Forest Conservation

PROJECT REPORT ON FOREST CONSERVATION

SUBMITTED TO:

SUBMITTED BY:

Ms Sabina Salim

Amandeep Kaur (63/10) Harkiran Brar (87/10) Dhruv Bansal (88/10) 8th Semester

Forest Protection & Conservation

TABLE OF CONTENTS Acknowledgement .................................................................................................................................. 3 Introduction ............................................................................................................................................ 4 Constitutional Mandate And Forest Conservation ................................................................................. 4 Forest Conservation and Legislative Action ............................................................................................ 5 The Indian Forest Act, 1927 ................................................................................................................ 5 The Forest (Conservation) Act, 1980 .................................................................................................. 8 Forest Conservation: Role of Central Government............................................................................... 11 Prior Approval by the Central Government ...................................................................................... 11 Symbiotic Relationship & Tribal People ................................................................................................ 14 Tribal Lands ....................................................................................................................................... 14 Tribal People: Friends or Foes........................................................................................................... 15 Tribals Ousted in Development ........................................................................................................ 17 Empowerment of Tribal People ........................................................................................................ 17 Forest Conservation And Judicial Process............................................................................................. 19 National Needs, Forest Conservation and Judicial Attitude: ............................................................ 19 Felling of Trees, Forest Conservation and Judicial Attitude: ............................................................ 23 The Godavarman Cases: The High-Water Mark in Forest Protection........................................... 23 The Influence of Godavarman Cases ............................................................................................ 25 Use of Forests for Non-Forest Purposes and Judicial Attitude: ........................................................ 26 Biblioghaphy ......................................................................................................................................... 29

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ACKNOWLEDGEMENT We have put our sincere efforts in this project. However, it would not have been possible without the kind support and help of many individuals and organizations. We would like to extend our sincere thanks to all of them. We are highly indebted to Ms Sabina Salim for their guidance and constant supervision as well as for providing necessary information regarding the project & also for their support in completing the project. We would like to express our gratitude toward our parents, seniors and our classmates for their kind co-operation and encouragement which help us in completion of this project. Our thanks and appreciations also go to our colleague in developing the project and people who have willingly helped us out with their abilities.

Amandeep Kaur Harkiran Brar Dhruv Bansal

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INTRODUCTION Forests help in maintaining the ecological balance. They render the climate equable, add to the fertility of the soil, prevent soil erosion, and promote perennial stream flow in rain-fed rivers. They also shelter wild animals, preserve gene pools, and protect the tribal population. The Supreme Court took note of this role in Rural Litigation and Entitlement Kendra v State of Uttar Pradesh1 Besides the benefits from environmental and ecological perspectives, forests bring revenue to the state, supply raw material to industries, and act as a source of fuel and fodder. Forest management always gives rise to conflicting view-points, for instance, development activities like construction of dam or starting an industry in a forest area often raise questions regarding the violation of the forest laws. In a society based on the rule of law, conflict of values is to be reconciled and priorities set. This process should precede and also form the basis of formulation of legal policies and devices for the management of forests.

CONSTITUTIONAL MANDATE AND FOREST CONSERVATION The Constitution (Forty-second Amendment) Act, 1976 has introduced a new directive principle of state policy-article 48-A and a fundamental duty under article 51(A) (g) for the protection and improvement of environment including forests. These provisions provide as under: Article 48-A. - Protection and improvement of environment and safeguarding of forests and wild life. - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51-A(g) provides-It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. A perusal of the above provisions clearly shows that both State and the citizens are under an obligation to protect and safeguard forests, which will have an impact on the environment. 1

AIR 1988 SC 2187.

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"Forest" was initially a "State" subject covered by Entry 19 in List II of the VII Schedule. The Indian Parliament realising the national significance of the forest has also made changes in the VII Schedule. Entry 19 in List II of the VII Schedule has been deleted and a new entry 17-A relating to forests has been introduced in the Concurrent List of the VII Schedule by the Constitution (Forty-second Amendment) Act, 1976. Thus, State as well as Centre can make the law relating to forests. The State Government can make laws relating to forest administration provided it is in consonance with the forests policy of centre for preservation and development of the nation's forest resources.

FOREST CONSERVATION AND LEGISLATIVE ACTION The first codification, which came on the statute book .in relation to administration of forest in India, was the Indian Forest Act, 1865. Thus, the history of forest law in India is more than a century old. The Act of 1865 was amended from time to time and ultimately it was repealed and replaced by the Indian Forest Act, 1927 which not only consolidated but also re-shaped the law relating to forests. The said Act of 1927 was also amended from time to time.

THE INDIAN FOREST ACT, 1927 The Indian Forest Act, 1927 contains 86 sections and it deals with four categories of forests namely (i) Reserve Forests in Chapter II (ii) Village Forests in Chapter III (iii) Protected Forests in Chapter IV and (iv) Non-Government Forests in Chapter V. Thus, the Act is wide enough to cover all categories of forests. Besides forests specified under the Act on a function basis as reserve forests, village forests, protected forests and non-government forests, the Act contemplates the protection of forest land under certain conditions. Since before 1976, forest was in Entry 19 of the List II of the VII

Schedule, the States also had the jurisdiction to enact laws in relation to the forests and accordingly the Act has been supplemented with extensive State legislations so as to suit the requirements of various States. There have been about 117 such Acts.

