1. PRAKASH CHANDRA N... v. 1. STATE OF ODISHA R..., National Green Tribunal, Judgment, Law, casemine.com

Citation Codes

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citation codes

Case Number

Original Application No. 39/2023 / KOLKATA

Disposition

Judges

Mr. Justice B. Amit Sthalekar
Dr. Arun Kumar Verma

Acts

SECTION 11 ORISSA SURVEY AND SETTLEMENT ACT
SECTION 2 A FOREST CONSERVATION ACT 1980
ORISSA GOVERNMENT LAND SETTLEMENT ACT 1962
FOREST CONSERVATION ACT 1980
Section 11 sub section 3
Rule 4(2) of the Orissa Government Land Settlement Rules 1983 ('OGLS 1983' for short).
Forest (Conservation) Amendment Act (69 of 1988), Section 2 (15.3.1989)]
Section 34(e) of the Orissa Survey and Settlement Rules 1962
Act 1958 and referred to the provisions of the Section 11
Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 1981

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Smart Summary

Factual and Procedural Background

This opinion arises from Original Application No.39/2023/EZ filed before the National Green Tribunal, Eastern Zone Bench, Kolkata. The applicants allege that Respondent No.6 (Orissa Industrial Infrastructure Development Corporation) is illegally diverting forest land for industrial purposes by cutting trees without proper forest clearance. Specifically, about 7.5 acres of Sabik Kisam forest land is claimed to have been usurped for the benefit of Respondent No.7 (Western Integrated Waste Management Facility Pvt. Ltd.) to establish a Common Hazardous Waste Treatment, Storage and Disposal Facility (CHWTSDF) at Village Patarpada, Tehsil Parjang, District Dhenkanal, Odisha. The applicants contend that the land is recorded as forest land in the revenue records and no forest clearance has been obtained. The respondents deny that the land is forest land, asserting that the land records classify the land as non-forest (Patita Kisam) and that any reference to "Sabik Kisam Jungle" in the records is inadvertent. The matter involves examination of various land records, government circulars, and compliance with the Forest (Conservation) Act, 1980. The Tribunal heard affidavits from the applicants, District Collector, Divisional Forest Officer, Ministry of Environment, and the respondents.

Legal Issues Presented

Whether the land in question, recorded as "Sabik Kisam Jungle" in the revenue records, qualifies as forest land under the Forest (Conservation) Act, 1980, despite being classified as non-forest land ("Patita Kisam") in certain documents.
Whether the respondents have illegally diverted forest land for non-forest purposes without obtaining prior approval from the Central Government as mandated under Section 2 of the Forest (Conservation) Act, 1980.
The applicability and interpretation of government circulars and Supreme Court orders regarding classification of land recorded as "Sabik Kisam Jungle" in revenue records published after the cut-off date of 25.10.1980.
The validity and effect of alleged inadvertent entries in land records and the proper classification of the land for the purpose of forest conservation laws.

Arguments of the Parties

Applicant's Arguments

The land in dispute is forest land recorded as "Sabik Kisam Jungle" in the 'Remarks' column of revenue records, and no forest clearance has been obtained for its use.
The entries showing the land as non-forest ("Patita Kisam") are incorrect or made after the cut-off date of 25.10.1980 and thus cannot override the forest status of the land.
Large scale illegal tree felling has occurred without permission, causing environmental harm.
The government circular dated 24.10.2011 clarifies that lands recorded as "Sabik Kisam Jungle" in records published after 25.10.1980 are to be treated as forest land under the Forest (Conservation) Act, 1980.
The respondents’ claim of inadvertence in the land records is not credible since over 280 plots show the same "Sabik Kisam Jungle" remark.

Respondents' Arguments

The land records classify the land as non-forest ("Patita Kisam") and the "Sabik Kisam Jungle" entry is an inadvertent mistake corrected in subsequent documents.
The land has been leased out legally under the Orissa Survey and Settlement Rules and the Orissa Government Land Settlement Act, following due process.
The District Level Committee did not classify the land as forest land.
Government circular dated 16.06.2023 allows lease/alienation without forest diversion proposal if Sabik records are not available, which applies here.
Environmental clearance for the project has been granted by the SEIAA, Odisha, and relevant pollution control consents have been obtained.
Tree enumeration was conducted and compensation deposited for felled trees.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
W.P.(C) No.202/1995 T.N. Godhavarman Thirumulkpad Vs. Union of India & Ors.	Definition of "forest land" under Section 2 of the Forest (Conservation) Act, 1980 includes any area recorded as forest in Government records irrespective of ownership.	The Court relied on this precedent and the related government circular to hold that land recorded as "Sabik Kisam Jungle" in revenue records after 25.10.1980 is forest land and subject to the Act's protections.
AIR 2006 Ori 115 Dasarath Singh & Ors. Vs. Smt. Manvoti Dei	Presumption of correctness attached to later settlement entries under Section 11(3) of the Orissa Survey and Settlement Act, 1958.	The Court found this precedent inapplicable because the Record of Rights clearly showed "Sabik Kisam Jungle" entries and government circulars mandated treating such land as forest land despite later entries.

