- On one hand Apex Court is hearing about protection of National Parks, Tiger/Elephant Corridors that are ecologically sensitive areas and directing MOEF & CC to notify the Ecologically Sensitive Areas on the other hand the same MOEF & CC has granted exemption to Railways from seeking Prior Environmental clearance on the grounds that the land in question was owned by the Railways prior to 1980 i.e. from introduction of Forest Conservation Act, 1980. Apex Court has also time and again reiterated that the Public Interest is paramount, and State is under obligation to protect the same. The latest decision by the Apex Court while disposing of CIVIL APPEAL NO.10720 OF 2018 on 3rd July 2019 in the case of State of Meghalaya vs. ALL DIMASA STUDENTS UNION, DIMA-HASAO DISTRICT COMMITTEE & ORS has reminded the State that
Natural resources of the country are not meant to be consumed only by the present generation of men or women of the region where natural resources are deposited. These treasures of nature are for all generations to come and for intelligent use of the entire country. The present generation owes a duty to preserve and conserve the natural resources of the nation so that it may be used in the best interest of coming generations as well and for the country as a whole, however we find that the Ministry of Environment, Forest and Climate Change has granted exemptions to 13 railway projects worth Rs 19,400 crore and spread over 800 hectares of land, from the process of seeking forest permits on the grounds that the said land were owned by Railways before 1980 i.e. before implementation of Forest Conservation Act, 1980. in
- However, it appears that the Ministry of Environment, Forests & CC appears to be out of the definition of State as it has issued a circular exempting Railway from seeking mandatory prior Environmental Clearance involving ecologically sensitive areas like a national park, a tiger reserve, a tiger corridor and wildlife sanctuaries across the states of Uttar Pradesh, Madhya Pradesh, Karnataka and Goa.
3.The MOEF & CC in May 2019, the environment ministry issued a circular to all state governments that the Forest Conservation Act, 1980, will not apply for doubling of track and gauge conversion projects, if the land is railway land and was under non-forest use prior to 1980. Projects involving the construction of new lines would still need to apply for forest clearance.
4.We had filed Right to Application Number – MOENF/R/2019/50738/2 dated 29th July 2019 with Ministry of Environment, Forest and Climate Change to obtain details of the above said projects granted exemption for clearances by the Indian Railways. The response for the said RTI has been given as “Question is Vague”.
5.Further, for the said RTI, we have also been advised to visit the website link wherein it has been clarified that no such exemption to railways has been given Link - http://forestsclearance.nic.in/writereaddata/public_display/schemes/
6.However, once you visit the web site advised, it says there is no such document. Thus, it is evident from the response received from the Ministry of Environment, Forest and Climate Change, is not only elusive and evasive but establishes the fact that the said data has not been made available to public at large and appears to have been concealed for the reasons best known to the MOEF& CC.
7. It may be worthwhile mention here that the definition of Forest was read down by Hon’ble Supreme Court that clearly holds that once a forest is always a forest and therefore, non-forest activity cannot be carried out. This position has been upheld by many subsequent judgments pronounced by various Benches of the Apex Court. The relevant text of the judgments is reproduced as under:-
7.1 Hon’ble Supreme Court in T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 - SCC 267. Relevant definition is extracted as below:
“4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word “forest” must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term “forest land”, occurring in Section 2, will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] , Rural Litigation and Entitlement Kendra v. State of U.P. [1989 Supp (1) SCC 504] and recently in the order dated 29-11-1996 (Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority [ WP (C) No 749 of 1995 decided on 29-11-1996] ). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi [(1985) 3 SCC 643] 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”
7.2 In K. Balakrishnan Nambiar v. State of Karnataka, (2011) 5 - SCC 353, Hon’ble Supreme Court has highlighted that Forest Conservation Act, 1980 applies to all the forests irrespective of the ownership or classification thereof or classification thereof or before or after implementation of Forest Conservation Act, 1980. Relevant extract is laid down as below:
“17. Upon consideration of the earlier cases pertaining to the conservation of forests in India, this Court culled out certain principles. We may, however, notice only the observations made in paras 47 and 48, which are as under: (Nature Lovers Movement case [(2009) 5 SCC 373], SCC pp. 397-98)
“47. 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. the 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 non-forest purpose or grant any lease, etc. in respect of forest land to any private person or any authority, corporation, agency or organization which is not owned, managed or controlled by the Government.
48. Another principle which emerges from these judgments is that even if any forest land or any portion thereof has been used for non-forest purpose, like undertaking of mining activity for a particular length of time, prior to the enforcement of the 1980 Act, the tenure of such activity cannot be extended by way of renewal of lease or otherwise after 25-10-1980 without obtaining prior approval of the Central Government.”