The Indian Forest Act, 1927 was clearly one step to considering the importance of ecology and environmental balance. Most of the private forests covered under the fourth category Environmental Law

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mentioned above were earlier parts of estates which have now been abolished and thus such forests have also become government property. The Act sought to consolidate the law relating to forests, the transit of forests produce and the duty liveable on timber and other forests produce. The Act empowers the State Government to constitute any forest-land or waste-land as reserved forest and to issue notification in the official gazette.The notification is required to be published in the official gazette and unless it is published it is of no effect." After the notification under section 4 of the Act, no right shall be acquired in or over the land comprised in such notification and previously recognized individual and community rights over the forest are extinguished upon such a notification and access to forest and forest products becomes a matter of privilege subject to permission of forest officials acting under governing laws and regulations. The Act includes procedures for making claims against the Government for the loss of legal rights over the forests. The village forests are established when State assigns to a village community rights over any land which has been constituted a reserve forest. The State Governments make rules for managing the village forests and prescribe conditions under which the village community is provided with timber, other forest products or pasture. The rules may also assign duties tithe village for the protection and improvement of the forests. The State Government has also been empowered to declare any forest-land or waste-land which is not included in the reserve forest but in which the Government has proprietary right or rights to any part of the forest products as protected forests. Thus, protected forests cannot be created from reserve forests. The Government must survey the rights and claims of private persons in forest being considered for protection but may declare the forest area a protected forest pending the completion of survey. Under section 30 of the Act, the State Governments can close portion of the forests, for such term not exceeding thirty years, as long as the remainder of the forests is sufficient for individuals and communities to exercise their existing legal rights to use forests. The State Governments may prohibit certain activities such as grazing, cultivation, charcoal burning and stone quarrying. The State Government may also regulate all rights and privileges for the use of protected forests. State Governments have been empowered to notify certain trees and forests to be protected forests and penalize for cutting, converting, collecting or removing forest produce without licence being granted by the respective States. Environmental Law

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Chapter V of the Act deals with the control over forests and land not being the property of the Government. The provisions of this Chapter show that the Act is intended to be a piece of legislation not only in respect of government forest but also in respect of forests and lands not belonging to government. In other words, the Act covers non-government forests also. The State Government can, by notification, regulate or prohibit the breaking up or clearing of land for cultivation, the pasturing of cattle or the firing or clearing of the vegetation to protect against storms, winds, rolling stones, floods and avalanches, to preserve soil from erosion, to maintain water supply in springs, rivers and tanks, to protect roads, bridges, railways, lines of communication and to preserve public health, etc. The Act also authorizes the State Government to acquire private land for public purposes under the Land Acquisition Act, 1894. The State Governments have also been vested with powers to impose duty on timber and other forest-produce and to control transit of timber and other forest produce and to impose penalties for offences committed under the Act.19 Chapter IX deals with penalties and procedure to be followed in case of seizure of property. However, the Act has not fully appreciated the concept of damage caused to the forests due to illicit cutting of trees or due to fire or because of breaking of forest cover for agricultural purposes. For example, section 33 of the Act enumerates certain offences and provides for punishment of imprisonment for a term which may extend to six months or with fine which may extend to Rs. 500/- or with both. Section 26 of the Act, of course, recognizes the concept of 'compensation' for damage done to the forest as the convicting court may direct to be paid in addition to the sentence of imprisonment for a term which may extend to six months or fine which may extend to Rs. 500/- or both, for the acts prohibited in the reserved forests. But this provision too has its shortcomings because this section does not confer any power on the appellate court to award compensation. The words used in this section are "the convicting court" and the appellate court is not the convicting court. Therefore, it is only the trial court, which can be called the convicting court, and thus only the trial court can direct for the compensation for damage done to the forest. In 1980, the Parliament in response to the rapid decline in the forest covers in India and also to fulfil the constitutional obligation under Article 48-A of the Constitution enacted a new legislation, the Forest (Conservation) Act, 1980.

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THE FOREST (CONSERVATION ) ACT, 1980 This Act has been passed with a view to check deforestation which has been taking place in the country on a large scale and which had caused ecological imbalance and thus led to environmental deterioration. The President of India promulgated the Forest (Conservation) Ordinance on 25th October, 1980. Section 5 of the Forest (Conservation) Act, 1980 has repealed this Ordinance. This Act has not taken into consideration those aspects, which were covered by the Indian Forest Act, 1927. It simply aims at putting restriction on the dereservation of forests or use of forest-land for non-forest purposes. The Act is intended to serve a laudable purpose" as is evident from the Statement of Objects and Reasons of the Act, which reads: 1) Deforestation causes ecological imbalance and leads to environmental deterioration. Deforestation had been taking place on a large scale in the country and it had caused widespread concern. 2) With a view to checking further deforestation, the President promulgated on 25th October, 1980, the Forest (Conservation) Ordinance, 1980. The Ordinance made the prior approval of the Central Government necessary for de-reservation of reserved forests and for use of forest-land for non-forest purposes. The Ordinance also provided for the constitution of an Advisory Committee to advise the Central Government with regard to such approval. Scope and Application: - This Act extends to whole of India except the States of Jammu & Kashmir, which has its own State Act. The Forest (Conservation) Act, 1980 came into force on 25th October, 1980, i.e., the date on which the Forest (Conservation) Ordinance, 1980 was promulgated.

Restriction on the De-reservation of Forests or Use of Forest-land for Non-Forest Purposes: Section 2 of the Act deals with restriction on the de-reservation of forests or use of forestland for non-forest purposes. It provides that 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 prior approval of the Central Government, any order directing,

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i.

That any reserved forest declared under 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.

that any forest land 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 organization not owned, managed or controlled by Government;

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 re-afforestation.

For the purposes of this section "non-forest purpose" means the breaking up or clearing or any forest-land or portion thereof for:a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants; or b) any purpose other than re-afforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, 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. In State of Kerala v Sunil Kumar,2 the Supreme Court has clarified that where the State Government did not want to lease any part of forest land, the question of seeking prior approval of the Central Government did not arise. The question of approval arises only when the State Government makes a request for such an approval in respect of cases falling under categories mentioned in section 2 of the Act. In A Chowgule & Co. Ltd. v Goa Foundation,3it has been clarified that approval of the Central Govt. cannot be given retrospectively to make it "prior approval" under the Act. Constitution of Advisory Committee.- The Central Government may constitute a Committee consisting of such number of persons as it may deem fit to advise that Government with regard to :i.

the grant of approval under section 2 (as explained above); and

2

(2006) 9 SCC 753. (2008) 12 SCC 646.

