Writ Petition No. 12512 of 1992 · Andhra Pradesh High Court

The compensatory afforestation referred to in the prayer of the writ petition and also in the G.O., referred to above is a concept propounded, according to the respondents 1 to 4 on the basis of certain guidelines said to have been issued under the Act of 1980. In spite of a specific query from the Court, none of the Counsel appearing for the respondents could point out the authority of law under which such guidelines were issued. It is therefore necessary to briefly examine the scope and object of the Forest Act, 1980. Though the enactment was published in the Gazette of India on the 2nd December, 1980, by virtue of a fiction under section 1(2), the Act is deemed to have come into force on 25.10.1980, in other words, with retrospective effect. Section 2 of the Act of 1980 creates an embargo on the power of the State Government to pass any order directing; that any area which is a `reserved forest’ within the meaning of the appropriate State law shall cease to be a ‘reserved forest.’ It also places a further embargo on the power of the State government to permit the user of any forest land for a non-forest purpose.

The expression non-forest purpose itself is defined under the Explanation in Section 2. However, Section 2 enables the State Government to take any such decision referred to earlier with the prior approval of the Central Government. In other words, the embargo created under sub-section 2 is not absolute but can be got over by the State Government by taking the prior approval of the Central Government before any such decision referred to earlier is taken. Section 3 of the Act contemplates the constitution of a committee to advise the Government of India in any matter where the prior approval of the Government of India is sought by any State Government under Section 2. Section 3(a) and 3(b) provide for penalties for the contravention of the Act. Section 4 empowers the Government of India to make necessary rules for the implementation of the provisions of the Act of 1980. In exercise of the power under Section 4, the Government of India made rules called the Forest Conservation Rules, 2003.

Rule 3 deals with the composition of the Committee contemplated under Section 3. Rule 4 deals with the terms of appointment of the non-official members of the said committee. Rule 5 deals with the conduct of the business of the committee. Rule 6 deals with the procedure to be adopted by any `user agency’ - a defined expression under Rule 2(h) - which wants to use any forest land for a non forest purpose. It stipulates an application in the prescribed form to be sent to the State Government. The State Government on receipt of such a request is required to forward the proposal to the Government of India. On receipt of such an application, the Government of India is mandated to refer the application under Rule 7 to the Committee contemplated under Section 3 for its advice. Under Rule 7, the Committee was required to have due regard to the following factors. a. b. c. d. Whether the forests land proposed to be used for non-forest purpose forms part of a nature reserve, national park wildlife sanctuary, biosphere reserve or forms part of the habitat or any endangered or threatened species of flora and fauna or of an area lying in severely eroded catchment; Whether the use of any forest land is for agricultural purposes or for the rehabilitation of persons displaced from their residences by reason of any river valley or hydro-electric project; Whether the State Government or the other authority has certified that it has considered all other alternatives and that no other alternatives in the circumstances are feasible and that the required area is the minimum needed for the purpose; and Whether the State Government or the other authority undertakes to provide at its cost for the acquisition of land of an equivalent area and aforestation thereof.” Rule 7 sub-rule (3) also authorizes the Committee to suggest any conditions or restrictions of use of any forest land for any non-forest purpose which conditions in the opinion of the Committee would minimize the adverse environmental impact.

After the receipt of the advice of the Committee, the Government of India is required to take a final decision whether to grant or reject the approval contemplated under section 2 of the Act of 1980. If that is the broad scheme of the Act and the Rules framed thereunder, it is not known as to what is the authority of law under which the guidelines referred to earlier have been issued. At best there can be guidelines to be kept in mind by the Central Government while taking a decision before granting or rejecting the approval in a given case. In my view, the guidelines do not create any legal obligations on any user agency, nor can they be blindly applied in every case where the approval of the Central Government is sought. Be that as it may, the legislative field of forests is to be found in List III of the 7th Schedule of the Constitution under Entry 17A. Both the Parliament and the concerned state Legislature would be competent to make laws regarding forests.