7.3 Further, in Nature Lovers Movement v. State of Kerala, (2009) 5 - SCC 373, the Hon’ble Supreme Court has held that neither the State Government or any other authority can make an order or issue direction for de reservation of reserved forest or any portion thereof without obtaining prior approval from Central Government and the provisions of the FCA Act, 1980 needs to be followed by the Central Government. Relevant Para is highlighted as below:
“ 52. In the result, the appeal is disposed of in the following terms:
(1) The policy decision taken by the Government of Kerala to assign 28,588.159 hectare of forest land to unauthorized occupants/encroachers after seeking approval from the Central Government does not suffer from any legal infirmity and the High Court rightly declined to interfere with the said decision.
(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 or any portion thereof 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) Conclusion D recorded by the High Court in para 103 of the impugned judgment is legally unsustainable and is set aside.
(4) As and when the State Government decides to assign 10,000 ha of forest land to unauthorized occupants/encroachers, it shall do so only after obtaining prior approval of the Central Government and the latter shall take appropriate decision keeping in view the object of the 1980 Act and the guidelines framed for regularization of encroachments on forest land.”
7.4 CHOWGULE & CO LTD. vs GOA FOUNDATION - (2008) 12 SCC 646. The Hon’ble Supreme Court has highlighted that mere approval of Industrial Board or Collector cannot be construed as permission to deforestation and that the permission of Central Government as per the procedures laid down in the Forest (Conservation) Rules, 1981 needs to be obtained. Accordingly, the appeal was dismissed, and the appellant were asked to restore the land to its original use. Relevant para is extracted of the aforesaid judgment is listed as below:
“9. Writ Petition No. 113 of 1992 came up for final disposal before the Goa Bench on 21-7-2000 and was duly allowed and a writ of certiorari was issued quashing the lease agreement dated 1-11-1989. It was, inter alia, held that the various approvals/sanctions granted to the appellant by the Industries Department or by the Collector could not, by any stretch of imagination, be construed as permission for deforestation of the forest area, as envisaged by Section 2 of the Act as the said Act required prior approval of the Central Government after the procedure given in Rules 4, 5 and 6 of the Forest (Conservation) Rules, 1981 (hereinafter called “the Rules”) had been followed. The plea of the appellant that the area concerned was not a forest was also repelled with the observations that an average of 250 trees per hectare were growing on the land, as was clear from the affidavit filed by the Deputy Conservator of Forests, R. Nagbhushan Rao and that the entire area was heavily forested with 3000 trees and was in addition contiguous to the government forests.
10. The Bench also observed that merely because the land had been described as “dry crops land” would not change the nature of the land as it was apparently a wrong description, more particularly as Section 2 ibid. referred not only to forests but to forest land as well.
11. For arriving at its decision, the Division Bench relied upon the decision of this Court in T.N. Godavarman Thirumulkpad v. Union of India [(1997) 2 SCC 267] in which it was held that the term “forest” was to be given an extended meaning so as to cover all statutorily recognized forests, whether designated as reserved, protected or otherwise for the purpose of Section 2 of the Act. Having held as above, the Division Bench observed that the 12 ha being forest land, prior permission under Section 2 of the Act was the sine qua non for the execution of the lease deed dated 1-11-1989 and finally concluded as under:
“Does the subsequent act of granting permission communicated by letter of 18-5-1993 enable Respondent 4 to carry on with those development activities on 4.44 ha? The letter of 8-7-1997 seeks prior approval of the Central Government. In the instant case as we have been there is no prior approval for entering into a lease deed any of the term of lease can be set out. Condition 1 shows that the legal status of the forest land shall remain unchanged. The permission is coterminous with lease granted by the State Government with effect from 1-11-1989. Therefore, it proceeded on the footing that prior approval is being sought. In the instant case the records show that prior approval was not taken. In that context mere permission granted for development will be of no consequence. It is true that the petitioner has not challenged the subsequent permission granted. However, what is material to notice is that the area was a forest. In spite of that, without prior permission, Respondent 1 granted the lease in favour of Respondent 4. The lease was contrary to law. Once the lease was contrary to law, the question of the State Government applying at the behest of Respondent 4 for permission would not arise.
Even otherwise the land is situated to an adjacent government forest and the land is sought to be used for setting up of a beneficiation plant which involves dust and water pollution and consequent destruction of the adjoining forest. It will substantially affect the environment and ecology of the area. This, in fact, would affect the right to life. The petitioners in the petition have averred that the cutting of trees without obtaining permission was resorted to. In matters of ecology and environment and considering the principle of sustainable development, no person or organization, however high and mighty they may be, can be permitted to flout the law of the land.
Considering that, in our opinion, the lease granted in favour of Respondent 4 is stillborn, null and void. Respondent 1 is directed to restore the land to its original use.
Rule made absolute in the aforesaid terms. In the circumstances, there shall be no order as to costs.”
