Forest conservation act, 1980

regulatory power of central government to protect forest. Judicial activism to protect forest. balance between development and ecology.

1. Forest Conservation Act, 1980 Environmental Law Rasika Roll no 97 LLB III Sem VI

2. A nation that destroys its soils destroys itself. Forests are the lungs of our land, purifying the air and giving fresh strength to our people .

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 w hich 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 Forest (Conservation) Act, 1980

4. This Act extends to whole of India except the States of J ammu & 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.  Scope and Application

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 Restriction on the Dereservation of Forests or Use of Forest-land for Non-Forest Purpose

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 Non-forest Purpose

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.  Appeal to National Green Tribuna l (Section 2A)

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. 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 :---

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.  Penalty for Contravention of the Provisions of the Acts (Section 3A  )

10. T he 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. Offences by Authorities or Government Departments (Section 3B)

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. Power to Make Rules.

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 Court for protecting the forest and maintaining the ecological balance in the Doon Valley was evident when it observed-   Forest Conservation and Judicial Attitude  

13. We are not oblivious of the fact that natural resources have got to be tapped for the purposes of the social development but one cannot forget at the same time that tapping of resources has to be done with requisite attention and care so that ecology and environment may not be affected in any serious way , there may not be depletion of water resources and long term planning must be undertaken to keep up the national wealth. It has always to be remembered that these are permanent assets of mankind and are not intended to be exhausted in one generation.

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 fo rest 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 f orests. 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 t he c onstitution 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 u nder 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. Conclusion