SC Issues Notice On Plea Challenging NGT Order Directing Removal of Encroachments in 'Forest Like Areas' Of Maharashtra Without Ministry's Approval

A division Bench of Justice Nageswara Rao and Ravindra Bhat has also directed that no coercive action is to be taken against petitioner.

During the hearing today, Senior Adv Devadatt Kamat appearing on behalf of the petitioner submitted that despite a report stating that there is an overlap between village land and forest land, the Tribunal did not consider and directed that the encroachments be removed with no prior approval.

"We have been in possession from many years. We made representation to the Chief Conservator pursuant to the notice issued to us. NGT says government will do the verification and we will be thrown off? Principles of natural justice have to be followed." Kamat added.

"Who is authorised to remove encroachment? It must be the Collector. We will say they will issue notice and hear you before the removal. Were you a party before the Tribunal?" – the Bench asked.

Mr. Kamat informed the Court that they were not even heard before the Tribunal. He added that the issue of overlap needs to be decided by the government after hearing the petitioners.

The present appeal has been filed challenging the order dated 27^th October 2020 passed by National Green Principal Bench, New Delhi where NGT while considering the issue of non-forest development activities in the 'forest alike areas' in Mahabaleshwar and Panchgani Region in Maharashtra and directing for completion of the verification process of such areas by the authorities held that in respect of such areas as are found to be encroached in violation of the Forest (Conservation) Act, 1980, the Collector, Satara and the Forest Department may straightaway proceed to remove the encroachments for which no approval of MoEF&CC will be required, even if such area is part of the ESZ.

According to the petitioners, the order directing authorities to straightaway proceed to remove the encroachments with no prior approval is contrary to the most basic notions of natural justice as the petitioner and such other similarly situated agriculturalists will be deprived of their rightful possession of their lands in noncompliance of procedure established by law.

The plea has made note of the NGT's order dated 13^th March 2019 directing constitution of a Joint Committee comprising of representatives of Chief Conservator of Forest, Kolhapur and Divisional Commissioner, Pune to examine the aspect of which area is covered by the expression 'forest' in the light of the Supreme Court's judgement in the case of T.N.Godavarman Thirumalpad Vs. Union of India & Ors. On 27^th October 2020, NGT issued the impugned order, holding that no further procedure remained to be followed except verification. directing that the verification process be completed by 31^st January 2021. The areas found to be encroached upon in violation of the Forest (Conservation) Act, 1980, the Collector, Satara were directed to be removed by the Forest Department with no requirement of the Ministry's approval even if such area is part of the ESZ.

According to the petitioner, the NGT's order is contrary to the principles of natural justice in so far as it allows the Collector and the Forest Department to carry out removal of encroachment without providing an opportunity to the individual stakeholder and plot-owner of being heard. It is contrary to the principles of "audi alteram partem" in so far as it authorises the demolition in the area subsequent to identification and verification without leaving any opportunity to the individual stakeholder and plot-owner of presenting their case.

The plea has contended that NGT's order in so far as it empowers the demolition by the Collector, Satara and the Forest Department without prior approval by the Ministry of Environment, Forest and Climate Change even in the ESZ is contrary to law and unsustainable. The judgment has been passed without considering the law laid down by the Apex Court in the case of Hanuman Laxman Aroskar and Ors. vs. Union of India (UOI) and Ors. (2019) where the Court while considering the significance of decision making on merits as per the jurisdiction vested in the NGT held that the failure to consider materials on a vital issue and indeed the non-consideration of vital issues raises a substantial question of law leading to the invoking of the jurisdiction of the Supreme Court Under Section 22 of the NGT Act.

The plea further alleged that the National Green Tribunal did not appreciate that as per the report of the Chief Conservator of Forest, it was stated that noted that Government notified gaothans (Village sites) overlap the forest alike areas and thus it was found necessary to revisit the survey carried out by the Land Record Department. Without considering the aid submission that re-survey of the area was required, NGT proceeded to direct removal of encroachment straightaway subsequent to verification.

The present petition has been filed by Advocate Pai Amit on behalf of the petitioners.