IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2116 OF 2000

Nature Lovers Movement … Appellant

Versus

State of Kerala and others … Respondents

J U D G M E N T

G.S. Singhvi, J.

1. Whether Section 2 of the Forest (Conservation) Act, 1980 (for short ‘the

1980 Act’) is prospective in operation and whether the Government of Kerala could,

without obtaining prior approval of the Central Government grant pattas/lease hold

rights  to  the  unauthorised  occupants/encroachers  of  forest  land  are  the  questions

which arise for determination in this appeal filed against the order of the Full Bench

of the Kerala High Court.

2. The Indian society has, for many centuries, been aware and conscious of

the necessity of protecting environment and ecology.   Sages and Saints of India lived

in forests.  Their preachings contained in Vedas, Upanishadas, Smritis etc. are ample

evidence of the society’s respect for plants, trees, earth, sky, air, water and every form

of  life.   The  main  moto of  social  life  is  to  live  in  harmony with  nature.   It  was

regarded  as  a  sacred  duty  of  every  one  to  protect  them.   In  those  days,  people

worshipped  trees,  rivers  and  sea  which  were  treated  as  belonging  to  all  living

creatures.  The children were educated by elders of the society about the necessity of

keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora

fauna and every species of life.

3. With a view to make provision for better protection and management of

forests  in  the  State,  Maharaja  of  Travancore  enacted  “The  Travancore  Forest

Regulations  of  1068” [for  short,  “the  Regulations”].   Clause  3  of  the  Regulations

provided that Diwan of the State could, with the sanction of Maharaja constitute any

land at the disposal of Government a reserved forest after following the procedure

prescribed  in  Clause  4,  i.e.,  publication  of  notification  in  Government  Gazette

containing proposal for declaring the particular land as a reserved forest, holding of

inquiry by the Forest Settlement Officer and issue of proclamation under Clause 6

inviting claims from the affected persons.  Clause 7 of the Regulations contained a bar

against acquisition of right in or over the land included in the proclamation between

the date of publication of proclamation and the date fixed by final notification  to be

issued under Clause 18.  It was also provided that no fresh clearings for cultivation or

for any other purpose shall be made on the land to be declared as reserved forest

except with the written permission of the Forest Settlement Officer.  Clauses 8 to 17

contained procedure for dealing with the claims of the individuals, disposal thereof by

the Forest Settlement Officer, hearing of appeals by Zila Court and the High Court.

Clause 20 of the Regulations provided for dereservation of reserved forest.  Clause 21

provided  for  penalties  against  trespass  and  damage  to  reserved  forest  and  acts

prohibited in such forests.  In terms of Clause 22 of the Regulations, the Government

could make rules to regulate the use of pastures and natural produce of any land at

the disposal  of the Government, which may not have been included in a reserved

forest.  By virtue of Clause 25, the Government was empowered to issue notification

for regulating or prohibiting vegetation in any forest or waste land not belonging to

the Government,  the breaking up or clearing of  land or the  firing  or clearing of

vegetation.   If  the  owner  of  the  land  was  to  decline  compliance  of  the  directions

contained in the notification, the Government could resume the forest or land on lease

for a specified period.

4. Notwithstanding the enactment of afore-mentioned Regulations, parts of

reserved forests in the erstwhile State of Travancore were unauthorisedly occupied by

landless persons who undertook agricultural operations for their survival. In 1940,

the Government of the State of Travancore sanctioned ‘Kuthakappattom’ grants in

the reserved forests. Thereafter, a policy was framed for leasing out forest lands to

individuals, co-operative societies and associations for cultivation of food crops.  In

1944,  Maharaja of  Travancore made Kuthakappattom Rules  for grant of  lease of

government land and trees by public auction.  During that period, forest lands in the

erstwhile State of Cochin were also made available for cultivation of food crops.  In

view of the liberal attitude and policies of the Governments of the erstwhile States,

large tracts of reserved forest/forest land were unauthorisedly occupied/encroached

and used for non-forest purposes.  After formation of the new State, the Government

took a serious view of the unauthorised occupation/encroachment of forest land and

decided  that  encroachments  made  after  1.4.1957  will  be  removed.  However,  that

decision  remained on papers  and   nothing  appears  to have  been done to  remove

unauthorised  occupation/encroachments  of  forest  land  despite  the  fact  that  the

legislature of the new State enacted the Kerala Forest Act, 1961 [for short, “the 1961

