus
1. State of Odisha,
Through Chief Secretary,
Govt. of Odisha,
Secretariat Building, Bhubanewsar,
Pin – 751001,

¶6

2. District Collector, Khurdha, At/PO-Khurdha, District-Khurdha,

¶7

3. Divisional Forest Officer, Chandaka Wildlife Division, Gajobihar, Bermunda, Bhubaneswar, Pin – 751003,

¶8

Secretary, Kalinga Institute of Industrial Technology,
At/Po-Campus-10, KIIT Campus,
Bhubaneswar, Khurdha, Odisha,
Pin – 751024,

¶9

5. Director,

¶10

Kalinga Institute of Medical Science,
Bhubaneswar, Odisha,
Pin – 751024,

¶11

¶12

6. Union of India, Through Secretary, Ministry of Environment, Forests and Climate Change, Indira Paryavaran Bhawan, Jorbagh, New Delhi – 110003

¶13

7. Orissa Industrial Infrastructure Development Corporation (IDCO), Through Managing Director, At/Po-IDCO Tower, Janpath, Bhubaneswar, Pin – 751022,

¶14

8. The Secretary, Department of Revenue and Disaster Management, Govt. of Odisha, ....Respondent(s)

¶15

COUNSEL FOR APPLICANT: Mr. Tushar Kumar Mishra, Advocate COUNSEL FOR RESPONDENTS :

¶16

Mr. Janmejaya Katikia, AGA for R-1, 2, 3 & 8, Mr. Prafulla Kumar Rath, Advocate for R-4 & 5, Mr. Gora Chand Roy Choudhury, Advocate for R-6 Mr. Suraya Prasad Mishra, Sr. Advocate a/w Mr. Lalit Kumar Maharana, for R-7

¶17

JUDGMENT

¶18

PRESENT:

¶19

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

¶20

__________________________________________________________________ Reserved On:-24^th February, 2022

¶21

Pronounce On:-25^th March, 2022

¶22

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

¶23

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

¶24

¶25

¶26

JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER)

¶27

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

¶28

This Original Application has been filed by the Applicant with the allegation of unauthorized use of forest land by Respondent Nos. 4 & 5, Kalinga Institute of Industrial Technology (in short ‘KIIT’), in constructing a building for its educational institution and medical college, without approval as required under Section 2 of the Forest (Conservation) Act, 1980 from the Central Government. It is alleged that the KIIT Medical College and Hospital building is constructed over Patia-Mouza, Bhubaneswar Tehsil, Khurdha District, Odisha, for an annual intake of 100 students at the undergraduate level as well as M.D. courses at post-graduate level. The educational institution known as ‘Kalinga Institute of Medical Science, (Respondent No.5 herein), is a constituent college of the KIIT University. It is stated that the Plot No. 516 in Patia-Mouza, Bhubaneswar Tehsil, Khurdha District, extending over an area of 55 acres is forest land mostly Jungle-II Kisam under Revenue Khata which has been encroached by the Respondent Nos. 4 & 5. It is stated that the said land is in the name of ‘Orissa Industrial Infrastructure Development Corporation’ (in short ‘IDCO’), Bhubaneswar, Respondent No.7 herein, and has been transferred by the IDCO in favour of the Respondent University. It is stated that the Comptroller and Auditor General in its report, copy of which has been filed as Annexure-2 to the Original Application, has noted

¶29

¶30

that the forest land under the possession of KIIT is 34.414 acres for which no Forest Clearance has been taken from the Ministry of Environment, Forests and Climate Change while the hospital building and structures were constructed on such land in blatant violation of the Forest (Conservation) Act, 1980. It is also stated that the General Administration Department of the Govt. of Odisha wrote to the Secretary KIIT for submitting a proposal for diversion of forest land of an area of 10.91 acres vide its letter dated 30.10.2012 (Annexure-3 to the Original Application). The Revenue Inspector of the General Administration Department, Govt. of Odisha inspected the land in question and reported that the entire area of 26.97 acres including 10.779 acres is surrounded by a compound wall and is being used for medical college, hospital hostel, staff quarters, playground and other related purposes.

