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TMI Blog2009 (3) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... Smritis etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main moto of social life is to live in harmony with nature. It was regarded as a sacred duty of every one to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora fauna and every species of life. 3. With a view to make provision for better protection and management of forests in the State, Maharaja of Travancore enacted The Travancore Forest Regulations of 1068 [for short, the Regulations ]. Clause 3 of the Regulations provided that Diwan of the State could, with the sanction of Maharaja constitute any land at the disposal of Government a reserved forest after following the procedure prescribed in Clause 4, i.e., publication of notification in Government Gazette containing proposal for declaring the particular land as a reserved forest, holding of inquiry by the Forest Settlement Officer and issue of proclamation und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracts of reserved forest/forest land were unauthorisedly occupied/encroached and used for non-forest purposes. After formation of the new State, the Government took a serious view of the unauthorised occupation/encroachment of forest land and decided that encroachments made after 1.4.1957 will be removed. However, that decision remained on papers and nothing appears to have been done to remove unauthorised occupation/encroachments of forest land despite the fact that the legislature of the new State enacted the Kerala Forest Act, 1961 [for short, the 1961 Act ] for protecting forests. After about four years, the State Government constituted range based committees for demarcation of encroached portions of forest land. The State Government also constituted a committee under the chairmanship of Shri K.P. Radhakrishna Menon, Special Collector (Forest Conservation) for preparing a scheme for protection of valuable forests in the State and also for suggesting solution to the problem created due to settlement of large number of persons in the areas declared as reserved forests. After considering the report of the committee, the State Government issued G.O.(P)98/63/Agri. dated 30.01.1.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department. No. 51289/FGI/83/AD Trivandmm Dated: 26.6.1986 From The Agricultural Production Commissioner Secretary (Agriculture Forests) To, The Secretary to Government of India, Ministry of Forest and Environment, Department of Forest and Wild Life, Government of India, Krishi Bhavan, New Delhi. Sir, Sub: Forests-Assignment of Forest Lands which have already come under Agricultural occupations-clearance under Forest Conservation Act requested. Several forest areas in Kerala came to be exposed to human occupation particularly since 1956, primarily due to the very heavy pressure of population and secondarily due to Governmental programmes like colonization schemes, grow more food schemes, arable land scheme, hydro power projects, plantations etc. In the sixties and seventies, the perspective was one of providing land based employment to landless people. It was on account of this that some of the above schemes came under implementation. Forest lands were transferred for non forest purposes. Pressure built up for further expansion into forest areas adjoining converted lands. Government did carry out evictions of unauthori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Malayattur Ernakulam 30.00 9. Malayattur Idukki 410.00 10. Kottayam Idukki 1500.00 11. Kottayam Idukki 13443.94 (Cardamom Hill Reserve) 12. Periyar Wild Idukki 480.00 Life Sanctuary 13. Konni Pathanamthitta 60.00 14. Thenmala Quilon 70.00 Total 28588.159 So far as Udumpanchola Taluk (Kottayam Division) is concerned it was re-surveyed during the period from 1974 to 1977. This re-survey was done close to the crucial date of 1.1.1977. Resurvey records are also very authentic having been prepared after following the statutory formalities under the Survey and Boundaries Act including detailed field survey. So far occupations in Udumpanchola taluk have not been subjected to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secretary, Forest and Wildlife (C) Department, Kerala, requiring the latter to furnish information about the assurance given by the Chief Minister, Kerala on the floor of the legislature and also asked for the details of the encroachment of forest area sought to be regularized in different districts and the scheme of compensatory afforestation. The State Government furnished the necessary information. Thereafter, the Central Government granted conditional approval for regularization of pre-1.1.1977 encroachments of forest land. This was conveyed by the Ministry of Forest and Environment, Government of India to the Government of Kerala vide letter No. 8-118/86-FC dated 23.3.1993, the relevant portions of which are extracted below: After careful consideration of the proposal of the State Government the Central Government hereby agrees in principle for approval for diversion of 28,588.159 hectares forest land in Idukki, Pathanamthitta, Thrissur, Ernakulam and Kollam Districts for regularization of pre-1.1.1977 encroachments in Kerala subject to the fulfillment of following conditions, (i) Ground verification demarcation of area to be regularized in favour of individual encroa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made available for compensatory afforestation. After taking cognizance of the State Government's response, the Central Government vide its letter No. 8-118/86-FC dated 31.1.1995 accorded final approval under Section 2 of the 1980 Act for diversion of 28,588.159 hectares forest land in Idukki, Pathanamthitta, Thrissur, Emakulam and Kollam districts for regularization of pre-1.1.1977 unauthorised occupation/encroachments. 