Court's Reasoning and Analysis

The Tribunal carefully examined the land records, affidavits, and government circulars. It noted that the land records at page 40 of the Original Application show the land as "Patita" under "Kisam" but also as "Sabik Kisam Jungle" in the "Remarks" column, an entry the respondents claimed was inadvertent. However, the Tribunal found that over 280 other plots similarly showed "Sabik Kisam Jungle" remarks, making the inadvertence claim implausible. The Tribunal relied on the Government of Orissa Circular dated 24.10.2011 and the Supreme Court order in W.P.(C) No.202/1995, which clarified that the Forest (Conservation) Act, 1980 applies to any land recorded as forest in government records, including those published after the 1980 cut-off date, irrespective of ownership or classification in subsequent records.

The Tribunal rejected the respondents' reliance on the 16.06.2023 circular, which applies only where Sabik records are not available, as the presence of "Sabik Kisam Jungle" entries in the remarks indicated that Sabik records were in fact available. The Tribunal also considered the provisions of the Orissa Survey and Settlement Act and relevant case law but found them inapplicable due to the overriding effect of the Forest (Conservation) Act and related government circulars.

Accordingly, the Tribunal held that the land in question must be treated as forest land under the Forest (Conservation) Act, 1980, and that any use of the land for non-forest purposes requires prior approval from the Central Government under Section 2 of the Act.

Holding and Implications

The Tribunal held that the land in question is "Sabik Kisam Jungle" and qualifies as forest land under the Forest (Conservation) Act, 1980.

The Tribunal directed that the respondents shall not carry out any construction or other activity on the said land until the necessary application for use of forest land for non-forest purposes is filed with and approved by the Central Government as required under Section 2 of the Forest (Conservation) Act, 1980.

The Original Application is disposed of, and any interlocutory applications stand disposed accordingly. There is no order as to costs.

This decision directly affects the parties by restraining further development on the disputed land without required governmental approvals. The Tribunal did not set any new precedent beyond applying existing legal principles and government clarifications to the facts of this case.

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1. PRAKASH CHANDRA NAYAK S/O DURYODHANNAYAKAGED ABOUT 47YEARS AT- PATARPADA PO- PATAMANDIRPS- PARAJANG DIST- DHENKANALODISHA v. 1. STATE OF ODISHA REPRESENTED BY ADDITIONAL CHIEF SECRETARY FOREST AND ENVIRONMENT DEPARTMENT GOVERNMENT OF ODISHA

Item No.12 Court No.1

BEFORE THE NATIONAL GREEN TRIBUNAL

EASTERN ZONE BENCH, KOLKATA

(THROUGH PHYSICAL HEARING WITH HYBRID MODE)

Original Application No.39/2023/EZ

In the matter of:

1. Prakash Chandra Nayak,

S/o Duryodhan Nayak, Aged about 47 years, At-Patarpada, P.O.-Patamandir, P.S. Parajang, Dist. Dhenkanal, Odisha

2. Bijay Kumar Sahoo,

S/o Siba Sahoo, Aged about 66 years, At-Patarpada, P.O.-Patamandir, P.S. Parajang, Dist. Dhenkanal, Odisha

3. Ripal Biswal,

Naba Kishr Biswal, Aged about 30 years, At-Patarpada, P.O.-Patamandir, P.S. Parajang, Dist. Dhenkanal, Odisha

4. Daktar Biswal,

S/o Judhisthir Biswal, Aged about 28 years, At-Patarpada, P.O.-Patamandir, P.S. Parajang, Dist. Dhenkanal, Odisha

5. Ashok Kumar Biswal,

S/o Bachhia Biswal, Aged about 36 years, At-Patarpada, P.O.-Patamandir, P.S. Parajang, Dist. Dhenkanal, Odisha