Act”]  for  protecting  forests.   After  about  four  years,  the  State  Government

constituted range based committees for demarcation of encroached portions of forest

land.  The State Government also constituted a committee under the chairmanship of

Shri  K.P.  Radhakrishna  Menon,  Special  Collector  (Forest  Conservation)  for

preparing  a  scheme  for  protection  of  valuable  forests  in  the  State  and  also  for

suggesting  solution  to  the  problem created  due  to  settlement  of  large  number  of

persons in the areas declared as reserved forests.  After considering the report of the

committee,  the  State  Government  issued  G.O.(P)98/63/Agri.  dated  30.01.1963  for

regularization of unauthorised occupation/encroachment of forest land made before

1.1.1960.  However, this time also effective steps do not appear to have been taken for

freeing  the  forest  land  from  those  who  unauthorisedly  occupied  or  made

encroachments after 1.1.1960.  As a result, more and more areas of forest land were

encroached,  sometimes  by  landless  poor  and  on  other  occasions  by  not  so  poor

segments of the society.  In order to find out a permanent solution to this perennial

problem, the  State  Government  constituted  another  committee,  which  came to be

known as Maniyangadan Committee. The report submitted by that committee  was

considered by  the  Parliamentary  Consultative  Committee on  Kerala,  which  made

several recommendations including the one that cut off date fixed for regularization

of unauthorised occupation/encroachment of forest land be changed from 1.1.1960 to

1.1.1968.  The State Government accepted some of the recommendations and issued

GO(P)98/68/Agri. dated 7.6.1968.  Even this did not deter people from making further

encroachment on forest land and use the same for non forest purposes and due to lack

of  political  will  the  Government  continued  to  postpone  drastic  action  till  it  was

decided  that  all  encroachments  of  forest  land  made  prior  to  1.1.1977  will  be

regularized by framing a policy and those made on or after 1.1.1977 will be removed.

However, before that decision could be implemented, the 1980 Act was enacted by

Parliament and in view of the non obstante clause contained in Section 2 thereof, the

State  Government  could  not  pass  any  order  for  regularizing  unauthorised

occupation/encroachments of forest land.

5. After almost six years of  the enforcement of the 1980 Act,  Agricultural

Production Commissioner and Secretary (Agriculture and Forests), Government of

Kerala, vide his letter No.51289/FGI/83/AD dated 26.6.1986 apprised his counter-part

in the Government of India, i.e., the Secretary, Ministry of Forest and Environment,

Department  of  Forest  and  Wildlife  with  the  human  face  of  the  problem  of

encroachment/unauthorised occupation of forest land and requested that the Central

Government may permit regularization of such occupation/encroachment by issue of

title deeds under the Kerala Land Assignment Rules.  For the sake of reference that

letter is reproduced below:

“GOVERNMENT OF KERALA Forest Environment & Wild Life (C) Department

No. 51289/FGI/83/AD Trivandrum Dated: 26.6.1986

From The Agricultural Production Commissioner & Secretary (Agriculture & Forests)

To, The Secretary to Government of India, Ministry of Forest and Environment, Department of Forest and Wild Life,  Government of India, Krishi Bhavan, New Delhi.

Sir, Sub: Forests-Assignment  of  Forest  Lands  which  have already come under Agricultural occupations-clearance under  

Forest Conservation Act requested.

Several forest areas in Kerala came to be exposed to human occupation particularly since 1956, primarily due to the very  heavy  pressure  of  population  and  secondarily  due  to Governmental programmes like colonization schemes, grow more food  schemes,  arable  land  scheme,  hydro  power  projects, plantations etc.  In the sixties and seventies, the perspective was one of providing land based employment to landless  people.  It was on account of this that some of the above schemes came under implementation.    Forest  lands  were transferred for  non forest purposes.   Pressure  built  up  for  further  expansion  into  forest areas  adjoining  converted  lands.   Government  did  carry  out evictions of unauthorised encroachments from time to time from forest as well as project areas.  Nonetheless, this kind of pressure continued and by the time the Central Forest Conservation law came  into  force  in  1980,  there  still  were  a  large  number  of unauthorised  occupations  in  forest  areas.   In  the  meantime, Government  took  the  decision  to regularize  all  the occupations

that had come into being prior to 1.1.1977.

