2009 (3) TMI 1087 - SC - Indian Laws

Summary

Issues Involved:
1. Whether Section 2 of the Forest (Conservation) Act, 1980 is prospective in operation.
2. Whether the Government of Kerala could grant pattas/leasehold rights to unauthorized occupants/encroachers of forest land without prior approval of the Central Government.
3. The legality of the Kerala Land Assignment (Regularization of Occupation of Forest Lands Prior to 1.1.1977) Special Rules, 1993.
4. The validity of the policy decision taken by the Government of Kerala to regularize unauthorized occupation/encroachment of forest land.
5. The necessity of compensatory afforestation schemes.
6. The locus standi of the appellant to invoke jurisdiction under Article 226 of the Constitution of India.
7. The compliance of the Government of Kerala with the conditions imposed by the Central Government for regularization of forest land.

Detailed Analysis:

1. Prospective Operation of Section 2 of the Forest (Conservation) Act, 1980:
The Supreme Court analyzed whether Section 2 of the 1980 Act, which restricts the de-reservation of forests or use of forest land for non-forest purposes without prior approval of the Central Government, is prospective in operation. The Court held that the 1980 Act is applicable to all forests irrespective of ownership or classification and that no State Government or authority can pass an order for de-reservation or use of forest land for non-forest purposes without prior approval of the Central Government after 25.10.1980. The Court emphasized that the object of the 1980 Act is the conservation of forests and to prevent depletion thereof.

2. Grant of Pattas/Leasehold Rights Without Prior Approval:
The Court considered whether the Government of Kerala could grant pattas/leasehold rights to unauthorized occupants/encroachers of forest land without prior approval of the Central Government. The Court concluded that after the enforcement of the 1980 Act, the State Governments were denuded of the power to deal with reserved forests or forest land and permit use thereof for non-forest purposes without obtaining prior approval of the Central Government. The Court held that any such action taken by the State Government without prior approval is legally unsustainable.

3. Legality of the 1993 Rules:
The Supreme Court examined the legality of the Kerala Land Assignment (Regularization of Occupation of Forest Lands Prior to 1.1.1977) Special Rules, 1993. The Court upheld the validity of the 1993 Rules, noting that they were framed for the regularization of unauthorized occupation/encroachment of forest lands subject to certain conditions, including payment for the value of the land and compensatory afforestation.

4. Validity of the Policy Decision by the Government of Kerala:
The Court reviewed the policy decision taken by the Government of Kerala to regularize unauthorized occupation/encroachment of forest land. The Court found that the State Government had taken a policy decision to regularize such occupations made prior to 1.1.1977 and had obtained approval from the Central Government for the diversion of 28,588.159 hectares of forest land. The Court upheld the High Court's decision that the policy decision did not suffer from any legal infirmity.

5. Compensatory Afforestation Schemes:
The Court considered the necessity of compensatory afforestation schemes as a condition for regularizing unauthorized occupation/encroachment of forest land. The Court noted that the State Government had assured sufficient funds for compensatory afforestation and had formulated a scheme covering an area of 57,180 hectares of degraded forest land. The Court emphasized the importance of compensatory afforestation to mitigate the impact of regularizing forest land for non-forest purposes.

6. Locus Standi of the Appellant:
The Full Bench of the High Court held that the appellant, a society formed for the protection of the environment and ecology, had the locus to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. The Supreme Court did not find any reason to interfere with this finding.

7. Compliance with Conditions Imposed by the Central Government:
The Court examined whether the Government of Kerala had complied with the conditions imposed by the Central Government for regularization of forest land. The Court noted that the Central Government had granted conditional approval for regularization subject to ground verification, demarcation, and compensatory afforestation. The Court held that the State Government had taken steps to comply with these conditions and that any future decisions regarding the assignment of additional forest land must also comply with the conditions and obtain prior approval from the Central Government.

Conclusion:
1. The policy decision taken by the Government of Kerala to assign 28,588.159 hectares of forest land to unauthorized occupants/encroachers after seeking approval from the Central Government does not suffer from any legal infirmity.
2. After the enforcement of the 1980 Act, neither the State Government nor any other authority can make an order or issue direction for de-reservation of reserved forest or any portion thereof or permit use of any forest land for any non-forest purpose or assign any forest land or any portion thereof by way of lease or otherwise to any private person or to any authority, corporation, agency, or organization not owned, managed, or controlled by the Government except after obtaining prior approval of the Central Government.
3. The conclusion by the High Court that the 1980 Act is prospective and not applicable to pre-25.10.1980 use of forest land for non-forest purposes is legally unsustainable and is set aside.
4. Any future decision by the State Government to assign 10,000 hectares of forest land to unauthorized occupants/encroachers must be done only after obtaining prior approval of the Central Government, and the latter shall take appropriate decisions keeping in view the object of the 1980 Act and the guidelines framed for regularization of encroachments on forest land.