6. Santanu Kumar Bhukta,

S/o Golak Bhukta At/PO Santhapada, PS Talcher, Dist. Angul, Odisha ……..Applicant(s)

Versus

1. State of Odisha,

Represented by Additional Chief Secretary, Forest and Environment Department, Government of Odisha,

Kharbela Bhawan, Bhubaneswar-751001;

2. Additional Chief Secretary,

Revenue and Disaster Management Department, Government of Odisha,

Lokaseba Bhawan, Bhubaneswar-751001;

3. District Collector, Dhenkanal,

At/PO/Dist. Dhenkanal, Odisha;

4. Divisional Forest Officer, Dhenkanal,

At/PO/Dist. Dhenkanal, Odisha;

5. Union of India,

Through Secretary, Ministry of Environment, Forests and Climate Change, Indira Paryavaran Bhawan, Jorbagh,

New Delhi-110003;

6. Orissa Industrial Infrastructure Development Corporation (IDCO),

Represented by its Managing Director, At/PO IDCO Tower, Janpath, Bhubaneswar-751022;

7. Managing Director, Western Integrated Waste Management Facility Pvt. Ltd.

Plot No.16, Sector A Zone-B, Mancheswar Industrial Estate, Bhubaneswar-751010, Odisha ……..Respondent(s)

Date of hearing: 31.01.2025

CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER

For Applicant(s) : Mr. Sankar Prasad Pani, Advocate a/w Mr. Ashutosh Padhy, Advocate (in Virtual Mode) For Respondent(s) : Mr. Debasish Tripathi, AGA for State of Odisha (in Virtual Mode), Mr. Apurba Ghosh, Adv. for R-5,

Mr. Pronoy Mohanty, Adv. for R-6 (in Virtual Mode),

Mr. Amit Pattnaik, Adv. for R-7 (in Virtual Mode)

ORDER

1. The allegation in the Original Application is that the Project Proponent i.e., Respondent No.6 is cutting trees in land which is otherwise forest land by illegal diversion of forest land for the purposes of industrialization. It is stated that 7.5 acres of Sabik Kisam Forest Land is being usurped by Respondent No.6 for the benefit of Respondent No.7 i.e., M/s Western Integrated Waste

Management Facility Private Limited which is projected to set up Common Hazardous Waste Treatment, Storage and Disposal Facility (CHWTSDF) at Village- Patamrapada, Teshil-Parjang, District-Dhenkanal, Odisha.

2. The contention of the Applicant is that the land in question is forest land recorded as Forest Land (Sabik Jungle) in the Revenue Records and no Forest Clearance has been obtained.

3. Mr. Sankar Prasad Pani, learned Counsel for the Applicant has referred to the Bhulekh Record at page 40 of the Original Application and submits that in respect of the land in dispute i.e. Khatian No.1023, Plot No.5 though under the head "Kisam" it is mentioned "Taila-2" but under the 'remark' column the nature of the land has been described as "Sabik Kisam Jungle". Learned Counsel further referred to the document at page No.43 of the paper book and submitted that Alienation Case No.1/2021 was conducted and by order dated 06.09.2022 Khata No.1023 upon alienation to the Orissa Industrial Infrastructure Development Corporation (IDCO) the plot of the land was shown as Khatian 985/532 Mouza Patarpada, Dist.-Dhenkanal and the Kisam of the land was shown as 'Patita' for Plot No.5.

4. Learned Counsel submitted that these records have been published on 31.05.1983 i.e. after the cut-off date of 25.10.1980 as mentioned in the Forest (Conservations) Act 1980 and therefore the nature of the land could not have been changed from "Sabik Kisam Jungle" to "Taila-2" or "Patita" in the Bhulekh Records at page 40 and page 43 of the paper book (Annexures 4 and 5 to the Original Application).

5. Similarly, for Plot No.3 learned Counsel has submitted that same was also shown as "Kisam Patita" in Annexure 5 after the Alienation Case No.1/2021 vide order dated 06.09.2022. Learned Counsel submitted that large tracks of forest land are being illegally diverted for industrialisation by IDCO, the Respondent No.6 without following the due process laid down in Section 2 of the Forest (Conservation) Act 1980. It is stated that about 93 acres of land have been brought under the Land Bank Scheme (LBS) as per the Land Schedule Map (LSM) of IDCO including 12 acres of

"Gochar" land and 7.5 acres of "Sabik Kisam Land" and out of these 93 acres of land, about 70 acres of land have been proposed to be allocated to the Respondent No.7 for the Western Integrated Waste Management Facility Pvt. Ltd. for establishment of Common Hazardous Waste Treatment, Storage and Disposal Facility (CHWTSDF) at village Patarapara, Tahasil - Parajang, Dist. - Dhenkanal, Odisha.