3

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ii.

any other matter connected with the conservation of forests which may be referred to it by the Central Government.

Rule 3 of the Forest (Conservation) Rules, 2003 provides for the composition of the Committee. It says that the Committee shall be composed of the following members:-

i.

Director-General of Forests, Ministry of Environment and Forests - Chairman

ii.

Additional Director-General of Forests, Ministry of Environment and ForestsMember (He will act as chairperson in the absence of Director General of Forests).

iii.

Additional Commissioner (Soil Conservation), Ministry of Agriculture - Member

iv.

Three eminent experts in forestry and allied discipline Environment Scientists (nonofficials)- Member;

v.

Inspector-General of Forests (Forests Conservation), Ministry of Environment and Forests-Member-Secretary.

A non-official member shall hold his office for a period of two years. Anon-official member shall cease to hold the office if he becomes of unsound mind becomes insolvent or is convicted by a court of law on a criminal offence involving moral turpitude. The non-official member may be removed from his office if he fails to attend three consecutive meetings without sufficient cause or reasons. The Government, for the unexpired portion of two years term shall fill any vacancy of the non-official member.

Penalty for Contravention of the Provisions of the Act:- Section 3-A of the Act provides that whoever contravenes or abets the contravention of any of the provisions of section 2, shall be punishable with simple imprisonment for a period, which may extend to fifteen days. A perusal of this section shows that the Act contemplates only the punishment of simple imprisonment and it does not contemplate any punishment in terms of fine.

Offences by Authorities and Government Departments.-Section 3-B of the Act provides that where any offence under this Act has been committeda) by any department of Government, the head of the department; or b) by any authority, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the authority for the conduct of the business of the authority as well as the authority, Environmental Law

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shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. However, the Head of the Department or any other person referred to above shall not be liable to any punishment if he proves that i.

the offence was committed without his knowledge; or

ii.

he exercised all diligence to prevent the commission of such offence.

Where an offence under this Act has been committed by a Department of Government or any authority referred to above and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any officer other than the Head of the Department, or in case of an authority any person other than the persons referred to above, then such officer or person shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Power to Make Rules.-Section 4 of the Act vests, the Central Government with the power to make rules for carrying out the provisions of this Act. Every rule made under this Act shall be laid, as soon as may be after it is made, before each house of the Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions.

FOREST CONSERVATION: ROLE OF CENTRAL GOVERNMENT The provision of prior approval provided under FCA, as a condition precedent for nonforestry activities in the forest area, has transformed the Central Government into the guardian of forest protection. The obvious assumption is that the guardian will act only in the interests of safeguarding the forest environment, and will be ever vigilant pre-empting any assault on forest. The provisions of FCA have been subject to judicial scrutiny on many occasions. The question is whether the courts have lived up to the expectations of the law and helped in evolving viable strategies of forest management. PRIOR APPROVAL BY THE CENTRAL GOVERNMENT During the period before the commencement of FCA, mining activities in a forest area were regulated only with the conditions listed under the licence granted by the government. Prior approval of the Central Government was not necessary. This seems to have been the position

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taken in State of Bihar v Banshi Ram Modi.4 The facts of the case show that while the licensee was mining for mica under a license granted before the commencement of FCA, the licensee came across two other minerals-feldspar, and quartz. The state government permitted him to mine these two minerals. The forest department objected, as there was no prior approval from the Central Government. According to the court, the action of the state government did not violate FCA as the new minerals were found in an area already broken up and cleared for mining, although, this may not be the case for mining in a virgin area. The court instructed that the mining should not lead to felling of trees. However, the assumption, without any scientific evidence, that mining more minerals than the one for which license is given in an area already broken up would not bring environmental damage, does not seem to be entirely correct. In Ambica Quarry Works v State of Gujarat,5 the Supreme Court made it categorically clear that renewal of a license after FCA came into force can be made only on getting prior permission from the Central Government. The FCA was passed in order to arrest ecological imbalance, which is a consequence of deforestation. While holding that the power of the authorities is not coupled with the duty to renew all licenses once given and stressing the need to for prior approval, the court observed: The primary duty was to the community and that duty took precedence, in our opinion, in these cases. The obligation to the society must predominate over the obligation to the individuals. Ambica Quarry, was followed by the Supreme Court in Rural Litigation and Entitlement Kendra v State of Uttar Pradesh.6 The Supreme Court and high courts kept up this trend. In Divisional Forest Officer v S Nageswaramma,7 it was held that renewal of lease is not a vested right of the lessees. In State of Madhya Pradesh v Krishandas Tikaram,8 renewal was objected by the forest department. The order of the state government cancelled the licence. The Supreme Court held that the cancellation was proper in the absence of prior approval. There appears to be a clear divide between forest officials and mining authorities. The former acts as champions of forest protection, whereas the latter plays the role of a messiah of development. The Patna High 4

