Dismissed

Dasarathi Swain S/O Mani Swain Aged About 32 Years v. Chief Secretary Government of Odisha

NGT9 May 2024IA No. 36/2024 in Original Application No. 106/2022

Case brief

AI extract

What is this about?

The applicant alleged road construction on forest land without clearance. The court found the contested restoration work affected non-forest Rasta plots. Dismissing the application for lack of merit as no diversion of forest land was required and prior directions cover future widening scenarios.

What did the court decide?

The original application dismissed. Interim applications disposed of accordingly.

Dasarathi Swain S/O Mani Swain Aged About 32 Years vs… — Environment and Pollution | NGT (2024)

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Court No.1

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Item No.11

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BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA

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(THROUGH PHYSICAL HEARING WITH HYBRID MODE)

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Original Application No.106/2022/EZ

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(I.A. No.36/2024/EZ)

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IN THE MATTER OF:

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Dasrathi Swain, S/o Mani Swain, Aged about 32 years, R/o Gudupangi, Malisahi, P.S.-Nayagarh Sadar, District-Nayagarh,

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…Applicant(s)

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Versus

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State of Odisha, Represented by Chief Secretary, Government of Odisha, Lokaseva Bhawan, Bhubaneswar

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Additional Chief Secretary, Forest and Environment Dept. Government of Odisha, Kharavela Bhawan, Bhubaneswar, Odisha, Pin - 751001

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Executive Engineer Rural Works Division, Nayagarh II, At/PO/Dist- Nayagarh, Odisha,

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Collector & District Magistrate, Nayagarh, At/PO/Dist- Nayagarh.

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Divisional Forest Officer, Nayagarh At/PO/Dist.- Nayagarh,

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Superintendent of Police, Nayagarh, At/PO/Dist.- Nayagarh,

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Secretary, Ministry of Environment and Forest, Climate Change, Indira ParyabaranBhawan, Jorbag, New Delhi – 110003,

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…Respondent(s)

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Date of hearing: 09.05.2024 CORAM: HON’BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER HON’BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER

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For Applicant(s) : Mr. Sankar Prasad Pani, Advocate a/w Mr. Ashutosh Padhy, Advocate (in Virtual Mode)

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For Respondent(s) : Ms. Saswata Patnaik, AGA for R-1-6, (in Virtual Mode) Mr. Anup Kumar Bose, Advocate (in Virtual Mode) a/w Mr. Arpit Sikdar, Adv. in I.A.36/2024/EZ, (in Virtual Mode)

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ORDER

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Mr. Sankar Prasad Pani assisted by Mr. Ashutosh Padhy, learned Counsel is present for the Applicant.

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This Original Application has been filed by the Applicant with the allegation that road from Balabhadrapur to Dhipmal is being constructed on Plot Nos.773 and 9 in Khata No. 510, Kissam Gramya Jungle in Gudupangi Mouza of Nayagarh District.

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The contention of the Applicant is that this land having an area of 53.69 Acres and 8.94 Acres respectively is Revenue forest land (Gramya Jungle) but no Forest Clearance has been obtained as required under Section 2 of the Forest (Conservation) Act, 1980.

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Earlier also an Original Application No.12/2021/EZ had been filed in respect of Khata No. 510, Plot No.773 of Gudupangi Mouza for the same area on the same allegations and the said Original Application was dismissed and it was directed that in the eventuality of using portion of revenue forest land for construction purpose either for widening of road and black topping then necessary clearances for diversion of forest land for non-forest purpose under Section 2 of the Forest (Conservation) Act, 1980, besides obtaining consent of Gram Sabha under Forest Rights Act, 2006, be taken in accordance with law.

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Para-17 of the order of the Tribunal dated 29.09.2021 reads as under:-

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“The Original Application No.12/2021/EZ is devoid of merits and same is accordingly dismissed. We, however, make it clear that in the eventuality of using the portion of revenue forest land for construction

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purpose by either widening of road and black topping then necessary clearances for diversion of forest land for non-forest purpose under Section 2 of the Forest (Conservation) Act, 1980 besides obtaining consent of Gram Sabha under Forest rights Act, 2006 be taken in accordance with law.”

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Section 2 of the Forest (Conservation) Act, 1980, also reads as

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under:-

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“2. Restriction on the de-reservation of forests or use of forest

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land for non-forest purpose- 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—

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(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:

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(ii) That any forest land or any portion thereof may be used for any non-forest purpose.

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(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,

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(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.

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Explanation.— For the purposes of this section “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for any purpose other than reafforestation.

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(a) the cultivation of tea, coffee, spices, rubber, palms, oilbearing plants, horticultural crops or medicinal plants;

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(b) any purpose other than reafforestation,

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but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.”

