R.P. Dholaria, J.@mdashThe present petition is filed by the petitioner praying for the following reliefs.
"(A) That this Hon''ble Court be pleased to admit and allow this petition and issue a writ of mandamus or a writ of prohibition or any other appropriate writ, calling for the relevant record from the respondents and after perusing the same be pleased to order an inquiry into the matter by constituting appropriate Commission/Committee or through local agency to inquire into the matter of compensatory afforestation land said to have been transferred to the Forest Department vide order dated 19th September 2007 (ANNEXURE ''F''); to ascertain ground situation and to find out whether the land which is stated to have been transferred in favour of the Forest Department under Compensatory Afforestation situated in the sim of Villages Sinapar and Kanar does exist as a forest land and further be pleased to direct them to ascertain who is in physical possession of the land in question admeasuring about 2008.41 hectares.
(B) That this Hon''ble Court be pleased to quash and aside the order dated 19th September 2007 (ANNEXURE ''F'') passed by the Collector-respondent No. 5 transferring the land (unsurveyed unnumbered) out of the marine area situated in north of Moje (Village) Kanar and Sinapar of Taluka Lakhpat, admeasuring 2008.41 sq meters to the Forest Department for the purpose of compensatory afforestation for Mundra Port & SEZ Limited, Ahmedabad, which is practically held BSF, and such a transfer is impracticable and cannot be implemented and has no significance.
(C) This Hon''ble Court be pleased to quash and set aside the Memorandum dated 17th November 2009 (ANNEXURE ''S'') executed by respondent No. 2-Gujarat State in favour of the petitioner relying upon the final approval by respondent No. 1, without respondent No. 4 having fulfilled its conditions, hence null and void.
(D) Pending admission hearing and final disposal of the present petition, this Hon''ble Court be pleased to restrain respondent No. 1 and 2 from allotting any further land to the user agency either on direct lease or any scheme or programme as proposed by the user agency-respondent No. 4."
2. It is the case of the petitioner that respondent No. 4 - Mundra Port & Special Economic Zone Limited had put forth proposal to respondent Nos. 1 and 2 in 1993 for diversion of forest land in Mundra Taluka of Kachchh District for the purpose of high quality salt production in the name and style as "Adani Chemicals Limited (user agency). The said land required by respondent No. 4 was declared as a reserve forest land by notification dated 9.10.1969 issued by respondent No. 2 - State of Gujarat. It is averred that the Range Forest Officer, Mundra Normal Range, Mundra vide letter dated 11.6.1999 addressed to the Deputy Conservator of Forest, East Forest Division, Kachchh, Bhuj intimating him that the land demanded by respondent No. 4 for diversion of 2400 hectares of land has been inspected and panchnama has been carried out and the land is barren, no cher trees are existing. Thereafter, the Conservator of Forest, Kachchh-Bhuj addressed a letter to respondent No. 2 intimating him that for the land required by respondent No. 4 - user agency, the user agency will have to provide another land to the Forest Department and as per the proposal, the land of Lakhpat Taluka situated near Kori Creek towards north-west admeasuring 25 kms in length and 507 Ms in width is proposed to be handed over on compensatory terms as per the letter dated 1.5.2000 for afforestation.
2.1 It is averred that respondent No. 1 intimated respondent No. 2 vide letter dated 13.5.2004 granting in-principle approval for diversion of 1840 hectares of forest land for high quality salt production by respondent No. 4 subject to certain conditions mentioned therein. It is alleged that conditions mentioned in letter dated 13.5.2004 have not been fulfilled, however, respondent No. 4 addressed the letter dated 5.9.2007 to respondent No. 1 seeking amendment qua change in the name and purpose i.e. respondent No. 4 has decided to opt for Special Economic Zone to go for Dedicated Coal Terminal and Solid Bulk Cargo Handling Facilities and sought diversion of land. It is averred that pending the aforesaid new proposal of respondent No. 4 before respondent No. 1, respondent No. 5 vide order dated 19.9.2007 has transferred land without making any survey or rojkam out of the marine area situated in north of Mouje village Kanar and Sinapar of Taluka Lakhpat admeasuring 2008.41 sq hectare to the Forest Department for the purpose of compensatory afforestation for Mundra Port & SEZ Limited, Ahmedabad. It is averred after almost a month i.e. on 22.10.2007, so called rojkam was carried out by the Circle Officer, Mamlatdar''s office, Lakhpat at Dayapar. It is averred that on 24.10.2007, Deputy Conservator of Forest, Kachchh (West), Bhuj Division addressed a letter to the Conservator of Forest, Kachchh Forest Circle, Bhuj - Kachchh. Thereafter, the Deputy Conservator of Forest, West Zone, Bhuj Division again addressed a letter on 5.11.2007 to the Deputy Conservator of Forest, East Zone, Bhuj giving details regarding afforestation with schedule.