6. It is stated that the Respondent No.7 Unit is to continue land fill at the site in question for burying a total of 7,00,000 MT of hazardous waste; subsequently the capacity of the waste treatment was reduced to 20,000 tons per annum and the land area also has been reduced from 70 acres to 27 acres for which Environmental Clearance was granted on 18.02.2022. It is stated that IDCO has acquired 12 acres of land including 6 acres of "Sabik Kisam" forest land on which construction has been started towards the Integrated Waste Management Facility.

7. Reliance has also been placed on the Government of Orissa, Revenue and Disaster Management department Circular

No.GE(GL)-S-76/2010-43968/R&DM dated 24.10.2011 which provides as under :-

"…… Government have been pleased to clarify that the provisions of Forest (Conservation) Act, 1980 would be applicable to any type of forest land including the land recorded as non-forest land in Hal records published after 25.10.1980 which was of "Jungle" kisam in its respective Sabik record as on 25.10.1980 irrespective of the fact that the said non-forest kisam land in Hal record does not find place in the District Level Committee Report which formed the basis for the affidavit filed by the State Government before the Apex Court."

The Circular dated 24.10.2011 reads as under :-

"Government of Orissa Revenue and Disaster Management Department ********

NO.GE(GL)-S-76/2010-43968/R&DM. Dtd.24/10/2011

From Shri R. K. Sharma, IAS Commissioner-cum-Secretary to Government To

All Collectors

Sub: Government land recorded in non-forest kisam with a note of "Sabik Kisam Jungle" in the RoR finally published after 25.10.1980 but which was forest kisam in Sabik record - application of Forest (Conservation0 Act, 1980 - Clarification regarding.

Madam/Sir,

There have been doubts about the applicability of Forest (Conservation) Act, 1980 to the lands recorded as non-forest kisam in RoR published after 25.10.1980 but which carry an entry of 'Sabik Kisam Jungle' in the remarks column. This matter has been examined in consultation with Forest & Environment Department and it is noted that section 2 of the Forest (Conservation) Act, 1980 restricts the dereservation of forests or use of forest land for non-forest purpose except with prior approval of Government of India, MoEF for such non-forest use. Further, the Hon'ble Supreme Court, in their order Dt.12.12.1996 passed in WP(C) No.202/1995 have observed that

"…….. The term 'forest land' occurring in section 2, will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of its ownership. This is how it has to be

understood for the purpose of section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests, and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof …." In consideration of this position, Government have been pleased to clarify that the provisions of Forest (Conservation) Act, 1980 would be applicable to any type of forest land including the land recorded as non-forest land in Hal records published after 25.10.1980 which was of "Jungle" kisam in its respective Sabik record as on 25.10.1980 irrespective of the fact that the said non-forest kisam land in Hal record does not find place in the District Level Committee Report which formed the basis for the affidavit filed by the State Government before the Apex Court. You are, therefore, requested to take appropriate action in the matter accordingly.

Yours faithfully,

Commissioner-cum-Secretary to Government"

8. In fact, the Circular dated 24.10.2011 was issued by the Government of Orissa in pursuance of the order of the Hon'ble Supreme Court dated 12.12.1996 passed in W.P.(C) No.202/1995 T.N.Godhavarman Versus Union of India & Ors. which is extracted hereinbelow:

"…….. The term 'forest land' occurring in section 2, will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of its ownership. This is how it has to be understood for the purpose of section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests, and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof …."

9. The second leg of submission of the learned Counsel for the Applicant is that large scale felling of trees has been carried out on the land in question without seeking permission from the Forest Department thereby causing grave loss to the environment. Trees have also been felled on the land in question for purposes of

construction in spite of objections being raised by the local villagers and local residents of the area.

10. The District Magistrate and Collector, Dhenkenal has filed affidavit dated 11.07.2023 and it is stated that the Plot No.5, Khata No.1023 has always been recorded as non-forest land (Patita Kisam) in the Sabik Record of Rights (RoR) being pre 1980 Settlement record. It is also stated that the Sabik RoR of Plot 5 is not traceable as it is an old document. However, the Sabik correspondence along with Sabik Classification of the Hal record is available in the office of the Settlement Officer, Dhenkanal-Keonjhar Major Settlement, Dhenkanal.