AIR 1985 SC 814. AIR 1987 SC 1073. 6 AIR 1988 SC 2187. 7 (1996) 6 SCC 442. 8 (1995) Supp 1 SCC 587. 5

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Court in Upendra Jha v State of Bihar,9 settling a dispute between the two and following Ambica Quarry Works and distinguishing Banshi Ram, approved the stand of the forest department on the rule of prior approval and renewal of a licence. The court observed: Now even if any part of reserved forest or forest land was part of any lease-hold and such reserved forest had been broken or forest had been cleared on the basis of that lease granted prior to coming into force of the Act; no renewal of that lease or fresh grant in respect of that area can be given by the State Government without prior approval of the Central Government, because any such renewal or a fresh grant of such area is bound to lead to further deforestation and cannot help reclaiming back the areas where deforestation have taken place. The Allahabad High Court, in Pyari Devi v State of Uttar Pradesh,10 endorsed prohibition of mining in an area declared to be reserve forest after the mining lease had been granted, and before its expiry. The lessee could file a suit against the government for violation of the conditions of the lease, but the prohibition was valid. Courts were consistent in holding that for mining in reserved .forests or protected forests, prior approval of the Central Government was necessary. In most cases, licences granted or renewed against this mandate were disapproved and set aside. In Supreme Court Monitoring Committee v Mussoorie Dehradun Development Authority,11 the Supreme Court, instead of stopping non-forest activity, directed the respondent to enlist proposals for ex post facto approval by the Central Government. It is pertinent to note that FCA does not envisage ex post facto approval, and only provides for 'prior' approval. However, the court directed the Central Government to ascertain, whether the grant was made on extraneous considerations and if so, identify the persons or officers responsible, and whether criminal action could be taken against those responsible. Is the state government entitled to exclude an area from obtaining prior approval In KM Chinnappa v Union of India,12 the apex court was categorical in disapproving this exclusion allowed by the state government. The question was whether the permission to continue mining in an area subsequently declared as a national park was valid. FCA makes prior

9

AIR 1988 Pat 263. AIR 2004 All 70. 11 (1997) 11 SCC 605. 12 AIR 2003 SC 724. 10

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approval mandatory inspire of the right to get renewal under the mining Rules. Admittedly, the Central Government had not accorded prior approval. Hence, the exclusion of mining company's land from the need to get prior approval was impermissible. The Government of Karnataka, while examining the study of impact of mining on flora and fauna in the sensitive area, had recommended only a temporary working permission for two years after the expiry of the licence. This was manifestly to avoid .hardship. Further, the forest advisory committee under the FCA had recommended renewal for only four years till the year 2005. The court did not find any reason to disagree with these recommendations. It ordered that the renewal for this period would be subject to the recommendations made by the committee on ecological aspects. Interestingly, the judgment noted that the state and Central Governments were not very consistent in their approach about the period for which the mining activities could be permitted. The court was of the view that irrespective of the reasons for such inconsistency, it was imperative that 'due application of mind should have been made before taking a particular stand and not to change color like a chameleon and that too not infrequently'.

It is, therefore, settled that being a non-forest activity, mining it the forest area can be allowed only with the prior approval of the Central Government. A licence is entitled to get renewal if the area was already broken up before FCA came into force. However, the renewal is not automatic; it can be rendered only with prior approval.

SYMBIOTIC RELATIONSHIP & TRIBAL PEOPLE TRIBAL LANDS In the past several years, the economically advanced and politically powerful ethnic groups had established their hold over tribal lands. In certain cases, the agricultural poor were also given lands in the forest area. The changed scenario pushed the tribal people into enslavement and extinction. It became necessary that the tribal population should be saved from being exploited by plainsmen. Various states took up legislative measures for restoration of tribal lands already alienated to the non-tribal, and prohibition of further alienation. In the state of Karnataka a common legislation was enacted to save lands granted Environmental Law

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to both Scheduled Castes and Scheduled Tribes. It provided that purchase of such lands by people not belonging to these groups would be null and void, and that the commissioner was authorised to take possession of the lands for restoration. The buyers challenged the law. According to the Supreme Court, the law was enacted for uplifting the Scheduled Castes and Scheduled Tribes, and for implementing the Directive Principle enshrined in art 46 of the Constitution of India. The state of Maharashtra also enacted legislation for annulment of transfers of lands from the tribal people and restoration. In the state of Andhra Pradesh, there was a presumption in its regulations that the land held by a non-tribal in a Scheduled Area had been transferred to him by a tribal person. Frequently it happens that the tribals being totally ignorant and unable to prove their title to the land fall an easy prey to the scheming by non-tribals, while the non-tribals could be reasonably expected to prove their title. In the absence of a statutory protection, it is likely that the economically stronger non-tribals would take over all available lands and wipe out the very identity of the tribals. A modified Andhra Pradesh regulation framed by the Governor in relation to tribal lands in the Scheduled Area had a provision that the transfer by a 'person' of any immovable property would be 'absolutely null and void', unless such transfer is made to a person belonging to Scheduled Tribe or to the member of a co-operative society composed solely of the Scheduled Tribes. The interpretation given by the apex court to the expression 'person' was significant and revolutionary. 'Person' includes state government. Manifestly the state government is also barred by the regulation to transfer even its own land to a non-tribal person. This liberal and wider interpretation would maximise allotment of government land in Scheduled Area to the tribal people realising socio-economic justice. A restricted interpretation would lead to easy transfer of land by the state to the non- tribals.

TRIBAL PEOPLE: FRIENDS OR FOES Two decisions, Pradeep Krishen v Union of India13 and Animal and Environment Legal Defence Fund v Union of India14 relate to tribal rights and privileges in the forest area. In Pradeep Krishen, the Supreme Court suggested:

13

AIR 1996 SC 2040. AIR 1997 SC 1071.

14

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If one of the reasons for the shrinkage is the entry of villagers and tribals living in and around the sanctuaries and the national parks, there can be no doubt that urgent steps must be taken to prevent any destruction or damage to the environment, the flora and fauna and wildlife in these areas.