The entry came to be inserted in the concurrent list by the 42nd Amendment Act, 1976. Prior to the amendment, the subject matter was assigned to the State legislature under Entry 19 of List II. In exercise of the power under the original entry, the State of Andhra Pradesh made Act 1/1967 called the A.P. Forest Act (for short hereinafter referred to as ‘the State Act’). Section 3 of the State Act empowers the State Government to constitute any land to be a reserved forest, the procedure for such a constitution is specified under sections 4 to 15. Section 4 authorises the State Government to issue a preliminary notification indicating its proposal to constitute any land to be a reserved forest. Section 6 stipulates that a proclamation be made in the manner stipulated therein specifying the intention of the government to constitute a reserve forest and inviting objections from interested persons for such constitution.

Section 7 of the Act bars the acquisition of any rights (except those rights which accrue by succession or the rights which accrue under a contract with the government), after the notification under Section 4 is issued. Under section 8 of the Act, the Forest Settlement Officer, is required to enquire into the claims made by any interested person pursuant to the proclamation made under Section 6. Section 10 deals with the nature of the claims that can be made. It recognizes claims of rights in or over any land which is proposed to be constituted a reserved forest. Under Section 10 the Forest Settlement Officer after an enquiry referred to under Section 8 is required to pass an order either admitting or rejecting any claim made after recording the reasons therefore. Sub-section (2) of Section 10 stipulates that if a claim is admitted either wholly or in part, the Forest Settlement Officer can either exclude that portion of the land from the limits of the proposed reserved forest or determine the amount of compensation payable for the right on the basis of which the claim is made or acquire the land in the manner provided under Land Acquisition Act over which a valid claim is found to exist.

Thereafter, under Section 15, a final notification specifying definitely the limits of the forests declared to be reserved forests. The other provisions of the Act may not be relevant for the purpose of the present enquiry except Section 23 which authorizes the State Government to direct by a notification that any reserved forest or any portion thereof shall cease to be a reserved forest with effect from such date as may be notified. From the above analysis of the provisions of the State Act, it is clear that the State Government is vested with the power both to constitute a reserved forest as well as denotify any area which is already constituted a reserved forest. It is this power of the State Government to denotify any area which is already constituted into reserved forest that is restricted by Section 2 of the 1980 Act. Prior to the commencement of the 1980 Act, there was no embargo on the power of the State Government to delete any area from out of an area constituted to be a reserved forest barring the embargo of a bonafide exercise of such power.

That is the legal position emerging from the analysis of the above two enactments, which is required to be applied to the facts of the present case. It is unfortunate that the various departments of the government of the State of Andhra Pradesh do not work in harmony. Insofar as the land in question in dispute in this case is concerned, the forest department represented by respondents 2 & 3 herein asserts that the land is a part of the reserved forest by virtue of some notifications issued in the year 1965 and 1971. I proceed on the assumption that as a matter of fact, the lands in dispute were notified under the A.P. Forest Act constituted it into a reserved forest as claimed by the respondents 2 and 3. The Revenue department (represented by the 4th and 5th respondents herein) of the State of Andhra Pradesh thought it fit to alienate the land in favour of the petitioners under the two government orders referred to earlier for a purpose specified in the said GOs - construction of the ash pond.

De hors the provisions of the 1980 act, various activities enumerated under Section 20 of the State Act, are proscribed activities if indulged in, and attract penalties of both imprisonment and fine. Cutting of the trees, clearing or breaking up of land for any purpose are some of the activities proscribed under Section 20. Notwithstanding the sanctions created by the Legislature against such activity in the reserved forest, the State of Andhra Pradesh thought it fit to alienate the land in dispute in favour of the petitioner for a specified purpose of construction of an ash pond-a purpose which is inherently inconsistent with the scheme of the Section 20. While the purpose of the Forest Act is to preserve the forests in the State of Andhra Pradesh, which is felt necessary in the larger public interest, obviously the Government of Andhra Pradesh believed that an equally competing or a superior public interest exists in enabling the petitioner to establish a thermal power plant.

