GOA FOUNDATION Vs. CONSERVATOR OF FORESTS

JUDGEMENT

(1.) THE petitioners are a registered society and are working in the field of environment with the object to maintain ecological balance. The petitioners are public spirited body and for the purpose of preservation of environment have approached this Court by way of this petition. The petitioners challenge the developmental activity being carried out by respondent No. 9 Tata Housing Development Co. Ltd. , in Survey No. 69/4 of village Penha de Franca of Bardez Taluka and seek to challenge various permissions granted for the said developmental activity which is contrary to the provisions of the Forest (Conservation) Act, 1980, (hereinafter called F. C. A. 1980 ).

(2.) THE petitioners case is that Survey No. 69/4 is forest and non-forest activity therein is not permissible unless prior permission is taken from the Central Government under the F. C. A. 1980. The petitioners also challenge alteration of Survey No. 69/4 from A-1 (Agricultural and Orchard (Natural Reserve) Zone and A-2 (Agricultural and Natural Reserve Zone) to S-2 (Settlement Zone) for planning purpose in the Outline Development Plan prepared under the Goa, Daman and Diu Town and Country Planning Act, 1974, (hereinafter called the 1974 Act ). This alteration was done after calling objections vide Notification published in the Official Gazette dated 9th June, 1994, Series III, No. 10, Government of Goa. Accordingly, an area of 11275 sq. metres of Survey No. 69/4, subject to permissible gradient was altered for the purpose of planning from A-1 and A-2 to S-2 vide Notification published in the Official Gazette dated 9th November, 1995, Series III No. 32, Government of Goa. Even prior to this publication in the Official Gazette, the Chief Town Planner vide letter dated 5-10-95 (Exh. C at page 31 of the petition) had informed respondent No. 8 that the change of use of land from A-1 and A-2 to S-2 Zone had been approved by the Government in relation to an area of 11275 sq. metres and final Gazette Notification would be issued separately.

(3.) RESPONDENT No. 9 on 8-1-96 obtained sanad from the Deputy Collector (S. D. O. , Mapusa, Goa) under section 32 of the Goa, Daman and Diu Land Revenue Code, 1968, for permission to use Survey No. 69/4 for the purpose of residential/commercial. It is to be noted here that even though for the purpose of planning in the Outline Development Plan Survey No. 69/4 had been altered from A-1 and A-2 to S-2 (Settlement Zone), yet the Deputy Collector granted sanad for the purpose of residential/commercial. For the purpose of commercial use, Regulation 26 of PDA (Development Plan) Regulations framed under the said Act of 1974, provides for Commercial Zone which is classified as C-1, C-2 and C-3. The sanad was granted subject to the condition that no tree shall be cut without the approval from the competent authority and cutting of hill should be avoided as far as possible and, if necessary, protective measures shall be taken so as not to destablise the slope. On 9-3-96 licence for construction of residential building complex was obtained in favour of Mr. Levin Da Costa, partner of respondent No. 11 from Sarpanch, Village Panchayat, Penha de Franca, Bardez, Goa. In this licence also besides other conditions it was provided that trees shall not be cut without permission from the competent authority and the cutting of slope shall be avoided and wherever necessary protective measures shall be taken so not to destablise the slope. The Town Planner vide letter dated 20th September, 1996 (Exh. G at page 39 of the petition) approved revised licence granted by the Sarpanch, Penha de Franca, Bardez, Goa with certain conditions. However, vide letter dated 19-11-96 (Exh. G-2 Colly.) of the Town Planner which is at page 39a of the petition to the Sarpanch, Village Panchayat Penha de Franca, an additional condition was imposed namely that the natural cover/landscape formed by trees as seen from the river Mandovi shall not be disturbed in any fashion while carrying out the development/construction. Accordingly, the Sarpanch, Village Panchayat, Penha de Franca, vide letter dated 21-11-96 (Exh. G-2 Colly.) which is at page 39-b of the petition, informed Anand Bandiye, Power of Attorney Holder of Levin Da Costa, partner of respondent No. 11 of the said condition that natural cover/landscape formed by trees as seen from river Mandovi shall not be disturbed in any fashion while carrying out the development/construction. It may be mentioned here that on 4-2-94 an agreement for sale was executed between Sterline Landmarks Pvt. Ltd. of one part, Levin Da Costa and Ralph Da Costa of the second part and Manohar Bhandiye and his children as confirming parties in terms of which an area of 11275 sq. m. from Survey No. 69/4 was agreed to be sold to Levin Da Costa and Ralph Da Costa. Out of the total area of Survey No. 69/4 which was to the tune of 12325 sq. m. an area of 1050 sq. m. had been previously separated and sold to Gurudwara Shri Guru Singh Sabha on 14-4-80.