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Allegations have also been made in paragraph-3 of the Original Application that Section 144 of Cr.P.C. has been imposed in the

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area by the Tahasildar, Nuagaon, to restrain the villagers from protesting the construction in question.

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The Applicant has also filed Annexure-3 (Page-32) to the Original Application which is the reply received to his RTI Application wherein it is clearly stated that no proposal for diversion has been received in the office of the Divisional Forest Officer, Nayagarh Division.

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Mr. Sankar Prasad Pani, learned Counsel states that the Applicant is not pressing Relief No. (C) with regard to the payment of compensation to the Gudupangi Village Assembly. We, therefore, dismiss this part of Relief No. (C) on the statement of the learned Counsel.

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On 26.08.2022 this court had directed the learned Counsel for the Applicant to place on record the order passed by the Hon’ble High Court of Orissa in Writ Petition No.21456 of 2017 as there was a reference to the said Writ Petition at page no.34 of the paper book.

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The Collector & District Magistrate, Nayagarh, Respondent No.4, has filed his counter-affidavit dated 03.09.2022 bringing on record the order dated 28.06.2022 passed by the Hon’ble High Court of Orissa in W.P. (C) No.21456 of 2017, which reads as under:-

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“ORDER

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28.06.2022

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1. None appears for the Petitioners who are claiming the relief which is contrary to the reliefs claimed in W.P.(C) No.35174 of 2020 vis-à-vis the same road.

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2. In the interest of justice, list on 22^nd September, 2022. ”

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This order of the Hon’ble High Court refers to another Writ Petition (C) No.35174 of 2020 and it has been observed by the Hon’ble High Court that the relief claimed in Writ Petition (C) No.21456 of 2017

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is contrary to the relief claimed in W.P.(C) No.35174 of 2020. The order dated 28.06.2022 passed in W.P.(C) No.35174 of 2020, copy of which has been filed at page no.67 of the paper book, only mentions that the case be listed along with W.P.(C) No.21456 of 2017. What was the subject matter of that Writ Petition has not been placed before us.

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However, the Applicant has filed rejoinder affidavit dated 02.02.2023 bringing on record an order dated 07.12.2023 passed by the Hon’ble Division Bench of the High Court of Orissa whereby by the W.P.(C) No.35174 of 2020 has been dismissed for nonprosecution. The order of the Hon’ble High Court dated 07.12.2023 reads as under:-

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“ORDER

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07.12.2023

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1. None appears for the Petitioners at the time of call.

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2. Mr. P.K. Parhi, learned Deputy Solicitor General for Opposite Party Nos.3 and 4, Mr. Debakanta Mohanty, learned Addl. Govt. Advocate for Opposite Party No.1 and 2 and Mr. Sankar Prasad Pani, learned counsel for Opposite Party Nos.12 to 14 are present.

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3. Since it is year-old matter, we are not inclined to grant further time. Accordingly, the writ petition is dismissed for non-prosecution.”

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The Collector & District Magistrate, Nayagarh, Respondent No.4, in his affidavit of 03.09.2022 has categorically stated that no attempts were being made for construction of road in the Gramya Jungle Plot of the village and only the existing passage is being sought to be restored through Block Administration and the restoration of this road is not touching the Gramya Jungle Plot except the plot recorded as Rasta Kissam under Sarbasadharana Khata. It is also stated that there is a long-standing dispute between the villagers of Gudupangi and 17 villagers of the vicinity and tribal inhabitants

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alleging collection of toll by the villagers of Gudupangi from the other 17 villagers during transportation of forest produce while using the said road. Criminal cases have also been filed by the villagers of other 17 villages against the villagers of Gudupangi.

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In the affidavit, it is further stated that the width of the Kutcha Road through the Gramya Jungle is less than 6 feet (+/- 2 feet), which is devoid of any trees or bushes. It is stated that initially there was a proposal for construction of Pradham Mantri Sadak Yojna (PMGSY) road on the existing road passing from Balabhadrapur to Dhipamal to provide easy connectivity for the tribal people of the locality which was vehemently opposed by the villagers of Gudupangi and the vehicle of the contractor was set on fire and the road was also blocked. At the same time, it is stated that, inhabitants of other 17 villages made Rasta Rok on Bhubaneswar Bolangir National Highway creating a law and order situation and, therefore, to put an end to the conflict, a realignment of the road has been made but this work also could not be completed as W.P. (C) No.35174 of 2020 was filed in the Hon’ble High Court of Orissa on the same ground that re-alignment road also passes through Gramya Jungle, Gochar and Private land.