11. It is also stated that plot No.5 has not been classified as District Level Committee ('DLC' for short) forest land during the exercise conducted by the District authorities. It is also stated that in the Hal Settlement Records (HSR) published on 01.05.1983 the classification of Plot No.5, Khata No.1023 under the Orissa Survey and Settlement Rules 1962 was recorded in Government Abad Jogya Anabadi (AJA) Khata with Kisam "Taila-2" (Non Forest Land). By way of clarification it is stated that Government Abad Jogya Anabadi means that such land can be leased out in favour of third parties.

12. With reference to the entries in the Bhulekh records at page 40 of the paper book it is stated that in the Hal Record of Rights in the 'Remarks' column it was mentioned that the "Sabik Kisam" of the Plot is "Bandhali" (non forest) which has been deleted by Revenue Miscellaneous case No.3/2021.

It is however stated that in the Bhulekh database, in the "Remarks"

column against the said plot it was inadvertently mentioned as

"Sabik Kisam Jungle". It is also stated that the land has been converted into "Kisam Patita" under Section 34(e) of the Orissa Survey and Settlement Rules 1962 and the said plot has been leased out in favour of IDCO, the Respondent No.6 on 25.03.2022. It was further stated that on 02.08.2021 conversion of the land from Kisam "Taila-2" to Kisam "Patita" has been made as per Section 34(e) of the Orissa Survey and Settlement Rules 1962 and subsequently on 04.08.2021 correction in the classification of the land from "Taila-2" to "Patita" was made in the Hal Record of Rights (RoR) and Khatian 985/532 Plot No.5 admeasuring 6 acres is now classified as "Patita".

13. As regards construction work on the said plot is concerned, it is stated that the constructions being carried on by the Respondent No.7 was stopped for a short period to resolve the issue that arose in the Objection Petition regarding involvement of plots having

"Sabik Kisam Jungle". It is stated that land admeasuring Ac 12.5 dec. was leased out to IDCO for the purpose of establishment of industries and allied activities of which Plot 5 has been sub-leased by IDCO in favour of Respondent No.7.

14. So far as Plot No.3 Khata No.1026 is concerned, it is stated that Ac.

6.5 Dec. is de-reserved by the Collector, Dhenkanal on 28.02.2022 on the basis of case record initiated by the Tahasildar, Parjang duly recommended by the Sub-Collector, Kamakhyanagar after following due procedure laid down in Section 3A of Orissa Government Land Settlement Act 1962 read with under Rule 4(2) of the Orissa Government Land Settlement Rules 1983 ('OGLS 1983' for short). It is stated that as per the Rules 1983, surplus Gochar land can be de-reserved if it is more than 5% of the effective area of the Revenue

Land and in the present case only the surplus 'Gochar' land has been de-reserved.

15. Further, with regard to the allegation of cutting of trees on the land in question, it is stated that enumeration of trees situated over the leased land was conducted jointly by Revenue Forest, Orissa State Cashew Development Corporation Ltd. (OSCDC) and IDCO officials and it was found that 1292 number of cashew trees and 81 Gohira trees were standing over the land and the required cost of the enumerated trees amounting to Rs.70,650/- was deposited by IDCO before the Tahasildar, Parjang.

16. The other affidavit dated 14.09.2023 has been filed by the Collector and District Magistrate, Dhenkanal reiterating the contents of the previous affidavit and referring to the allegations of the Applicant in respect of 280 plots mentioned under Khata 1023 it is stated that all the plots present in Khata No.1023 of Mouza Patarpada are not forest.

17. Reference has also been made to the Circular No.21643/ACSR&DM dated 16.06.2023 issued by the Revenue and Disaster Management Department, Government of Orissa which refers to letter No.4822/CS dated 12.02.2015 issued by the Chief Secretary, Orissa and it is clarified as under :-

"where the present RoR has been published after 25.10.1980, the old RoR may have to be referred to find out the forest land required to be diverted for non-forest purpose and Forest Diversion Proposal (FDP) is required to be processed accordingly. If old RoR is not available in cases where RoR is published after 25.10.1980, the status of land classified as 'forest' as on 25.10.1980 needs to be ascertained as per the current RoR and other records available with Tahasildar while preparing FDP."