It therefore alienated the land in dispute in favour of the petitioner, a decision which is undoubtedly within the powers of the State Government assigned to it under the constitution. In which case, such a decision in my view can only be treated as a decision under Section 23 of the Act to delete the areas in dispute which till then formed part of the reserved forest. At the time of such a decision, the State Government made an alienation subject only to one condition of payment of monetary consideration. Therefore by the time the Parliament made the Act of 1980, the land in dispute stood excluded from the purview of the operation of the A.P. Forest Act. Hence, the 1980 Act of the Parliament in my view would have no application to the lands in question which stood already excluded from a constituted reserve forest under the State Act. The voluminous correspondence that took place between the parties to this litigation only demonstrates the utter non application of mind to the core issue and absolute ignorance of law and apathy for the rights of the petitioner.

By an accident that the petitioner happens to be a Corporation owned and controlled by the Union of India with vast financial resources to squander about in this kind of litigation. Both the officers of the State of Andhra Pradesh dealing with the problem and the Union of India never thought it fit to examine the core issue of the applicability of the 1980 Act to the lands in question. The insensitivity of the administration is further highlighted in the argument of respondents 2 and 3 that as Section 23 of the A.P. Act requires a notification to exclude any piece of land from the notified reserved forest and as no such notification was issued by the State, the petitioner cannot claim that the land is excluded from the reserved forest. It sounds very fine as a proposition of law, but in the background of the fact that the alienation was made by the State under government orders duly signed by the concerned Secretary of the Revenue Department, the failure to issue an appropriate notification in the gazette under Section 23 of the State Act only highlights how hyper technical and insensitive to public interest the administration can be.

The land was admittedly alienated for the purpose of construction of the ash pond which activity is impermissible unless the land is excluded from the rigors of Section 20 of the A.P. Forest Act. If really the Government believed that it would be detrimental to permit either the petitioner or its officers to carry on any activity unconnected with the forest purpose in the land in dispute, the Government ought not to have alienated the land in favour of the petitioner with full knowledge of the purpose for which the petitioner seeks to put the land to. Yet, the forest department, obviously, believes that these various departments of the government are independent sovereign entities within the State Government and asserts the illegality of the alienation made by the revenue department. To say the least, a shameful state of affairs and an utter lack of coordination among the various departments of the government.

If this be the plight of corporation owned by the Government of India in handling the issue, this Court can well imagine what misery it would be for an ordinary citizen, who should have the misfortune of dealing with any one of the departments. Apart from that in such a unseemly quarrel between the two departments of the State of Andhra Pradesh on one hand and the Government of India and one of its instrumentalities (the petitioner) on the other hand, none of the officers concerned dealing with the matter ever thought it fit to have a comprehensive examination of the matter. Assuming that there is some dispute to be resolved having regard to the legal status of the parties, the Governments of the Union of India and the State and the instrumentality of the State (petitioner) and their respective constitutional duties and obligations, all of them should have taken note of the repeated caution given by the Supreme Court in no uncertain terms that in all such matters the dispute be resolved in accordance with law instead by means of appropriate deliberations of these various organs of the Constitutional government instead of rushing to the Courts involving considerable expenditure and wastage of public time.

In Oil and Natural Gas Commission v. Collector of Central Excise, the Supreme Court held as follows :

3. This Court has on more than one occasion pointed that Public Sector Undertakings of Central Government and the Union of India should not fight their litigations in Court by spending money on fees of counsel, court fees, procedural expenses and wasting public time. Courts are maintained for appropriate litigations. Court’s time is not be consumed by litigations which are carried on either side at public expenses from the source. Notwithstanding these observations repeated on a number of occasions, the present cases appear to be an instance of total callousness.

Notwithstanding the repeated directions of the Supreme Court such as the one extracted above, the respondents kept on pushing the petitioner to this Court repeatedly in an area, which was really not necessary for this Court to be really involved.

I therefore do not see any reason to grant any relief to the petitioner. The writ petition is therefore dismissed. Insofar as the respondents are concerned, I deem it appropriate that though this Court declined to grant any relief in favour of the petitioner, the respondents be directed to pay costs of Rs. One Lakh each within a period of 21 days from today to the A.P. State Legal Services Authority. Its further open to both Union of India and the State of Andhra Pradesh to collect the above amount from any one of the officers or all of them who are responsible for this mindless litigation all these years if either of the Governments so wish to collect it. -------------- pgs/knk 05.04.2006