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The Divisional Forest Officer, Nayagarh Forest Division, in his affidavit dated 03.09.2022 has stated that as per records available in the Division Office, the plots in question i.e., Plot No.773 and Plot No.9 of Khata No.510, of Gudupangi Mouza, is coming under the DLC report and the said plots are recorded as Village Forest in ‘Bhulekh’ Odisha. It is stated that no diversion proposal has been received for construction of road over these lands and no morrum is

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being excavated from the forest land inside the forest area for the purpose of road construction.

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It is categorically stated that no tree felling has been done inside the forest area. It is, however, stated that footpaths inside the forest are traditionally used by forest staff for foot patrolling and also by villagers of Nuasahi, Gochhabari, Dhipamal, Rajanpalli, Chakapathar, Masanijhola and Kankanpalli etc. as a route to their agricultural fields adjacent to this village forest.

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It is also categorically stated that the Department has neither received any proposal for construction of road inside the forest area from any department nor has any such work order been given for construction of road inside the forest area.

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Along with this affidavit, a letter of the Forest Range Officer, Nayagarh Range dated 02.09.2022 has been filed as Annexure-A, which mentions that the Forest Range Officer has inspected the site in question on the Plot No.773 and Plot No.09 of Khata No.510, Kissam-Gramya Jungle, Mouza-Gudupangi, and his observation is that no trees have been felled from the plots, there is no illegal excavation of morrum from the forest area, and there is no spreading of morrum on that road. It is also stated that the user agency has constructed the road and done levelling work outside the Gramya Jungle Plot.

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The Collector & District Magistrate, Nayagarh, Respondent No.4, has filed further affidavit dated 29.04.2024 reiterating the facts as mentioned in his previous counter-affidavit dated 03.09.2022 and it is further stated that in para 7 of that affidavit it was stated that the width of the Kutcha road passing through the Gramya Jungle Plot No.773 is 6 feet which was inadvertently mentioned and was a

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typographical error. It is stated that the width of the said Kutcha road over the Gramya Jungle in question is 6 meters and is being used as footpath by the local tribal people of 17 villages to enter into their agricultural land for cultivation, collection of forest produce and for other purposes. It is also stated that the width of the Kutcha road is not even or same throughout as there is growth of seasonal bushes, shrubs and meandering rain cut gullies. It is also stated that the JCB shown in the photographs was not used for uprooting trees grown on Gramya Jungle road but it was used for levelling the road on Plot Nos.774, 777, 1889, 2522 & 1889 recorded in the Record of Rights as ‘Rasta’, to remove the bushes and shrubs. It is also stated that restoration of road by gully plugging and mending the rain cuts was done without any widening and black topping on the land recorded as ‘Rasta’ (road) in the Record of Rights. It is stated that this restoration of road work was done over Plot No.1889/2522 (Kissam-Rasta), Plot No.1889 (Kissam-Rasta) corresponding to part of Sabik Plot No.1015 (Kissam-Godanda) and Hal Plot No.777 & 774 (Kissam-Rasta) corresponding to Sabik Plot No.381 (Kissam-Danda) coming under Government Sarbasadharan Khata No.509 of Village-Gudupangi and in the circumstances no forest diversion proposal was required under Section 2 of the Forest (Conservation) Act, 1980. It is categorically stated that the restoration road work has not touched the Gramya Jungle Plot i.e., Plot No.773 (Kissam-Gramya Jungle) and Plot No.9 (Kissam-Gramya Jungle) under Khata No.510 (Rakhita), Village-Gudupangi, which corresponds to Sabik Plot No.345 (Kissam-Jungle) and Sabik Plot No.76 (Kissam-Sarad Doyam Ek Fasal).

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The Applicant has also filed composite rejoinder dated 02.02.2023 denying the claims of the Respondents.

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I.A. No.36/2024/EZ has been filed by one Shri Jogendra Pradhan, S/o Late Baury Pradhan, R/o Dhenkana, P.O.-Malisahi, P.S./District-Nayagarh, Odisha, stating that he has been authroised by 75 villagers of different villages to file this I.A. and it is stated that Writ Petition No.35174 of 2020 had been filed in the nature of Public Interest Litigation (PIL) before the Hon’ble High Court of Orissa against the State of Orissa, Union of India and certain other statutory authorities and others, with a prayer to direct the opposite parties to make construction work of road from Balabhadrapur to Dhipamala as the 1^st sanctioned road project in PMGSY Scheme. It is stated that counter-affidavits have also been filed in the W.P. (C) PIL No.35174 of 2020 by the State Respondents as well as Union of India and Private Opposite Parties. It is further stated that Shri Jogendra Pradhan along with some others have also filed one I.A. No.3470 of 2024 in Writ Petition No.35174 of 2020 for restoration of the case which was dismissed for default on the grounds stated therein and the I.A. is still pending before the Hon’ble High Court. The Applicant of the I.A. No.36/2024/EZ has, therefore, prayed that he may be added in the present proceedings. 23. From the documents on record, it appears that the Original Application was filed by the Applicant on the apprehension that a road from Balabhadrapur to Dhipamal was being constructed through Gudupangi Gramya Jungle passing over Plot Nos.773 and 9 in Khata No.510, in Gudupangi Mouza of Nayagarh District and the said land was having an area of 53.69 acres and 8.94 acres respectively, which is recorded as Forest Land (Gramya Jungle) but