8. The appellant, which is a society formed for protection of environment and ecology in the State of Kerala, challenged the decision of the government to regularize unauthorised occupation/encroachment of forest lands by filing writ petition under Article 226 of the Constitution. It prayed for grant of a declaration that the Government of Kerala is not entitled to dereserve the reserved forest or permit use of forest land for any non-forest purpose without obtaining approval of the Central Government in terms of Section 2(iii) of the 1980 Act. The appellant further prayed that pattayams (title deeds) issued in respect of forest land without obtaining approval of the Central Government should be quashed. In the affidavit filed on behalf of the appellant bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formulated a scheme for compensatory afforestation covering an area of 57,180/- hectare of degraded forest area which represents double the area approved for regularisation. Administrative sanction has already been accorded to the said scheme which is estimated to cost ₹ 113 crores and fund has been earmarked to this project. Till 1994 the Scheme had been implemented in an area of 1233 hectares spread over the districts of Trivandrum, Kollam, Idukki, Thrissur, Wynad and Kasargode. In the counter affidavit the following further averments were made: The policy of the Government is that all post-1977 conversions should be evicted. There was no intention for the Government to regularise the entire conversion up to 25.10.1980. The Assembly passed a unanimous resolution and the cut off date was fixed as 1.1.1977 as against 1.7.1977. After an extensive correspondence for several years the Union Government agreed to the diversion of 28,588 hectares of forest land occupied prior to 1.1.1977. This decision was announced in a public function organized in Nadumkandom in Idukki district on 20.3.1993. The State Government's policy decision was taken and declared by the then Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of forest land did not involve violation of any constitutional or legal provision. 4. The decision of the Central Government to grant approval to the use of forest land for non-forest purpose is not violative of Article 48A or 51A of the Constitution. 5. The provisions of the 1993 Rules are legal and valid. 6. The cut off date, i.e., 1.1.1977 fixed for assignment of forest land is not arbitrary. 7. The unauthorised occupants/encroachers are liable to pay compensation for the injury caused to the general public by using forest land for non-forest purposes. 12. Learned Counsel for the appellant submitted that his client is not serious in pressing the challenge to Central Government's decision to approve the use of forest land for non-forest purpose, namely, assignment of forest land to pre-1.1.1977 unauthorized occupants/encroachers because the said decision was taken for solving the problem being faced by 50,000 families which are settled in forest areas for last more than five decades, but argued that the declaration made by the Full Bench of the High Court that the 1980 Act is prospective and is not applicable to the cases involving use of forest land for non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /encroachments have been regularized keeping in view the history of such occupation/encroachment and the fact that 50,000 families would have been displaced if the Central Government had decided against such regularization by way of assignment under the Kerala Land Assignment Act and the 1993 Rules. 15. Shri L. Nageswara Rao, learned senior counsel appearing for the private respondents argued that his clients are not at all concerned with the issue of retrospective application of 1980 Act because on a reference made by the State Government, the Central Government has already approved assignment of land to pre-1.1.1977 occupants/encroachers. At the same time, he submitted that while considering such an issue the court is duty bound to keep in view the human face of the problem. He pointed out that thousands of landless families had occupied the land declared as reserved forest and used the same for cultivation because they had no other source of sustenance. 16. We have given serious thought to the entire matter and scrutinized the records. Sections 3, 4, 7 and 22 of the Kerala Forest Act, 1961 (for short 'the 1961 Act), Sections 2, 3 and 3A of the 1980 Act and the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer. 22. No right acquired over Reserved Forests except as herein provided.