2.2 It is averred in the petition that, no activity as shown in the schedule has ever been carried out though 2 and 1/2 years have passed because no such land is situated to hand over to the Forest Department till date, but the land is in possession of the BSF. It is averred that, therefore, it is amply clear that whatever land said to have been transferred to the Forest Department was not cultivable and even till date, no such report of the Conservator of Forest is coming on record and this aspect goes to the root of the matter. It is averred that thereafter, respondent No. 4 directly applied vide letter dated 21.11.2008 in the prescribed performa making the fresh proposal for diversion of 1840 hectares of forest land for setting up Port based SEZ in Mundra Taluka, Kachchh District, Gujarat State. After the said fresh proposal, the Conservator of Forest, Kachchh Circle, Bhuj made report in respect of site inspection of the reserve forest area of Mundra village admeasuring 1850 hectares. Thereafter, respondent No. 1 granted in-principle approval by letter dated 27.2.2009 for diversion of 1840 hectares and 168.41 hectares, totaling to 2008.41 hectares of forest land for development of Port based SEZ subject to the conditions mentioned therein which have not been fulfilled according to the petitioner. In short, the grievance of the petitioner is that non-forest land which is said to have been transferred to the Forest Department for afforestation is illusionary and it exists only on paper; no physical possession of the land, in fact, has so far been handed over to the Forest Department. The area has neither been identified nor measured.
3. Heard Mr. Ekrama Qureshi and Mr. Hashim Qureshi, learned counsel appearing for the petitioner, Mr. N.D. Gohil, learned counsel appearing for respondent Nos. 1, 3 and 6, Mr. Utkarsh Sharma, learned AGP appearing for respondent Nos. 2 and 5, Mr. R.S. Sanjanwala, learned Senior Advocate assisted by Mr. Sandip Singh appearing for Singhi & Co. for respondent No. 4 and respondent No. 7 has filed affidavit through their counsel.
4. We have also perused the material made available to us on record. From bare perusal of records, it appears that during the pendency of this writ petition, the Government of India through Ministry of Environment and Forests, New Delhi issued an order on 7.7.2011 constituting a Committee comprising (i) Shri J.C. Kala, IFS (Retd.) former Director General of Forests & Secretary of the Govt. of India; (ii) Dr. A.S. Dogra, IFS (Retd.), former Principal Chief Conservator of Forests, Punjab; (iii) Dr. Kamal Naidu IFS (Retd.) former Principal Chief Conservator of Forests, Andhra Pradesh and (iv) Prof. Ashwani Kumar, Department of Earthquake Engineering, IIT, Roorkee, to undertake physical verification of the site in question; to furnish an expert opinion on the issue pertaining to forests and wildlife raised in the present writ petition and to furnish expert opinion on the viability of such project located on the beach front, keeping in view earthquake of severe intensity. A copy of the report of the Committee is placed on record vide additional affidavit dated 27.03.2012 made on behalf of the respondent No. 1. The finding recorded by the Committee is as under.
"1. The Committee agrees with the Forest Advisory Committee for diversion of forestland for setting up port and the SEZ and agrees with the conditions stipulated therein.
2. Suitable Compensatory afforestation site exists at the place indicated in Collector''s order of 19th September, 2007.
3. It may be added that the mangrove environment is stressful to most plants, because of the high salt concentration in water, which are physiologically difficult for most species to deal with and lead to physiological drought in most species. However, mangrove trees can tolerate this stress. Therefore, we suggest that suitable saline tolerant species should be identified by setting up of an expert committee headed by CCF Research with knowledgeable members on mangrove ecology. User agency should urgently provide two boats as per specifications of forest department.
4. Tsunami hazards at Mundra port are low. User agency may, however, take suitable safeguards in consultation with IIT Roorkee."