Besides felling trees, certain other acts are also prohibited in reserved forests. Nobody can hunt, shoot, fish, trespass, or pasture cattle in contravention of the rules. Further, once the state government declares an area a sanctuary or national park, the limits of rights and claims are determined. In Animal and Environment Legal Defence Fund v Union of India, the Supreme Court had to resolve a dispute between two neighbouring states on the rights of tribals. In that case, the Government of Madhya Pradesh allowed fishing permits to the displaced tribal people in Totladoh reservoir within Pench National Park. The Government of Maharashtra objected on environmental grounds, such as potential danger of felling trees, harm to crocodiles and turtles in the reservoir, disturbance to water birds and migratory birds, and the possibility of lighting fires and throwing garbage and polythene bags around and into the reservoir. The fact that displaced persons were not systematically rehabilitated weighed more in the balance. The court observed: ... while every attempt must be made to preserve the fragile ecology of the forest area and protect the Tiger Reserve, the right of the tribals formally living in the area to keep body and soul together must receive proper consideration. Undoubtedly, every effort should be made to ensure that the tribals, when resettled, are in a position to earn their Livelihood. Emphasising stricter vigilance on the exercise of fishing rights and allied matters, the court insisted on photo identity for access of permit holders, check posts to bar transgress into other parts, daily record of fish catch, prohibition of tribal fishermen from lighting fires on the banks of reservoir, and sanction of more monitoring facilities. The court referred to Pradeep Krishen's case on the depletion of forests and noted that India had forests far less than the stipulated one third of its land. The observations in both the aforesaid cases are relevant in assessing the symbiotic relationship between the tribals and the forest. In the past, tribal people were considered protectors of forests. However, when needs of development started to displace them from their habitat, the tribals were seen as a group posing a threat to the environment. This conflict Environmental Law

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lies at the very foundations of all legislative policies, and is a bye-product of the socioeconomic development. As the apex court has indicated, urgent steps are necessary for bridging the gaps in the relationship between tribals and the forests.

TRIBALS OUSTED IN DEVELOPMENT In Narmada Bachao Andolan v Union of India and Ors,15 the issue of tribal people ousted from a forest area for development has been dealt with. Several villages and a few towns in Gujarat and Rajasthan would be benefited by augmentation of water supply when the height of the reservoir was raised to a certain height. However, rehabilitating thousands of tribal people ousted from their habitat was a gigantic problem. While holding that engineering works for raising the dam and rehabilitation measures could go hand in hand, the Supreme Court found that the lands allotted to the displaced people are equal to, or better in quality than, what the oustees originally owned. Although, the land will submerge, however, according to the court, the construction of the dam will result in multi-fold improvement in the environment of the area where the canal waters reach. In the court's view, the command area in which the displaced are resettled is more productive than the affected land.

EMPOWERMENT OF TRIBAL PEOPLE The forest dwelling Scheduled Tribes were living in the forests for generations. Their plight was miserable in the past. It continued to be so inspire of several ameliorative efforts on the part of the states. Non- recognition of their rights over forest land and habitat was a historical injustice. The forest rights law of 2007 aims to do away with this injustice. Endowing the tribal people and other forest dwellers with certain rights and duties, the law makes an attempt to recognise the symbiotic relationship of the tribal people and the forest. The gram sabhas are empowered to make decisions to regulate access to community resources and stop any activity which adversely affects the wild animals, forest and the biodiversity. It has become the duty of all holders of forest rights, gram sabha and village institutions that these decisions are complied with. The Sixth Schedule provides the forest dwellers in the Sixth

15

AIR 2000 SC 3751.

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Schedule areas a form of self-government. The forest dwelling people in the Fifth Schedule areas do not have such a democratic system. Empowering gram sabhas to take important ecodecisions is a step forward in this direction. They make decisions involving a meaningful forest management in their respective localities. There are lingering fallacies that cast shadows on the forest rights law. One example is the provision in the Forest Rights Act that has the potential for conversion of tribal villages into revenue villages. Vast tracts of forest lands in tribal areas, now under occupation by plainsmen, can be converted to revenue lands and subsequently to private lands. Such a clandestine process of privatization will defeat the very purpose of the law meant to restore the tribal people to their original habitat. Another predicament is the consequence that flows from the provision for 'critical wildlife habitat. The forest rights in critical wildlife habitat can be subsequently modified or resettled when the officials under Wildlife (Protection) Act 1972 are satisfied that the activities or impact of the presence of holders of forest rights are 'sufficient to cause irreversible damage and threaten the existence of the said species and their habitat. As a result, the forest area where the tribal people have freedom to move in search of subsistence and livelihood is to a great extent reduced. The induction of the critical wildlife habitat can be criticized as affecting the very purpose of the Act. Any law relating to forest rights treating the tribals as foes, and not as friends, of the forest habitat will only help mask the intruders, and treat forest communities as scapegoats. This fact has been considered and accepted by the National Tiger Conservation Authority when it suggested that tiger reserve states should recruit local forest dwelling tribes as field staff. It is essential to strike the distinction between those who are in the forests for survival and livelihood, and those who are there for commercial purpose and for making profit. 'It is the latter category that needs to be prevented from gaining access to forests. This is the real fight.

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Forest Protection & Conservation

FOREST CONSERVATION AND JUDICIAL PROCESS In India, the judiciary has shown deep concern for the forest conservation. The judiciary has not only played a pivotal role in a manner to interpret the forest laws to protect the forest and environment but also it has shown judicial activism by entertaining public interest litigations under articles 32 and 226 of the Constitution. The Supreme Court and High Courts while protecting environment and promoting sustainable development have delivered many important judgments.

NATIONAL NEEDS, FOREST CONSERVATION AND JUDICIAL ATTITUDE: In R.L. & E. Kendra, Dehradun v. State of U.P.,16 (popularly known as Doon Valley Case) was the first case of its kind in the country involving issues relating to environment and ecological balance, which brought into sharp focus the conflict between development and conservation and the Court emphasized the need for reconciling the two in the larger interest of the country. This case arose from haphazard and dangerous limestone quarrying practices in the Mussoorie Hill Range of Himalayas. The mines in the Doon Valley area denuded the Mussoorie Hills of trees and forest cover and accelerated soil erosion. The Supreme Court was cautious in its approach when it pointed that it is for the Government and the Nation and not for the court, to decide whether the deposits should be exploited at the cost of ecology and environment or the industrial requirements should be otherwise satisfied. But the concern of the Court for protecting the forest and maintaining the ecological balance in the Doon Valley was evident when it observedWe are not oblivious of the fact that natural resources have got to be tapped for the purposes of the social development but one cannot forget at the same time that tapping of resources have to be done with requisite attention and care so that ecology and environment may not be affected in any serious way, there may not be depletion of water resources and long term planning must be undertaken to keep up the national wealth. It has always to be remembered that these are permanent assets of mankind and are not intended to be exhausted in one generation.