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no Forest Clearance has been obtained as required under Section 2 of the Forest (Conservation) Act, 1980, for diversion of the said plots for purposes other than forest use.

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We find that earlier also one Original Application No.12/2021/EZ ( Hemant Kumar Nayak Vs. State of Odisha & Ors. ) had been filed with regard to the same plot being Plot No.773, Khata No.518 of Gudupangi Mouza on the same allegation and the said Original Application had been dismissed by this Tribunal vide its order dated 29.09.2021 with a direction that in the eventuality of using the portion of revenue forest land for construction purpose by either widening of road and black topping, then necessary clearance for diversion of forest land for non-forest purpose under Section 2 of the Forest (Conservation) Act, 1980, besides obtaining consent to Gram Sabha under Forest Rights Act, 2006, be taken in accordance with law.

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The categorical stand of the State Respondents is that the road which is being re-aligned does not pass over Plot No.773 or Plot No.9, Khata No.510 of Gudupangi Mouza which is recorded as Gramya Jungle. The stand of the State Respondents further is that JCB was used for levelling the road on Plot No.774, 777, 1889/2522 and 1889 which is recorded as Rasta in the Record of Rights and the said JCB was used for removal of bushes and shrubs. It is also stated that the Plot No.1889/2522 is recorded as Kissam-Rasta, Plot No.1889 is recorded as Kissam-Rasta corresponding to part of Sabik Plot No.1015 (Kissam-Godanda) and Hal Plot No.777 & 774 as recorded Kissam-Rasta corresponding to Sabik Plot No.381 (Kissam-Danda), coming under Government Sabasadharan Khata No.509 of Village-Gudupangi, and since these

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plots were not recorded as Gramya Jungle, therefore, there was no requirement for obtaining Forest Clearance under Section 2 of the Forest (Conservation) Act, 1980, for use of these plots for purposes other than forest purpose. It is also the stand of the State Respondents that restoration of road work has not touched the Gramya Jungle Plot No.773 (Kissam-Gramya Jungle) and Plot No.9 (Kisssam-Gramya Jungle) under Khata No.510 (Rakhita) in VillageGudupangi, which corresponds to Sabik Plot No.345 (KissamJungle) and Sabik plot No.76 (Kissam-Sarad Doyam Ek Fasal). The stand of the State Respondents themselves is that Forest Clearance would be required under Section 2 of the Forest (Conservation) Act, 1980, for utilization of forest land for non-forest purposes.

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Mr. Anup Kumar Bose, learned Counsel appearing for the Applicants of the I.A. No.36/2024/EZ, on the other hand, submitted that the road must be allowed to be constructed over the plots in dispute to provide easy connectivity to the villagers of the area and that the villagers of the Gudupangi are raising unnecessary objections and obstructions to the construction of the said road.

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In our opinion, since the road restoration work is being carried on on plots which are other than Plot Nos.773 and 9 in Khata No.510 of Mouza-Gudupangi and over plots which are not Gramya Jungle, therefore, this Original Application has no merit. Even otherwise, so far as utilization of forest land for non-forest purposes requires Forest Clearance under Section 2 of the Forest (Conservation) Act, 1980, and the directions to that effect have already been given while disposing of the Original Application No.12/2021/EZ by the Tribunal vide its order dated 29.09.2021.

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In view of the above, the Original Application No.106/2022/EZ lacks merit and is accordingly dismissed.

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I.As. if any, stand disposed of accordingly.

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There shall be no order as to costs.

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B. Amit Sthalekar, JM

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….......................................... Dr. Arun Kumar Verma, EM May 09, 2024, Original Application No.106/2022/EZ (I.A. No.36/2024/EZ) AK

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Dasarathi Swain S/O Mani Swain Aged About 32 Years v. Chief Secretary Government of Odisha

Case brief

What is this about?

What did the court decide?

Dasarathi Swain S/O Mani Swain Aged About 32 Years v. 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

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