18. It is also clarified that in a case where the Hal Record of Rights in respect of Government land has been published after 25.10.1980, the Tahasildar shall verify the following conditions and if all the three conditions are satisfied, then Forest Diversion Proposal (FDP) shall not be required for lease/alienation proposal in respect of the said land. The conditions given are as under :-

a) The Hal Record is non forest in Kisam

b) The corresponding Sabik record are not available

c) The land does not find place in the District Level Committee (DLC) Report which found the basis for the affidavit filed by the State Government before the Hon'ble Supreme Court of India in W.P.(C) No.202 of 1995 (T N Godavarman Thirumulkpad Vs. Union of India & Ors.)

19. Para 7 of the GO dated 16.06.2023 further states as under :-

"Where the Sabik record is not available and the above three conditions are satisfied, the Tahasildar shall certify in the Case Record that the Sabik record is not available and he shall process for lease/alienation of the land on the basis of Hal records."

20. The Ministry of Environment, Forests and Climate Change (MoEF&CC) has filed affidavit and it is stated that the Environmental Clearance was granted on 18.02.2022 by SEIAA, Orissa, to the Respondent No.7 under Schedule 7(d) of the Common Hazardous Waste Treatment Storage and Disposal Facilities for their land fill facility and if any violations are found, SEIAA is empowered to take necessary action against the violators, if any.

21. The Divisional Forest Officer has filed affidavit dated 11.07.2023 reiterating the stand taken by the District Collector and District Magistrate, Dhenkanal and it is also stated that the lands in

question are not forest land and no tree felling permission has been accorded by the Divisional Forest Officer, Dhenkanal.

22. "Kisam Taila-2" has been described as fallow land. It is also stated that no Reserve Forest exists in village Patarpada.

23. The Respondent No.7 in its affidavit has reiterated the contents of the affidavit filed by the District Collector and it is submitted that as per classification of the land, the same is "Kisam Patita" and the entry "Sabik Kisam Jungle" is probably due to inadvertence in the

"remarks" column of the said Record of Rights (ROR). It is further stated that the Respondent No.7 approached the Industrial Promotion & Investment Corporation of Odisha Limited ('IPICOL' for short) for change of location of the Integrated Waste Management Facility which was considered by the Respondent No.7 in Village Patarpada of Dhenkanal District. It is stated that the Orissa State Pollution Control Board has granted Consent to Establish (CTE) under the Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 1981 on 28.12.2021 for establishment of Common Hazardous Waste Treatment, Storage and Disposal Facility (CHWTSDF). It is stated that the Environmental Clearance was also granted by the SEIAA, Orissa dated 18.02.2022. Lease Agreement was executed between IDCO and Respondent No.7 on 30.09.2022 in respect of the land in question for 90 years.

24. The IDCO has also reiterated the factual contents of the affidavit filed by the District Collector and District Magistrate, Dhenkanal.

25. Rejoinder affidavit has been filed by the Applicant alleging that about 280 plots of Government land show the same to be recorded as "Sabik Kisam Jungle" and therefore, the stand of the District

Collector and Magistrate, Dhenkanal that it is due to inadvertence cannot be bonafide.

26. The Applicant has filed additional affidavit dated 28.11.2024 with an English translation of the land record shown in Annexure-1 of the land records mentioning the Kisam of land to be "Sabik Kisam Jungle" under the heading 'Remarks".

27. We have heard learned Counsel for the parties and perused the documents on record.

28. Section 2 of the Forest (Conservation) Act 1980 reads as under :-

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

(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;

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

(iii) (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;

(iv) (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.

[Explanation. [Substituted by the Forest (Conservation) Amendment Act (69 of 1988), Section 2 (15.3.1989)] - For the purpose of this section, "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for-

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

(b) any purpose other than reafforestation; but does not include any work relating to 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.]"

29. The document Annexure-4 page 40 of the Original Application which is English translation of the Bhulekh records shows plot 5 Khatian No.1023 to be recorded as "Patita" under the head "Kisam"

but under the head "Remarks", it is classified as "Sabik Kisam Jungle". The respondents have stated that this entry of "Sabik Kisam Jungle" is due to inadvertence and subsequently the correction has been made through the documents filed at page 43 of the paper book (Annexure-5) which shows the Kissam of the plot as "Patita" but there is no Remarks showing "Sabik Kisam Jungle".

The document (Annexure-5 to the Original Application) shows the last date of publication of the land record as 31.05.1983 i.e. after the cut off date of 25.10.1980 given in the Forest (Conservation) Act, 1980. The learned Counsel for the respondents further referred to the documents at page 78 of the paper book which shows Hal Khata No.1023 as "Abad Jogya Anabadi (AJA)" and Kisam of Hal Plot No.5 area, 6 acres as "Kisam-Taila-2". The documents further mentions as under: -

"On verification it is ascertained that Hal records bearing Plot No.5 have been prepared on basis of Yadast No-7."