16

AIR 1985 SC 652.

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In R.L. & E. Kendra v. State of U.P.,17 the Court took note of the fact that mining activity has to be permitted to the extent it is necessary in the economic and defence interests of the country as also for safeguarding of the foreign exchange position. In the subsequent Doon Valley case, the Supreme Court allowed a mine to operate until the expiry of lease as an exceptional case on undertaking by the lessee that he would subject land taken on lease to afforestation. When it was brought to the notice that the lessee had made a breach of undertaking and was continuing mining in an uncontrolled manner causing damage to the forest cover of the area, the Court directed the lessee to pay rupees three lacks to the fund of the monitoring committee which had been constituted earlier by the Court to supervise the afforestation programme to be undertaken by the lessee. The H.P. High Court in Kinkri Devi v. State,18 relied on Doon Valley case and pointed out that if a just balance is not struck between the development and environment by proper tapping of natural resources then there will be violation of the constitutional mandate of articles 48-A and 51-A(g). The Court rightly pointed out that the natural resources have got to be tapped for the purpose of social development but the tapping has to be done with care so that the ecology and environment may not be affected in any serious way. In A.R.C. Cement Ltd. v. State of U.P., 19 the Supreme Court did not permit the cement factory to run in the Doon Valley area where the mining operation had been stopped and in order to restore the Doon Valley to its original character it was directed to be declared as nonindustrial. However, the government was asked to provide an alternate site for shifting the cement factory of the petitioner. In Tarun Bharat Sangh v. Union of India,20 the State Government of Rajasthan, though professing to protect the environment by means of the notifications and declarations, was itself permitting the degradation of the environment by authorizing mining operations in the area declared as "reserve forest". In order to protect the environment and wildlife within the protected area, the Supreme Court issued directions that no mining operation of whatever nature shall be carried on within the protected area.

17

AIR 1987 SC 2426. AIR 1988 H. P. 4. 19 1993 Supp (1) SCC 57. 20 1992 Supp (2) SCC 448. 18

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The Full Bench of Kerala High Court, in Nature Lovers Movement v State of Kerala, 21 considered the question of regularization of diversion of forest-land subject to certain conditions issued by the Central Government. The Court in this case reconciled between the preservation of environment and development of economy. The Court took notice of conditions laid down by the Central Government and which were substantially complied with by the State Government. The State Government had also framed a compensatory forest scheme. The Court also took note of socio-economic problem of eviction of about 66,000 families and 35 lacs of people from the forests, which in its opinion was impracticable and thus the Court upheld the approval granted for the diversion. However, the occupants were made liable to pay compensation for injury caused by them to general public in view of "polluter pays principle".

In this case the Court also held that the Forest (Conservation) Act, 1980has no retrospective operation and it operates only prospectively and thus the prior approval contemplated in section 2 of the Act is inapplicable insofar as the occupations and encroachments of forestland made prior to the commencement of the Act namely, 25.10.1980. In A. Chowgule & Co. Ltd. v. Goa Foundation,22 the Supreme Court has rightly explained that solution to replace the original trees by alien and non-indigenous but fast growing varieties does not serve the purpose. Suitability of the trees and other flora to be planted in the deforested land should be of prime consideration. Grant or Renewal of Lease in Forest Area and Judicial Attitude:In State of Bihar v. Banshi Ram,23 tile Supreme Court held that where a lease was granted for winning a certain mineral prior to the coming into of the Act, and the lessee had applied to the State Government after coming into force of the Act for permission to win and carry any new miners from any part of a forest area which was already utilized for non-forest purposes by carrying out mining operations before the coming into force the Act, the prior approval of the Central Government under section 2 for purpose of granting such permission was not necessary. Before granting permission to start mining operations on a virgin area, section 2 of the Act to be complied with, it is not necessary to seek the prior approval of 21

AIR 2000 Ker. 131. Supra Note 15. 23 AIR 1985 SC 814. 22

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Central Government for purposes of carrying out mining operations in a forest area, which is broken up or cleared before the commencement of the Act. In Ambika Quarry Works v. State of Gujarat, 24 the Supreme Court held that the Forest (Conservation) Act, 1980 applies to renewal of leases, which had originally been granted before the Act came into force. The State Governments may renew the pre-existing mining leases only with the review and approval of the Centre Government as contemplated under section 2 of the Act. In Rural Litigation & Entitlement Kendra v. State of Uttar Pradesh,25 the Supreme Court held that the Act does not permit mining in the forest area. The Act applies to renewals as well and even if there was a provision for renewal in lease agreement or exercise of lessee's option, the requirements of the Act had to be satisfied before such renewal could be granted. Whether there is a case of first instance or renewal following exercise of option by lessee, the compliance of section 2 of the Act is necessary as a condition precedent. In State of A.P. v. Anupama Minerals,26 the authorities had the power to grant the renewal of the mining lease as per the terms of the lease. However, after the coming into operation of Forest (Conservation) Act, 1980, the mining lease fell within the reserved forest area and hence the authorities refused to grant the renewal of the lease. It was held that the refusal by the authorities was proper because exercise of power by public authority is coupled with duty to fulfil the conditions for such exercise. In State of M.P. v. Krishandas Tikaram,27 the respondents were granted mining lease in the forest area in the year 1966. After the coming into force of the Forest (Conservation) Act, 1980, the State Government decided to renew the lease for twenty years in terms of the, original grant in favour of the respondent, without obtaining the prior approval of the Centre Government. The Court, before it came into effect by registering, held cancellation of the order of renewal, valid.