- No right of any description shall be acquired in or over a Reserved Forest except under a grant or contract in writing made by or on behalf of the Government or by or on behalf of some person in whom such right or the power to create such right was vested when the notification under Section 19 was published or by succession from such person: Provided that no patta shall, without the previous sanction of the Government, be granted for any land included within a Reserved Forest and every patta granted without such sanction shall be null and void. Forest (Conservation) Act, 1980 [As amended by Act 69 of 1988] 2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose.- Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing- (i) that any reserved forest (within the meaning of the expression reserved forest in any law for the time being in force in that State) or any portion thereof, shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between 1951 and 1980, more than half of it for agriculture. The decisions of the State Government to regularize encroachments from time to time seem to have acted as strong inducement for further encroachments in forest areas and the problem remained as elusive as ever for want of effective and concerted drive against this evil practice. 2. The National Forest Policy, 1988 has also observed the increasing trend in encroachments on forest land and stated that these should not be regularized. Implementation of this pronouncement has been examined by this Ministry keeping in view the constraints of various State Governments some of whom have expressed that they stand committed to regularize encroachments of a period prior to 1980. The issue figured prominently in the Conference of the Forest Ministers held in May, 1989 and was later examined by an inter-Ministerial Committee, set up by this Ministry in consultation with the representatives of some of the States. Keeping in view the recommendations of the Forest Ministers' Conference and the Committee referred to the above, and with due approval of the competent authority, the following measures are suggested for review of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it should give district-wise details. 1.11 All cases of proposed regularization of encroachments should be accompanied by a proposal for compensatory afforestation as per existing guidelines. 1.12 No agricultural practices should be allowed on certain specified slopes. X X X CLARIFICATION X X X 2. Doubts have been raised as to whether all encroachments that had taken place up to 25.10.1980 could be regularized in accordance with an eligibility formula by which some earlier encroachments were regularized. 3. A perusal of the paragraph reproduced above will make it clear that there are 2 pre-conditions for any encroachments to be considered for regularization. These are: (a) The State Government should have taken the decision on regularization of encroachments before 25.10.1980; and (b) that the decision should be with reference to some eligibility criteria (normally expected to be related to social and economic status of encroachers, location and extent or encroachment, cut off date of encroachment, etc.,) 4. It would be seen that the encroachments which are proposed to be considered for regularization, subject to the prescribed conditions, are those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atta in such land without previous sanction of the Government. The 1980 Act was enacted by virtue of Entry 17-A of List III in the Seventh Schedule of the Constitution. Section 2 (as originally enacted) contains a non obstante clause. It lays down that notwithstanding anything contained in any other law for the time being in force in a State, no State Government or authority shall without prior approval of the Central Government make any order directing that any reserved forest or any portion thereof, shall cease to be reserved or that any forest land or any portion thereof may be used for any non-forest purpose. By Act 69 of 1988 Clause (iii) was inserted in Section 2 and what was implicit in Clause (ii) was made explicit. Explanation appearing below Section 2 was also amended and it was made clear that the phrase 'non-forest purpose' will mean breaking up or clearing of any forest land or portion thereof for cultivation of tea, coffee, spices, etc. and any purpose other than reafforestation. However, activity or work relating or ancillary to conservation, development and management of forest and wildlife was excluded from the ambit of the phrase 'non-forest purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res of land which formed part of reserved forest was allotted to the respondents for undertaking mining operations much before enactment of the 1980 Act. After enforcement of the 1980 Act, the State Government renewed the mining lease without obtaining prior approval of the Central Government. Divisional Forest Officer, Kodarma Forest Division restrained the respondents from continuing the mining activity on the ground that