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

Environmental Law Page 2


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



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.

"Forest" was initially a "State" subject covered by Entry 19 in List II of the VII Schedule. 1AIR 1988 SC 2187.



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

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.



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.



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 de-

reservation 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 forest-

land 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,



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 753.3(2008) 12 SCC 646.



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 Forests-

Member (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 (non-

officials)- 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 committed-

a) 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,



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 non-

forestry 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



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

4AIR 1985 SC 814.5AIR 1987 SC 1073.6AIR 1988 SC 2187.7(1996) 6 SCC 442.8(1995) Supp 1 SCC 587.



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

approval mandatory inspire of the right to get renewal under the mining Rules. Admittedly,

9AIR 1988 Pat 263.10AIR 2004 All 70.11(1997) 11 SCC 605.12AIR 2003 SC 724.



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

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:

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

13AIR 1996 SC 2040.14AIR 1997 SC 1071.



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

lies at the very foundations of all legislative policies, and is a bye-product of the socio-



economic 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

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 eco-

15AIR 2000 SC 3751.



decisions 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.

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 observed-

We 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.

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

16AIR 1985 SC 652.17AIR 1987 SC 2426.



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 non-

industrial. 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.

The Full Bench of Kerala High Court, in Nature Lovers Movement v State of

Kerala,21considered the question of regularization of diversion of forest-land subject to

certain conditions issued by the Central Government. The Court in this case reconciled

18AIR 1988 H. P. 4.191993 Supp (1) SCC 57.201992 Supp (2) SCC 448.21AIR 2000 Ker. 131.



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 forest-

land 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

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.

22Supra Note 15.23AIR 1985 SC 814.



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.

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 Government-

24AIR 1987 SC 1037.25Supra Note 1.261995 Supp. (2) SCC 117.271995 Supp. (1) SCC 587.28AIR 1998 Kant. 412.



The 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 on-

going activities under such invalid licence must cease. The state governments have to

take necessary remedial measures.

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.

29AIR 1997 SC 1228.



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

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

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

30AIR 1993 Ker 262.

31AIR 1999 Born 177.



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 non-

forest 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

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,

32AIR 1999 Raj 154.33AIR 2006 MP 167.34(2006) 1 SCC 1.



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,35the 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

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 35(2006) 5 SCC 23.36(1997) 1 SCC 388.



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.

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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