¶31

The IDCO, Respondent No.7, in its affidavit dated 05.07.2017 has stated that the Collector Puri had sanctioned land measuring around 707.93 decimal in Mouza-Patia under Bhubaneswar Tehsil, District-Khurdha, in favour of IDCO for establishment of the Chandaka Industrial Nucleous Complex vide its order dated 24.01.1986 and a lease deed was also executed between the State Government and IDCO on 05.02.1982 in this regard. It is stated that the Revenue Plot No. 516/3372 under Khata No. 474/1507 measuring an area of 55 acres falls within the 707.93 acres of land. It is stated that IDCO developed the area of 707.93 acres including the area of 55 acres and allotted the same to different units. It is also stated that a proposal for diversion of forest land measuring

¶32

¶33

260.62 acres under Mouza-Patia under Bhubaneswar Tehsil, District-Khurdha, was submitted by the IDCO to the Central Government for grant of appropriate clearance under the Forest (Conservation) Act, 1980. The Principal Chief Conservator of Forest (PCCF), Odisha, forwarded the proposal for diversion to the Divisional Forest Officer, Chandaka Wildlife Division, vide memo dated 07.08.2014. The Divisional Forest Officer, Chandaka Wildlife Division, however, raised an objection against the Final Diversion Proposal and requested that RCC pillars be fixed for demarcation of the boundary of the identified Compensatory Afforestation land and forest land proposed for diversion for non-forest use. In the meantime, the KIIT was allotted land measuring 6.883 acres in pursuance of the recommendation of the Health and Welfare Department of Govt. of Odisha, vide memo dated 20.11.2003. This land is appertaining to the IDCO Plot No. 25 corresponding to Revenue Plot No. 20 (P) and Plot No. 320/3370(P) under Khata Nos. 491 and 493 vide allotment dated 25.02.2004 and corrigendum dated 27.02.2004 for the purpose of setting up of a 700 bed hospital.

¶34

There is a categorical averment that the aforesaid land allotted to KIIT comes within the total area of sanctioned land measuring 707.93 acres.

¶35

The Respondent Nos.4 & 5, in their counter-affidavit dated 24.10.2017 have stated that on Plot No. 516, there was no forest growth though in the Revenue Record the land is recorded as

¶36

¶37

‘Jungle-2’ and a lease deed of this land i.e., 707.930 acres, was executed by the Govt. of Odisha in favour of IDCO on 05.02.1986. The said land was thereafter developed by IDCO and then alienated to the Respondent Nos. 4 & 5. It is stated that the Government of Odisha, while executing the lease deed, did not disclose that the land in question was ‘Jungle-II’ Kisam.

¶38

The Tehsildar-Bhubaneswar, Khurdha District, in his affidavit dated 30.10.2017 has filed a Land Schedule of Mouza-Patia, P. S.

¶39

No. 22 which reads as under:-

¶40

*Khata No.*	*Plot No.*	*Area*	*Kisam*	*Recorded*
				*Tenant*
*474/1607*	*20(P)*	*Ac. 6.883*	*Pathartangi*	*Managing*
	*320/3370(P)*	*Dec*	*Patherbani*	*Director,*
	*516/3372(P)*	*Ac. 55.00*	*Jungle-II*	*IDCO*

¶41

In the said affidavit, it is not disputed that the said plots, to an extent of 707.93 acres in Village Patia, were leased out in favour of IDCO and IDCO has transferred the said land to various institutions including Kalinga Institute of Medical Science and Kalinga Institute of Industrial Technology (Respondent Nos. 4 & 5 herein).

¶42

An additional counter-affidavit dated 04.12.2017 has been filed on behalf of the IDCO, Respondent No.7, wherein it is stated that the Sub-Divisional Officer, Bhubaneswar, at the time of leasing out of the land in favour of IDCO, had conducted a spot verification of the said land but in his order dated 01.08.1985 there is no mention of any forest growth on the said land or even bushes

¶43

¶44

except that 10 mango trees were standing on Plot No. 516 valued at Rs. 5,000/-. The Sub-Divisional Officer, Bhubaneswar, thereafter recommended that advance possession of the said land be given to IDCO, Respondent No.7 herein. It is, however, stated that the SDO in his order dated 01.08.1985 had indicated that the Plot Nos.2, 318, 516 and 6 have been recorded as ‘Jungle’ in the Record of Rights in 1973. It is also stated that spot verification report of the Revenue Inspector, Kalarahanga in the year 1982 and the report of the Sub-Divisional Officer, Bhubaneswar of the year 1985 however showed that there was no forest growth over the land in question.

¶45

The stand of the Respondent No.7, IDCO, is that the land in question is not ‘Jungle Kisam’ but ‘Patita’. However, we may note that this stand taken by IDCO cannot dilute the effect or be in ignorance of the fact that process had been initiated for seeking Forest Clearance of this land, from the Forest Department, and that the Divisional Forest Officer, Chandaka Wildlife Division, had raised an objection regarding prior demarcation of pillars for land earmarked for Compensatory Afforestation as well as for forest land to be diverted for non-forestry purposes.