8. Apart from above, we would also like to highlight that Eco Sensitive Zone’s “ESZ’s” also called as Eco Fragile Areas “EFA’s” shall also be construed under the definition of forest. The ESZ’s and EFA’s are determined by the Central Government under Section 3(2)(v) of the Environment (Protection) Act, which empowers the Central Government to restrict areas in which any industries, operations or processes or class of industries, operations or processes can be carried out or shall be carried out subject to certain safeguards. Further, Rule 5(1) of the Environment (Protection) Rules, 1986 states that central government can prohibit or restrict the location of industries and carrying on certain operations or processes on the basis of considerations like the biological diversity of an area, maximum allowable limits of concentration of pollutants for an area, environmentally compatible land use, and proximity to protected areas. The above two clauses have been effectively used by the government to declare ESZs or EFAs. The relevant extract of the said Act and Rule is listed as below:
Sec 2(v) of the Environment (Protection) Act, 1986
“(2) In particular, and without prejudice to the generality of the provisions of subsection (1), such measures may include measures with respect to all or any of the following matters, namely: -
……………………………………………………………………………………………………………………….
(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;……….”
Rule 5(1) of Environment (Protection) Rules, 1986
“5. Prohibitions and restrictions on the location of industries and the carrying on processes and operations in different areas:
(1) The Central government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas-
(i) Standards for quality of environment in its various aspects laid down for an area.
(ii) The maximum allowable limits of concentration of various environmental pollutants (including noise) [or an area.
(iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted.
(iv) The topographic and climatic features of an area.
(v) The biological diversity of the area which, in the opinion of the Central Government needs to be preserved.
(vi) Environmentally compatible land use.
(vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted.
(viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified as such under the Wild Life (Protection) Act, 1972 or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international confcrcnce1 association or other body.
(ix) Proximity to human settlements.
(x) Any other factor as may be considered by the Central Government to De relevant to the protection of the environment in an area.”
9. Thus, the issue at hand involves exempting area that can impact a national park, a tiger reserve, a tiger corridor and wildlife sanctuaries across the states of Uttar Pradesh, Madhya Pradesh, Karnataka and Goa, which squarely militates order passed the Hon’ble Supreme Court Writ Petition (Civil) No 202/1995 by dated 11th December 2018 relevant text of which is reproduced as under :
“The learned ASG has informed us that there are 104 National Parks and 558 Wildlife Sanctuaries making a total of 662 National Parks and Wildlife Sanctuaries in the country.
The proposals for declaring areas around these National Parks and Wildlife Sanctuaries as Eco Sensitive Zone have been received from State Governments / UT Administrations for 641 National Parks and Wildlife Sanctuaries. No proposals have been received in respect of 21 National Parks and Wildlife Sanctuaries.
The proposals have been accepted and Notification has been issued in respect of 289 National Parks and Wildlife Sanctuaries as on 26.11.2018 and draft Notification has been prepared in respect of 206 National Parks and Wildlife Sanctuaries.
The declaration with regard to Eco Sensitive Zone is under process with the Ministry of Environment, Forests and Climate Change (MoEF) as well as with the State Governments in respect 146 National Parks and Wildlife Sanctuaries.
We expect the Ministry of Environment, Forests and Climate Change to actively pursue the preparation of the draft Notification and to issue a final Notification at the earliest.
The proposals for 21 National Parks and Wildlife Sanctuaries in respect of which proposals have not yet been received by the MOEF are as follows:
ASSAM
1. Pobitora Sanctuary
JAMMU AND KASHMIR
2. Hemis High Altitude National Park
3. Kishtewar National Park
4. Changthang Sanctuary
5. Hokersar Sanctuary
6. Trikuta Sanctuary
KARNATAKA
7. Jogimatti Sanctuary
8. Thimlapura Sanctuary
9. Yadahalli Chinkara Sanctuary
MAHARASHTRA
10. Deolgaon Rehekuri Sanctuary
11. Thane Creek Flamingo Sanctuary
12. Malvan Marine Sanctuary
MANIPUR
13. Siroi National Park
14. Khongjaingamba Ching Sanctuary
MEGHALAYA
15. Baghmara Pitcher Plant Sanctuary
NAGALAND
16. Fakim Sanctuary
17. Puliebadze Sanctuary
18. Rangapahar Sanctuary
UTTAR PRADESH
19. Dr. Bhimrao Ambedkar Bird Sanctuary
20. Pilibhit Sanctuary
WEST BENGAL
21. Jorepokhri Sanctuary
It is submitted by the learned Amicus that this issue has been pending since sometime in December 2006. 12 years have gone-by, but no effective steps have been taken by the State Governments in respect of the National Parks and Wildlife Sanctuaries mentioned above.
Under the circumstances, we direct that an area of 10 Kms around these 21 National Parks and Wildlife Sanctuaries be declared as Eco Sensitive Zone by the MoEF. The declaration be made by the MoEF at the earliest. Liberty is granted to the State Governments to move an application for modification of this order along with proposal only two weeks after submission of the proposals to the MoEF.
List the matters at the end of February, 2019.
In the meanwhile, interim order to continue.”
10. Thus, it is evident from the above that any such forests or ESZ’s or EFA’s as determined by the Central Government shall also be covered under the definition of forest for further necessary action.
11. Therefore, in view of the aforesaid facts and circumstances MOEF & CC is under legal obligation to withdraw the circular immediately.