24

AIR 1987 SC 1037. Supra Note 1. 26 1995 Supp. (2) SCC 117. 27 1995 Supp. (1) SCC 587. 25

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In T. Veerabhadrappa v Ministry of Mines & Steel,28 the petitioner was granted 230 acres of land on a long lease of thirty years for mining iron ore. On expiry of the lease period the petitioner applied for the renewal of lease, which was processed by the State GovernmentThe Central Government made reference to the Advisory Committee constituted under section 3 of the Act and on the receipt of its recommendation declined to grant the approval prayed for. The refusal was justified on a three-fold plea namely, (i) that the proposed renewal was bound to result in an accelerated soil erosion keeping in view the fact that the area in question was undulating with steep slopes; (ii) the proposal of the State Government did not establish the inevitability of diversion of forest land for a non-forest purpose and (iii) that the lessee had during a period of 30 years or so made no attempt to rehabilitate the area ,mined by him. Thus, the decision to refuse the renewal of lease was taken after considering all relevant materials. Merely because communication issued by the Government conveying its decision did not refer to the reasons underlying the decision was not considered as a ground for interfering with a decision of refusal to accord renewal of the lease.

FELLING OF TREES, FOREST CONSERVATION AND JUDICIAL ATTITUDE: For the protection and conservation of forests it is necessary that there should be no illegal felling of trees. The judiciary has shown its concern to stop the illegal felling of trees in forests.

THE GODAVARMAN CASES: THE HIGH-WATER MARK IN FOREST PROTECTION The idea of sustainable development, i.e., the balance between environment and development, had its influence on the judiciary in interpreting the provisions of laws relating to the forest. Various dimensions of forest protection were examined by courts. TN Godavarman Tirumulpad v Union of India,29 is a remarkable illustration of the concept of sustainable development, the pronouncements of the apex court can be summarised as follows:

i.

Forest includes the area noted in the government records as forest, irrespective of ownership.

ii.

Mining licence in such an area without prior approval is violative of the FCA. All ongoing activities under such invalid licence must cease. The state governments have to take necessary remedial measures.

28

AIR 1998 Kant. 412. AIR 1997 SC 1228.

29

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iii.

Running sawmills of any kind is a non-forest activity. All sawmills within a distance of 100 kilometres from the border of the state of Arunachal Pradesh are to be wound up.

iv.

Responsibility is imposed on each state government to report on the number of sawmills, actual capacity of the mills, proximity to the nearest forest and their sources of timber.

v.

Complete ban on felling of trees in the tropical wet ever-green forests in Arunachal Pradesh is essential 'because of their significance to maintain ecological balance needed to preserve biodiversity'. Felling of forests in other states except in accordance with working plans is suspended.

vi.

Movement of the cut trees and timber is banned with the exception of certified timber required for defence purposes.

vii.

Each state government should constitute expert committees to identify forest areas, denuded forests and areas covered by plantation trees and to assess the sustainable capacity of the forest qua saw mills.

viii.

In the state of Jammu and Kashmir, no private agencies should deal in felled trees or in timber. No permission should be given for sawmills within a distance of eight kilometres from the boundary of demarcated forest area.

The Godavarman case came back within four months for review of the follow up action as directed by the court. Interestingly, the court proceeded to constitute a high power committee to oversee the strict and faithful implementation of its orders in the North Eastern region. Directions were given that this committee should prepare an inventory of all timber, whether in transit or lying in mills and to examine whether the use or sale of timber or timber products could be permitted through the state forest corporations under its overall supervision. That the collection of minor forest produces, including bamboo, could be exempted from the ban, is a significant holding of the court. Unlicensed saw mills and veneer and plywood industries in the states of Maharashtra and Uttar Pradesh were to be closed. The plantations were ordered to deliver all shade trees felled in janmam areas in Tamil Nadu to the state government. However, plantations were permitted to fell fuel trees subject to certain restrictions. The court did not allow the plantations any further clearing in janmam lands. The pronouncements in the Godavarman's cases are important: in many respects. Under the wildlife protection law, trade and commerce of wild animals, animal articles and trophies could be done only through a state corporation. The Godavarman cases seem to suggest that Environmental Law

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sale of timber and felled trees shall also be made through state corporations, and no through private channels.

It is significant that the apex court continued to monitor the activities in a series of orders subsequently. Proliferation of wood-based industries is feared to be the main cause of forest degradation. Any industrial venture in an area must be subject to the maintenance of environment and ecology, and must cater to the demands of bonafide local needs. In one Godavarman case, the Supreme Court asked for measures such as relocation of industries, identification of ecologically sensitive areas, consultation with leading institutions and NGOs having expertise in forest ecology, intensive patrolling and vigilance against exploitation of vulnerable areas, and institution of state level committees to evolve licensing regulations. In another Godavarman case in 1999 the court detected absence-of faith on the part of government agencies and prohibited cutting of trees, even those considered as diseased, till further orders. In still another Godavarman case in the same year the court wondered why the state government could not take up preventive measures against ecological degradation in Doon valley. In the year 2000 the court had to examine whether forest officers could detain railway wagons containing illegal timber, suspend licence, disconnect electricity to the delinquent industries, sell the illegal timber and keep the sale proceeds in a bank.