¶46

The Respondent No.3, Divisional Forest Officer, Chandaka Wildlife Division, Bhubaneswar, in his counter-affidavit dated 26.07.2018 has stated that the Plot No. 20, 320/3370, 516 Khata No. 474/1607 of Mouza-Patia, Tehsil-Bhubaneswar, DistrictKhurdha, does not come within the Chandaka-Dampara Wildlife Sanctuary or its Eco-Sensitive Zone and in any case these plots

¶47

¶48

have not been transferred to the Forest and Environment Department, Govt. of Odisha and, therefore, the said plots are beyond the jurisdiction of the Divisional Forest Officer, Chandaka Wildlife Division, Bhubaneswar.

¶49

It is however stated that in compliance of the orders of the Tribunal, a Committee was constituted by the Collector-Khurdha, headed by the Sub-Collector, Bhubaneswar and other Members who inspected the site and verified the records. As per the Committee report, 6.883 acres of land in Mouza-Patia, Khata No. 474/1607, Plot No. 20(P) and Plot No. 320/3370(P) Kisam Pathartangi and Patharbania was allotted for establishment of the Kalinga Institute of Medical Science. These plots were leased out along with other plots of Village-Patia in favour of IDCO and the Hal Record of Rights in respect of Village-Patia was finally published on 06.12.1973. The Plot No. 25 was allotted by IDCO in favour of Kalina Institute of Medical Science (a sister organization of KIIT’s) vide allotment order No. 3009 dated 25^th February, 2004 and corrigendum Memo No. 3205 dated 27^th February, 2004. It is specifically stated that these plots are non-forest land. The plots do not find place in the DLC report and are not covered by the directions given by the Hon’ble Supreme Court in W.P. (C) No. 202/1995; T. N. Godavarman Vs. Union of India & Ors.

¶50

We may refer to Annexure-C3 filed with the affidavit of the Divisional Forest Officer, Chandaka Wildlife Division, Bhubaneswar, wherein the plots in questions have been shown in the report of the

¶51

¶52

Committee constituted

¶53

by the Collector-District Magistrate-

¶54

Khurdha. The report of the Committee titled as ‘Status Report’ reads as under:-

¶55

“Present Status Report in O.A. No. 65 of 2017 filed by Sri Subash Mohapatra Vrs. State of Odisha and Others before the National Green Tribunal, Eastern Zone Bench, Kolkata

¶56

A Committee is constituted by the Collector and District Magistrate, Khordha vide Office Order No. 7702 dated 21^st May, 2018 for joint verification to ascertain the present status of forest kissam of land and construction activity for Kalinga Institute of Industrial Technology (KIIT) and Kalinga Institute of Medical Sciences (KIMS). The Committee headed by the Sub-Collector, Bhubaneswar and Members inspected the site and verified the records. A meeting was held with representative of IDCO in presence of Addl. District Magistrate, Bhubaneswar and DFO, Chandaka Wildlife Division on 29^th June, 2018.

¶57

1. Kalinga Institute of Industrial Technology (KIIT) :

¶58

i. Verification of records reveals that 24.26 acre of land in Mouza-Patia in Revenue Khata No. 474/1607 as detailed below was allotted in favour of Kalinga Institute of Industrial Training (KIIT).

¶59

*Sl.* *No.*	*IDCO Plot No.*	*Revenue Plot No.*	*Area in Ac.*
1	44	516/3372(P)	4.278
2	65 & 20B	516/3372(P)	5.913
3	28	516/3372(P)	4.828
4	31	516/3372(P)	1.550
5	44/C, D & E	516/3372(P)	3.214
6	20/A	516/3372(P)	2.000
7	-	516/3372(P)	2.477

¶60

¶61

Total 24.26

¶62

The HAL settlement ROR in respect of village Patia was finally published by the Settlement Authority on 06.12.1973. Thereafter area measuring Ac. 707.93 dec was leased out in favour of IDCO as per the orders passed in Waste Land Lease Case No. 6/1983. The land scheduled as indicated above were allotted in favour of IDCO measuring a total area of Ac. 24.26 dec in different points of time.

¶63

ii.

¶64

iii.

