By Alisha Dargar
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 streamflow 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 Pradesh 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 viewpoints, for instance, development activities like the construction of a 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 the formulation of legal policies and devices for the management of forests.
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 Section 5 of the Forest (Conservation) Act, 1980 has repealed this Ordinance.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 a restriction on the de-reservation of forests or the 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) Intending to check 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 the de-reservation of reserved forests and 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 the 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 restrictions 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 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 wildlife, namely, the establishment of check-posts, fire lines, wireless communications, and construction of fencing, bridges, and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.
In State of Kerala v Sunil Kumarthe 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 approval in respect of cases falling under categories mentioned in section 2 of the Act.
In A Chowgule & Co. Ltd. v Goa Foundation,it 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
ii. Any other matter connected with the conservation of forests 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 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 the 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.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 the 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,the Supreme Court made it categorically clear that renewal of a license after FCA came into force can be made only by 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.
The Supreme Court and high courts kept up this trend. In Divisional Forest Officer v S Nageswaramma,it was held that renewal of lease is not a vested right of the lessees. In State of Madhya Pradesh v Krishandas Tikaram, the renewal was objected to 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 Court in Upendra Jha v State of Bihar, 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 the 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,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,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, 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, 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 the impact of mining on flora and fauna in the sensitive area, had recommended only temporary working permission for two years after the expiry of the licence. This was manifested 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 colour like a chameleon and that too not infrequently'.
It is, therefore, settled that being a non-forest activity, mining in 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.
The forests are very important to our nature as they maintain the ecological balance. But, a frightening rate of deforestation all over the country has started causing ecological imbalances and harm to our environment. The Forest (Conservation) Act, 1980 was passed with the aim to protect the forests by controlling the rates of deforestation.
The Forest (Conservation) Act, 1980 came into force on October 25, 1980. This Act was enforced to protect the forests of our country. Forests are an important part of our nature; it maintains the whole ecosystem and water cycle of the earth. This Act was enforced to maintain ecology and to preserve the forest of our country. This Act also aims to regenerate the forests by planting trees and increase forest growth in our country.
Under the Act, the central government is vested with powers to make any new rule or to make any changes in the existing laws. It has put restrictions on the state government to make any decisions related to forests' matters mentioned in the Act without prior permission of the central government. It has also prescribed penalties for those who contravene any provision of this Act. The Act has also prescribed for the proceedings when the offences are committed by the government departments and officials. Under this Act, the Central government has also the power to form an advisory government to advise the government in matters related to forests.
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.
AIR 1988 SC 2187. (2006) 9 SCC 753. (2008) 12 SCC 646. AIR 1985 SC 814. AIR 1987 SC 1073. AIR 1988 SC 2187. (1996) 6 SCC 442. (1995) Supp 1 SCC 587. AIR 1988 Pat 263. AIR 2004 All 70. (1997) 11 SCC 605. AIR 2003 SC 724.
Author: Alisha Dargar
BBA LLB, 2nd Year
UNITED WORLD SCHOOL OF LAW, GANDHINAGAR, GUJARAT