When we questioned the learned Counsel as to what "Yadast"

means, he submitted that the same means that it is based upon the survey records as they existed in the past.

30. The learned Counsel for the Respondents further referred to a document at page 81 of the paper book which refers to Plot No.5 Khatian No.1023 i.e. the Plot in question, which under the column

"Remarks" mentions "Sabik Kisam Bandhali" and further mentions that the "Kisam Taila-2" of Plot No.5 has been converted into

"Kisam Patita" and "remarks" column was deleted in Alienation Case No.01/2021 dated 14.08.2021. This shows that the change in the Kisam of the land has been carried out only in proceedings dated 14.08.2021. The date of publication of this document is also shown as 31.05.1983.

31. It has not been explained by the Respondents as to how there are two land records, one at page 40 of the paper book showing the same land as "Sabik Kisam Jungle" under the column- "Remarks"

the last date of publication of which is 31.05.1983 and the document at page 81 of the paper book which in respect of the same land under the Column "Remarks" mentions that it is "Sabik Kisam Bandhali" and it shows that the nature of the land is "Kisam Taila-2" has been converted into "Kisam Patita" on 14.08.2021 in Alienation Case No.1/2021 in respect of the same land. The Respondents submit that the entry in the document at page 40 has been due to inadvertence mentioning "Sabik Kisan Jungle" under the "Remarks" column.

32. However, the affidavit filed by the Applicant dated 28.11.2024 shows about 280 plots in the said Khata and in the "Remarks"

column of all the plots it is mentioned "Sabik Kisam Jungle.

33. These documents have been downloaded from the Government portal as existing on 11.12.2022 which date is mentioned in the document itself.

34. We might have appreciated the contention of the Respondents that the document at page 40 inadvertently mentioned the classification of the land as "Sabik Kisam Jungle" but we cannot accept that the same mistake has occurred in 280 other plots all of which under the "Remarks" column mention the nature of land as "Sabik

Kisam Jungle" though under the column "Kisam" the documents are variously shown as "Patita", "Gharabara", "Adi", "Sarada",

"Tini", "Sarada", "Dui", "Taila Dui".

35. We may also refer to the Government of Orissa Circular dated 24.10.2011 (at page 61 of the paper book) which has been issued by the Government by way of clarification to clear doubts about the applicability of the Forest (Conservation) Act 1980 to land recorded as non-forest kisam in RoR published after 25.10.1980 but which carry an entry of "Sabik Kisam Jungle" in the "Remarks" column. This Circular has referred to the judgment order of the Hon'ble Supreme Court dated 12.12.1996 passed in W.P.(C) No.202/1995 T N Godavarman Thirumulkpad Vs. Union of India & Ors. and thereafter it has been clarified that the provisions of the Forest (Conservation) Act 1980 would be applicable to any type of Forest land including land recorded as non-forest land in Hal Records published after 25.10.1980 which was of "Jungle kisam" in its respective Sabik record as on 25.10.1980 irrespective of the fact that the said non-forest kisam land in Hal Records does not find place in the District Level Committee (DLC) Report which formed the basis for the affidavit filed by the State Government before the Apex Court.

36. This shows that the entry in the "Remarks" column of "Sabik kisam jungle" in land records showing land as non-forest land in Hal records published after 25.10.1980 would continue to be treated as

"Forest Land".

37. The Circular dated 16.06.2023 issued by the Government of Orissa does not refer to the Government of Orissa Circular dated 24.10.2011 but refers to a letter no.4822/CS dated 12.02.2015

issued under the signature of the Chief Secretary, Orissa, as mentioned in the letter itself, and provides that in case where Hal Record of Rights of Government land has been published after 25.10.1980, the Tahasildar shall verify the following conditions and if all the three conditions are satisfied then the forest diversion proposal shall not be required for lease/alienation proposal in respect of the said land:-

a) Hal Record of Rights is non forest in kisam

b) The corresponding Sabik records are not available.

c) The land does not find place in the District Level Committee (DLC) Report which formed the basis for the affidavit filed by the State Government before the Hon'ble Supreme Court of India in W.P.(C) No.202 of 1995 T N Godavarman Thirumulkpad Vs. Union of India & Ors.