5. Mr. Ekrama Qureshi, learned counsel appearing for the petitioner vehemently argued that during the visit by the Committee, the petitioner and his legal expert accompanied the Committee for verification of the site and found that the Committee visited other site, i.e. area other than the land allotted for compensatory afforestation and has filed report based on such false verification and in fact, the land allotted for compensatory afforestation is illusory and not in existence and is a sea area covered by sea water.
6. Per contra, Mr. R.S. Sanjanwala, learned Senior Advocate submitted that the respondent No. 4 had applied for forest land admeasuring 1840.00 hectares of village Mundra and 168.41 hectares of land of village Dhrub, Taluka : Mundra for development of port based special economic zone. As other land of equal area was required to be declared as reserved forest and compensatory afforestation was required to be done, the Collector, Kutch vide order dated 19.07.2007 transferred land admeasuring 2008.41 hectares situated in the north of mouje Kaner and Shenapur in Lakhpat Taluka for compensatory afforestation to the State Forest Department. Mr. Sanjanwala further submitted that measurement of said land was carried out and measurement sheet was prepared through GPS co-ordinates and longitude and latitude and thereafter possession of the said land was handed over for compensatory afforestation on 22.10.2007 to the State Forest Department. In the report, the independent expert committee has also found that the area is well demarcated with pillars. Latitudes and longitudes of these pillars were verified by independent GPS and were found to tally with the figure shown in the surveyed sketch produced by District Inspector of Land Records, Kutch-Bhuj. Location of this site also tallied with the description shown in the order of the Collector transferring unsurveyed land for compensatory afforestation. Lastly, Mr. Sanjanwala contended that it is ample clear that the compensatory afforestation area is actually available and demarcated on the ground. Therefore, it is very unfortunate to contend that the land transferred by Collector, Kutch to the State Forest Department vide order dated 19.07.2007 is not in existence.
7. We have thoughtfully considered the rival submissions made by learned counsel for the respective parties in light of the pleadings as well as documentary evidence in the nature of annexures as well as report of the expert committee submitted in pursuance of the order passed by this Court. From perusal of the aforesaid material available on record, it clearly establishes that the land for afforestation admeasuring 2008.41 hectares allotted to the Forest Department was unsurveyed land and consequently, the contention was raised that there is no actual handing over of the possession, but the documentary evidence produced by the petitioner himself at page 50 wherein it clearly discloses that along with four boundaries of the aforesaid unsurveyed land, the possession was handed over by the Circle Officer of Lakhpat and the said fact is also verified by the above referred expert committee appointed by the Ministry of Environment and Forests, Government of India, New Delhi. It can be noticed from the record that measurement of said land was carried out and measurement sheet was prepared through GPS co-ordinates and longitude and latitude and thereafter possession of the said land was handed over for compensatory afforestation on 22.10.2007 to the State Forest Department. In the report, the independent expert committee has also found that the area is well demarcated with pillars. Latitudes and longitudes of these pillars were verified by independent GPS and were found to tally with the figure shown in the surveyed sketch produced by District Inspector of Land Records, Kutch-Bhuj. It further appears from the record that location of this site also tallied with the description shown in the order of the Collector transferring unsurveyed land for compensatory afforestation and it is ample clear that the compensatory afforestation area is actually available and demarcated on the ground. In this view of the matter, the contention raised by Mr. Qureshi that no actual possession was handed over and the land unsurveyed allotted for afforestation does not exist appears to be baseless and cannot be accepted.
8. As regards contention regarding the land under the control of Border Security Force, it is noticed from the records that vide letter dated 26.12.2002, the Office of the Border Security Force has permitted mangrove plantation activities on opposite bank of Kori Creek.
9. In view of the aforesaid factual aspect, we do not find any force in the contention of Mr. Ekrama Qureshi, learned counsel appearing for the petitioner that the land allotted for compensatory afforestation is illusory and not in existence and is a sea area covered by sea water. We find no valid logical as well as scientific reasons to disbelieve the report of the independent expert committee constituted by the Government of India through Ministry of Environment and Forests, New Delhi.
10. In view of the above position, this writ petition fails and is accordingly stands dismissed. There shall be no order as to costs.
11. In view of the above judgment, Civil Application No. 11607 of 2011 does not survive and stands disposed of.