Slowly and gradually the apex court was interfering in the executive domain of control over forest from the year 1997 onwards. In 2002, the court emphasized the need of appointing its Central Empowered Committee (CEC) which would function for five years, study all problems relating to conversion of forest for non-forestry activities and report to the court. THE INFLUENCE OF GODAVARMAN CASES The above-mentioned Godavarman dicta had a lasting impact on the development of environmental norms in forest protection. In Niyamavedi v State of Kerala,30 the Kerala High Court held that the object of a biological park not being a non-forest purpose, prior approval of the Central Government was not necessary. In Goa Foundation v Conservator of Forests, Panaji,31 the Bombay High Court held that Godavarman cases do not put an embargo on the high courts' jurisdiction to pursue individual violations of forest conservation law. Emphasising upon the wider meaning of forest, the court pointed out that a housing colony 30

AIR 1993 Ker 262.

31

AIR 1999 Born 177.

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coming up after conversion of orchard and natural reserve zones would be an 'eyesore' in the green belt of hillock towards the river Mandovi in Goa. Similarly, it held in another Goa Foundation case that prior approval was necessary not only for use of forest, but also for use of dry crop lands contiguous to the forest. In Bansuiara Marble Mines v Union of India,32 the Rajasthan High Court pointed out that prevention of orders of different courts and tribunals at variance with one another was the unequivocal message of the apex court in the Godavarman case by banning all ongoing activities. Notably, the Orissa High Court disallowed establishment of saw mills within 10 kms from the boundary of a forest area in view of an earlier Godavarman case that no fresh licence could be granted within the distance and without prior approval of the CEC.

The Godavarman definition of forest as the 'land recorded as forest in the government records irrespective of its ownership' had its sway in Kamal Kishore v State of Madhya Pradesh,33 in which the Madhya Pradesh High Court held that the acts taken under an old law in the princely state are acts done or proclaimed by the erstwhile ruler declaring reserved forest, protected forest or village forest and are deemed to have continued as such under the Indian Forest Act.

USE OF FORESTS FOR NON-FOREST PURPOSES AND JUDICIAL ATTITUDE: Section 2 of the Act applies not merely to cases of mining leases granted in respect of areas within the reserved forests but to all cases where forest-land is sought to be used for nonforest purposes" Conservation of forests includes not only preservation and' protection of an existing forest but also re-afforestation. Forests have to be regularly cut to meet the needs of the country. At the same time re-afforestation should go on to replace the vanishing forests. It is a continuous and integrated process. In T.N. Godavarman Tirumulpad (87) v. Union of India,34 the Supreme Court has once again emphasized on the principle of sustainable development. The court held that the Forest Policy, 1998, which has a statutory flavour, dictates that deprivation of economic benefit must be subordinated to ensuring environmental stability and maintenance of ecological

32

AIR 1999 Raj 154. AIR 2006 MP 167. 34 (2006) 1 SCC 1. 33

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balance. Non-fulfilment of this principle would be violative of Articles 14 and 21 of the Constitution. The point in issue in this case was whether before diversion of forest land for non-forest purposes and consequential loss of benefits accruing from the forests, should not the user agency of such land be required to compensate for the diversion? Answering affirmatively, the court suggested the levying of appropriate Net Present Value (NPV) of such diverted forest land as the price of such forest use on the user agency. The NPV is a method by which future expenditures (costs) and benefits are levelalized in order to account for the time value of money. The object behind NPV is to levalise costs. The court further directed that whatever be the NPV to be charged as determined by the expert committee 'in terms of this judgment, the amount shall be updated every three years. The court also took note of the role of Central Empowered (CEC) and Compensatory Afforestation Fund Management and Planning Authority (CAMPA) constituted by the Ministry of Environment and Forests (MOEF) in exercise of the powers conferred by section 3 (3) of the Environment (Protection) Act, 1986. In T.N. Godavarman Tirumulpad (91) v. Union of India, 35 the mining company was permitted to carryon operation of mine in the forest area, national parks and sanctuaries, subject to deposit of Rs. 50 crores towards NPV with CEC and an undertaking to' deposit the remaining amount of NPV when determined. In this case the court also permitted the Railways to use about 13 hectares of forest land in national sanctuary subject to deposit of such amount of NPV which may be directed. An undertaking was given to deposit Rs. 7.57 crores in this case. In M.C. Mehta v. Kamal Nath,36 it was brought to the notice of the Supreme Court that large area of the bank of River Beas which was part of protected forest had been given on lease purely for commercial purposes to the motel of the respondent. Even the Board in its report had recommended de-leasing of the said area. The Court had no hesitation in holding that the Himachal Pradesh Government committed a patent breach of public trust by leasing the ecologically fragile land to the motel management and the prior approval for lease granted by the Government was quashed. The Court in this case applied the "precautionary principle" and "polluter pays principle" and the motel management was asked to show cause why 35

(2006) 5 SCC 23. (1997) 1 SCC 388.

36

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pollution fine should not be imposed on it. Since this case had been filed by way of public interest litigation (PIL) under article 32 of the Constitution, the Supreme Court subsequently held that "pollution fine" cannot be imposed under article 32 of the constitution and thus the said notice be withdrawn. But the matter did not end there. The Court further held that it can, in exercise of its jurisdiction under article 32, award "exemplary damages" in PIL and the person causing the pollution can be held liable to pay "exemplary damages" so that it may act as deterrent for others not to cause pollution in any manner, Accordingly, the Court directed that a show cause notice be issued to the motel management as to why in addition to damages, "exemplary damages" be not awarded against it? After considering the reply of the motel management in this regard, the Court quantified rupees ten lacs as the "exemplary damages" in this case.

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BIBLIOGRAPHY 

Jaswal, P. K, Jaswal Nishtha, Environmental Law, 3rd Edition, 2013, Faridabad: Allahabad Law Agency.



Leelakrishnan, P., Environmental Law in India, 2nd Edition, 2010, Nagpur: Lexis Nexis Butterworths Wadhwa.



Tiwari, H. N., Environmental Law, 4th Edition, 2010 Faridabad: Allahabad Law Agency.

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