38. The learned Counsel for the Respondents vehemently submitted that this Circular clearly mentions that where corresponding Sabik Records are not available, then forest diversion proposal in respect of lease/alienation of such land would not be required.

39. The submission of the learned Counsel for the Respondents is not acceptable and is rejected for the reason that in the document in Annexure-4 under the column "Remarks" the land in question has been described as "Sabik Kisam Jungle" and though the stand of the Respondents in their counter affidavit is that the said land does not find place in the DLC Report and that this entry was only made inadvertently but the said submission has been rejected on the ground that more than 280 other plots in the land records as late as 12.11.2022 also under the column head "Remarks", shows all those plots to be "Sabik Kisam Jungle". Therefore, it cannot be said

that the Sabik Kisam records was not available at the relevant point of time.

40. Even in the document which has been filed at page 78 of the paper book it is mentioned that the said document showing Hal Plot no. 5, Hal Khata No.1023 showing the land as Kisam Taila-2 Ac. 6.00 dec. has been prepared on the basis of "yadast" No.7. The Respondents submitted that the same has been prepared on the basis of old records and survey. Question is how can such a large number of Plots continue to be shown even as late as 2022 as

"Sabik Kisam Jungle" if there were no Sabik records available to that effect. If the own land records of the Respondents show the kisam of the land in question and of 280 odd other plots as "Sabik kisam Jungle" in the "Remarks" column, irrespective of how the land has been characterized under the column "Kisam", these would be a presumption that the records must be available or must have been available at the relevant point of time with the Respondents showing the classification of the land as "Sabik Kisam Jungle".

41. The learned Counsel for the Respondents further referred to the provisions of the Orissa Survey and Settlement Act 1958 and referred to the provisions of the Section 11 thereof and submitted that sub-section 3 of section 11 of the Act provides as under:

"The Notification in the Gazette of an order under Section shall be conclusive evidence that the order has been duly made; such notification may direct that the Record of Rights may be prepared or revised in the prescribed manner."

42. Reference has been made to a judgment of the Hon'ble Orissa High Court where Section 11 sub section 3 has been considered and it has been held that from the contents thereof it is clear that the

presumption of correctness shall be attached to the later settlement entry till such presumption is dispelled or rebutted by convincing evidence and whenever there is conflict between the entries made in the previous settlement records and subsequent settlement records, the previous survey entry will not be evidence of the state of things that existed at the time of later entry and the party challenging the correctness of the latest entry will have to establish that it is incorrect.

43. Para 9 of the judgment in AIR 2006 Ori 115 "Dasarath Singh & Ors. Vs. Smt. Manvoti Dei" reads as under:-

"xxxxxxxxxxxx From the above noted observation of the Courts and from the contents of Section 11(3) of the Orissa Survey and Settlement Act, it is clear that the presumption of correctness shall be attached to the later settlement entry till such presumption is dispelled or rebutted by convincing evidence and wherever there is conflict between the entries made in the previous settlement records and subsequent settlement records, the previous survey entry will not be evidence of the state of things that existed at the time of later entry and the party challenging the correctness of the latest entry will have to establish that it is incorrect."

44. In our opinion, the said judgment has no application to the facts of the present case since we have already noted that the Record of Rights (RoR) clearly mentions the character of the classification of the land as "Sabik Kisam Jungle" in the "Remarks" column and by the Government's owned Circular dated 24.10.2011 the entry of

"Sabik Kisam Jungle" in the Hal Records after 25.10.1980 would be subject to the provisions of the Forest (Conservation) Act 1980. The subsequent Circular of the Government of 16.06.2023 has not considered the circular of 24.10.2011 and even otherwise the

Circular of 16.06.2023 would be applicable only if Sabik records were not available. Question is if the Sabik Records are not available, how do the land records show the classification of the land in question, including 280 odd other plots, as "Sabik Kisam Jungle".

45. Thus on a conspectus of facts of the case and the documents on record, we hold the land in question to be "Sabik Kisan Jungle"

and we direct that the respondents shall not to carry out any construction or other activity on the said land until application for use of the said land for non-forest purposes is filed with the Central Government as required by the provisions of section 2 of the Forest (Conservation) Act 1980 and such permission is granted by the Central Government under Section 2 of the Forest (Conservation) Act 1980.

46. The Original Application is disposed of.

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

48. 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

January 31, 2025, Original Application No.39/2023/EZ

SKB

1. PRAKASH CHANDRA N... v. 1. STATE OF ODISHA R...