¶65

The classification of the aforesaid land is JungleII in the RoRs. IDCO has applied for diversion of forest kissam of land vide State Sl. No. 701 of 2014. The proposal could not be processed at the level. Of DFO, Chandaka Wildlife Division due to want to documents. The same was returned to the Chief General Manager, IDCO vide letter No. 803 dated 17^th February 2016 of DOF, Chandaka Wildlife Division for submission of diversion proposal through online as per guideline of Ministry of Environment, forests and Climate Change, Govt. of India.

¶66

In this connection it is not out of place to mention here that in the O.A. No. 100/20103/EZ involving the suit land is pending for adjudication before the Hon’ble National Green Tribunal, Eastern Zone Bench, Kolkata. In the said O.A., the Hon’ble Tribunal in the order dated 10.11.2017 has directed the allottees not to take up any development work. Accordingly, the parties are informed to abide by the orders passed by the Hon’ble Tribunal. Since the issue involved in O.A. No. 65/2017 and O.A. No. 100/2017 are same appropriate petition may be filed before the Hon’ble Tribunal for analogous hearing.

¶67

2. Kalinga Institute of Medical Sciences (KIMS):

¶68

¶69

Verification of records reveals that 6.883 acre of land in Mouza-Patia, Khata No. 474/1607, Plot No. 20(P) & 3202/3370(P), Kissam: Pathartangi & Patharbania was allotted for establishment of KIMS. The suit plot along with other plots of village Patia were leased out in favour of IDCO as per the orders passed in the W.L. Case No. 6/1983. It is pertinent to mention here that Hal ROR in respect of village Patia was finally published on 06.12.1973. The allotted area relates to IDCO Plot No. 25. IDCO has allotted the Plot in favour of Kalinga Institute of Medical Sciences (KIMS), sister organization of Kalinga Institute of Industrial Technology (KIIT) of vide allotment order No. 3009 dated 25^th February 2004 and subsequent corrigendum No.3205 dated 27^th February 2004. The suit Plots are non forest land. These plots are not found place in the DLC report in connection with the W.P.(C) No. 202/1995 in the matter of T.N. Godavarman Vrs. Union of India & Others.”

¶70

The Committee also notes that the classification of the land is ‘Jungle-II’ in the Record of Rights in respect of plots allotted to KIIT for which IDCO has applied for diversion of Revenue Forest Kisam of land. The proposal could not be processed due to objection of the Divisional Forest Officer, Chandaka Wildlife Division, Bhubaneswar, and was returned to the Chief General Manager, IDCO, vide letter dated 17.02.2016 for submission online for diversion to the Ministry of Environment, Forests and Climate Change. So far as Kalinga Institute of Medical Science is concerned, the report of the Committee shows that the Plot No. 20(P) and Plot No. 320/3370(P) in Khata No. 474/1107, Mouza-Patia, measuring area 6.88 acres is

¶71

¶72

Kisam Pathartangi and Patharbania. It is categorically stated that these plots are non-forest land and do not find place in the DLC report.

¶73

The Respondent No.7, IDCO, has filed its additional affidavit dated 10.08.2021 and has again reiterated its earlier contention that the Plot No. 516 is not a forest land Jungle Kisam but is Patita on which only 10 mango trees were standing.

¶74

The averments of the IDCO cannot belie the status report of the Committee constituted by the Collector which clearly records that the Plot No. 516 is forest land. In fact, it is own admission of IDCO in their affidavit that proceedings were initiated with the Government for diversion of this land from forest to non-forest under the provisions of the Forest (Conservation) Act, 1980, but because of the objection raised by the Divisional Forest Officer, Chandaka Wildlife Division, Bhubaneswar, the matter could not proceed further and the objection was also not resolved by IDCO to enable further processing of forest clearance. The Annexure-1 filed along with the additional affidavit of the IDCO also shows that the Chief General Manager, IDCO, has applied to the Divisional Forest Officer, Chandaka Wildlife Division for diversion of forest land measuring 105.473 hectares (260.62 acres) in six copies in VillagePatia, Bhubaneswar Tehsil, District-Khurdha. This fact stands confirmed by the averments made by the Divisional Forest Officer, Chandaka Wildlife Division in his affidavit dated 25^th September, 2021.