prior approval of the Central Government had not been obtained. The respondents challenged the said restriction by filing writ petition in the High Court of Patna (Ranchi Bench). The High Court ruled that Section 2(ii) of the 1980 Act was not attracted in the respondents case because the area had already been broken for mining activity. This Court approved the decision of the High Court and held: Reading Clause (ii) of and Explanation to Section 2 of the Act it is clear that after the commencement of the Act no fresh breaking up of the forest land or no fresh clearing of the forest on any such land can be permitted by any State Government or any authority without the prior approval of the Central Government. But if such permission has been accorded before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Halsbury in Quinn v. Leathern). But in view of the mandate of Article 141 that the ratio of the decision of this Court is a law of the land, Shri Gobind Das submitted that the ratio of a decision must be found out from finding out if the converse was not correct. But this Court, however, was cautious in expressing the reasons for the said decision in State of Bihar v. Banshi Ram Modi. This Court observed in that decision that the result of taking the contrary view would be (SCC p. 648, para 10) that while the digging for purposes of winning mica can go on, the lessee would be deprived of collecting felspar or quartz which he may come across while he is carrying on mining operations for winning mica. That would lead to an unreasonable result which would not in any way subserve the object of the Act. There was an existing lease where mining operation was being carried on and what was due by incorporation of a new term was that while mining operations were being carried on some other minerals were available, he was giving right to collect those. The new lease only permitted utilisation or collection of the said other minerals. In the instant appeals the situation is entirely diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to Rule 4(6) of the Rajasthan Minor Mineral Concession Rules, 1986 too, no mining lease could have been granted or renewed within the forest without clearance from the Central Government in accordance with the Forest (Conservation) Act, 1980 and the rules made thereunder . Admittedly, no such prior approval or clearance of Central Government was obtained. The Chairman of the committee, Shri Justice M.L. Jain has recommended that 215 mines mentioned in Appendix 'A' to his report, which are situated wholly within the protected forest should be closed forthwith. There can hardly be any valid objection in law to the said recommendation. Similarly, with respect to 47 mines mentioned in Appendix 'B' to the report, the learned Chairman has recommended that they should be closed forthwith insofar as they fall within the protected forest. To this recommendation also, there can be no valid objection in law. 22. In State of A.P. and Ors. v. Anupama Minerals and Ors. [1995] 1 SCR 8, the Court referred to the earlier judgment in Ambica Quarry Works v. State of Gujarat and Ors. (supra) and held: The purpose of the Act is conservation of forests and to prevent the depleti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of this Court in State of Bihar v. Banshi Ram Modi has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this Court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay. 24. The ratio of the above noted judgments is that the 1980 Act is applicable to all forests irrespective of the ownership or classification thereof and after 25.10.1980, i.e., date of enforcement of the 1980 Act, no State Government or other authority can pass an order or give a direction for de-reservation of reserved forest or any portion thereof or permit use of any forest land or any portion thereof for any no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to 01.01.1977, prior approval of the Govt. of India is necessary. The respondent will submit an additional proposal to Government of India for grant of approval for diversion of forest land, as and when joint verification is completed. It may be pointed out that instructions have been issued in unequivocal terms to take stern action to evict the encroachments after 01.01.1977. In view of the stand taken by the State Government, the grievance made by the appellant in that regard will have to be treated as pre-mature. However, we deem it necessary to clarify that as and when the State Government takes a decision to assign 10,000 hectares of forest land or permit use thereof for any non-forest purpose and approaches the Central Government for grant of approval in terms of Section 2(ii) and (iii), the latter shall be duty bound to examine the proposal keeping in view the object of the 1980 Act and the guidelines framed in the light of the National Forest Policy and then take appropriate decision. Needless to say that the appellant or any other person who may feel aggrieved by the decision of the State Government to assign 10,000 hectares of forest land or any portion thereof or p ..... 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