3. ⦁ 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 cause ecological imbalance
and thus led to environmental deterioration. The President
of India promulgated the Forest (Conservation) Ordinance
on 25 October, 1980. It simply aims at putting restriction
on the dereservation of forests or use of forest-land for
non-forest purposes. The Act is intended to serve a
laudable purpose as is evident from the Statement of
Objects and Reasons of the Act, which reads :
(1)Deforestation causes ecological imbalance and leads to
environmental deterioration. Deforestation had been
taking place On a large scale in the country and it had
caused widespread concern
(2)With a view to checking further deforestation, the
President promulgated on 25th October, 1980, the Forest
(Conservation) Ordinance, 1980
4. ⦁ 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,
is, the date on which the Forest
(Conservation) Ordinance, 1980 was
promulgated.
5. ⦁ Section 2 of the Act deals with restriction on the dereservation 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 re0afforestation
6. ⦁ "non-forest purpose" means the breaking up of 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 reforestation,
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
7. ⦁ Any person aggrieved by an order or decision of the State
Government or other authority made under section 2, on or after
the commencement of the National Green Tribunal Act, 2010,
may file an appeal to the National Green Tribunal established
under section 3 of the National Green Tribunal Act, 2010, in
accordance with the provisions of that 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
which may be referred to it by the Central Government.
8. 🞂
(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.
9. ⦁ Section 3A 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.
10. ⦁ 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.
11. ⦁ 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.
12. 🞂
⦁ 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 it also 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.
R.L. & E. Kendra, Dehradun v. State of U.P, AIR 1985 S.C. 652
(popularly known as Doon Valley Case) has 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 Mussoorie Hill Range of Himalayas. The mines in the
Doon Valley a 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
13.
14. ⦁ In Tarun Bharat Sangh v. Union of India, 1992 Supp (2) SCC
488 the State Government of Rajasthan though professing
to protect the environment by means of the Migrations
and declarations, was itself permitting the degradation of
the garnishment 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.
⦁ In State of MP. v. Krishandas Tikaram, 1995 Supp. (1) SCC
587 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.
15. ⦁ The HP. High Court in Kinkri Devi v. State of H.P., AIR 1988 H.P. 4
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 51A(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.
⦁ The Full Bench of Kerala High Court, in Nature Lovers Movement
v. State of Kerala, AIR 2000 ker. 131 considered the question of
regularization of diversion of forest-land subject to certain
conditions issued by the Central Government. The Court in this
case reconciled between the preservation of environment and
development of economy. The Court took notice of conditions
laid down by the Central Government and which were
substantially complied with by the State Government. The State
Government had also framed a compensatory forest scheme. The
Court also took note of socio-economic problem of eviction of
about 66,000 families and 35 lacs of people from the forests,
which in its opinion was impracticable and thus the Court upheld
the approval granted for the diversion. However, the occupants
were made liable to pay compensation for injury caused by them
to general public in View of "polluter pays principle".
16. ⦁ In A. Chowgule & Co. Ltd. v. Goa Foundation, AIR (2008) 12 SCC 814 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.
⦁ In Krishnadevi Malchand Kamathia v. Bombay Environmental Action
Group, (2011) 3 SCC 363 the court held that salt harvesting by solar
evaporation of seawater is not permitted in area that is home to
mangrove forests. Mangroves fall squarely within the ambit of Category I
(CRZ-I). Salt harvesting by solar evaporation of seawater in CRZ-l areas
is permitted only where such area is not ecologically sensitive and
important.
In State of AP. v. Anupama Minerals,1995 Supp. (2) SCC 117 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 fulfill the
conditions for such exercise.
17. ⦁ In TN. Godavarman Thimmulpad v. Union of India, (1997) 2 SCC 267
(popularly known as Forest Conservation case), the Supreme Court
issued interim directions that all the on-going activities within any forest
in any State throughout the country, without the permission of the
Central Government must be stopped forthwith. Running of saw mills
including veneer or plywood mills within the forests was also stopped.
Felling of trees in the State of Arunachal Pradesh has totally banned in
certain forests whereas in other forests, it was Suspended in accordance
with the working plan of the State Government. Movement of cut trees
and timber from any of the seven North-Eastern States to any other
State was completely banned. The Court issued directions to stop falling
of trees in other States such as the State of J&K, Himachal Pradesh and
Tamil Nadu, with a view to protect and preserve the forests. The
Supreme Court modified some of these directions subsequently. The
Court called for the comprehensive statement of all the States about
their past activity and their future programme to tackle the problem of
degradation and degeneration of forests.
⦁ In case of the Goa Foundation and another vs. The Konkan Railway
Corporation and Others, AIR 1992 Bom. 471, where it was sought that
the Konkan Railway Corporation should be compelled to obtain requisite
environmental clearance for its proposed rail alignment, the high court
reasoned that the corporation had set up a specialised committee and
engaged a "renowned engineer' and when they had given the 'green
signal', the court is not to interfere.
18. ⦁ In M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 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” can not be imposed under article
32 of the constitution and thus the said notice be withdrawn. But the
matter did not end there. The Court further held that it can, in exercise
of its jurisdiction under article 32, award "exemplary damages" in PIL
and the person causing the pollution can be held liable to pay
"exemplary damages" so that it may act as deterrent for others not to
cause pollution in any manner, Accordingly, the Court directed that a
show cause notice be issued to the motel management as to why in
addition to damages, ”exemplary damages" be not awarded against it."
After considering the reply of the motel management in this regard the
Court quantified rupees ten lacs as the “exemplary damages” in this
case.
19. ⦁ A perusal of the above mentioned decisions
clearly show that judiciary live to protect and
preserve the forests. At the same time it has
never been antithetical to the development. In
fact the whole approach of the judiciary is in
consonance with he sustainable development
and thus it must be appreciated.