¶75

¶76

From the above analysis of the facts on record, we find that there is absolutely no dispute that the land in question, namely, Plot No. 516, Village-Patia, Tehsil-Bhubaneswar, District-Khurdha, is forest land and proposal for diversion of this land from forest to non-forest under the Forest (Conservation) Act, 1980, was pending before the Divisional Forest Officer, Chandaka Wildlife Division, Bhubaneswar as several objection regarding demarcation of forest land proposed for diversion and demarcation of land for Compensatory Afforestation in lieu of forest land diverted was raised by the DFO, Chankada Wildlife Sanctuary. Moreover, the proposal for grant of forest clearance is to be submitted online through the “Parivesh” portal of MoEF&CC which IDCO had not complied with. The matter was kept pending for almost five years by IDCO.

¶77

The Committee constituted by the Collector-Khordha, has itself noted that the proposal for conversion which was submitted by the IDCO to the Divisional Forest Officer, Chandaka Wildlife Division, Bhubaneswar, was returned for submission online with the Ministry of Environment, Forests and Climate Change.

¶78

At this juncture, we may refer to the provisions of the Forest (Conservation) Act, 1980. Section 2 of the Act, 1980 lays down that notwithstanding anything contained in any other law for the time being in-force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing that any reserve forest or any

¶79

¶80

portion thereof shall cease to be reserved and that any forest land or any portion thereof may be used for any non-forest purpose. Section 2 of the Act, 1980 reads as under:-

¶81

“2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose

¶82

Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing –

¶83

i) That any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;

¶84

ii) That any forest land or any portion thereof may be used for any non-forest purpose; iii) That any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

¶85

iv) That any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.”

¶86

Thus, what emerges from the statutory provisions of Act, 1980

¶87

is that the obligation for making an order for use of any land otherwise on reserve forest or forest land for non-forest purposes, lies exclusively in the domain of the State Government or authority with the prior sanction of the Central Government. The IDCO authority is created under the Orissa Industrial Infrastructure Development Corporation Act, 1980, therefore, the IDCO is by

¶88

¶89

definition ‘State’ within the meaning of Article 12 of the Constitution of India and IDCO having granted lease of the land in question and the same was alienated to KIIT, therefore, IDCO is liable to apply for such conversion of forest land for non-forest purposes.

¶90

In the connected Original Application No.100/2017/EZ directions have been given to IDCO, along with the Divisional Forest Officer, Chandaka Wildlife Division and the State Government to ensure DGPS survey of the area earmarked by DFO, Boudh for identification of land through Odisha Space Application Centre (ORSAC) and the survey report shall then be uploaded on the Parivesh Website. The directions given in Original Application No.100/2017/EZ shall be applicable in the present case also. The IDCO is further directed to obtain the forest clearance for the MoEF&CC within four months from the date of this order.

¶91

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.

¶92

Needless to say that the Respondent Nos. 4 & 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.

¶93

In view of the above, the Original Application No.65/2017/EZ is disposed of accordingly.

¶94

¶95

The M.A. No. 211/2017/EZ also stands disposed of.

¶96

There shall be no order as to costs.

¶97

..........................................
B. AMIT STHALEKAR, JM
.......................................
SAIBAL DASGUPTA, EM
Kolkata,
March 25, 2022,
Original Application No.65/2017/EZ
(M.A. No. 211/2017/EZ)
AK

¶98

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

Case brief

What is this about?

What did the court decide?

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

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Inacio Domic Pereira vs Dwarka Eco Beach Resort

Ramdas Ashok Dorge vs State of Maharashtra

Tanaji Balasaheb Gambhire vs Union of India through Ministry of Environment and Forest

Zulfukar Ali vs Delhi Development Authority

Suo Motu vs the Chief Secretary, Government of Tail Nadu

M.Gobineelan, Son of P.P.Mani vs the Secretary to the Government, Department of Environment and Forest, Government of Tamil Nadu

T.T.Rangasamy, President, Bhavani Nadhineer Matrum Nilathadi Neer Paadhuhaappu Kuzhu [ Bhavani River Water and Ground Water Protection Committee] vs State Government of Tamil Nadu, through Its Chief Secretary, Government of Tamil Nadu

Mr.D.Sateesh Kumar S/O. K. Damodaran vs State Government of Tamil Nadu, Rep. by Its Chief Secretary

Takam Xavier vs Ministry of Environment, Forest and Climate Change

Misc Application in disposed of cases No. 301/2017 in Original Application No. 114/2017 of Takam Xavier vs Ministry of Environment, Forest and Climate Change

Takam Xavier vs Ministry of Environment, Forest and Climate Change

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

Tribunal on Its Own Motion in Re Ozone Spike in Kolkata vs State of West Bengal and Others

Sri Rajesh Kumar Mandal vs Chief Secretary