The  matter  was  taken  up  by  the  Chief  Minister  of Kerala with  the Prime Minister in a letter dated 20th of  March 1984.  He sought the special intervention of the Prime Minister in the  matter  of  regularization  of  pre–1.1.1977  occupations.   The Union Minister for Agriculture, Shri Rao Birendra Singh in his letter number 1598-Minister(Agriculture)/8 dated 23rd of  March 1984 (Copy enclosed) replied to the Chief Minister stating that the Government of India agree in principle that occupations prior to 1.1.1977  may  be  regularized  by  issue  of  title  deeds  under  the Kerala Land Assignment Rules to eligible persons.  However, he wanted full details regarding extent, period of occupation, pattern of  cultivation,  impact of encroachments on conservation aspects etc.

Largely,  the  encroachments  are  in  five  Revenue Districts (14 Forest Divisions).  Detailed joint field verification has been got conducted by teams of Revenue and Forest officials  to determine  the  particulars  of  occupants,  estimated  area  of individual holding, nature of cultivation, age of occupations etc.

To  be  specific,  the  following  are  the  division-wise details of the encroachments:-

(The estimated number of holdings is over 50,000)

Name  of  Forest Division

District Estimated  area  of the occupations   (in hectares)

1. Chalakudy Trichur 380.00 2. Trichur Trichur 2340.00 3. Munnar Ernakulam 185.00 4. Munnar Idukki 180.00 5. Munnar Idukki 6940.65 (Cardamom Hill Reserve)  6.Kothamangalam Ernakulam 160.00 7.Kothamangalam Idukki 2430.00 8. Malayattur Ernakulam 30.00 9. Malayattur Idukki 410.00 10. Kottayam Idukki 1500.00 11. Kottayam Idukki 13443.94 (Cardamom Hill Reserve) 12. Periyar Wild Life Sanctuary

Idukki 480.00

13. Konni Pathanamthitta 60.00 14. Thenmala Quilon 70.00

Total 28588.159

So far as Udumpanchola Taluk (Kottayam Division) is concerned it was re-surveyed during the period from 1974 to 1977.

This  re-survey  was  done  close  to  the  crucial  date  of  1.1.1977. Resurvey records are also very authentic  having been prepared after  following  the  statutory  formalities  under  the  Survey  and Boundaries  Act  including  detailed  field  survey.   So  far occupations in Udumpanchola taluk have not been subjected to further joint field verification referred to above.

The lands proposed to be assigned have actually ceased to  be  forest  lands  years  back.   They  are  forest  lands  only  on record. Townships with colleges, Schools, hospitals, etc. have come up in many of these places.  These lands cannot be restored to their original status of vegetation or ecology and   for that purpose thousands of families occupying these areas cannot be evicted.

So far as the areas other than Udumpanchola taluk are concerned,  extent  of  occupations  has  been assessed only  on the basis of ocular estimation. Permanent demarcation of the line of control through a regular survey will have to be done before the occupants are assigned lands.

In  the  occupied  lands,  there  is  some  residual  tree growth of very sparse distribution.  Such residual tree growth can be salvaged before title deeds are given.

The  Chief  Conservator  of  Forests  has  recommended that for compensatory afforestation revenue land will have to be made  available.   This  recommendation  is  not  feasible  of implementation.  Vacant revenue lands of the extent required for compensatory afforestation are just not available.

We cannot also acquire lands, costs being prohibitive. Acquisition will also involve displacement of the occupants which exactly  Government  are  trying  to  avoid  in  the  unauthorisedly occupied areas.

Proforma statements and maps are submitted herewith Division  wise.   While  proforma  statements  have  been authenticated by forest officials including the Chief Conservator of  Forests,  the  attached  maps  have  not  been  authenticated  by them.  The reasons is that, as already stated, in regard to areas other than Udumpanchola occupations wise survey have not been done.   So  the  maps  have  been  prepared  only  approximately indicating  the  life  of  the  occupations  on  copies  of  the  relevant survey of India sheets.

Government of  India  may be pleased to convey their concurrence under the Forest Conservation Act for the purpose of enabling issue of title deeds to the occupants of these forest areas which already stand converted on ground for agricultural purpose for a number of years now.

Yours faithfully Sd/-

For The Agricultural Production Commissioner

& Secretary (Agriculture & Forests)”

6. On  receipt  of  the  afore-mentioned  letter,  the  Government  of  India,

Ministry of Environment and Forests sent letter dated 2.4.1992 to Secretary, Forest

and  Wildlife  (C)  Department,  Kerala,  requiring  the  latter  to  furnish  information

about the assurance given by the Chief Minister, Kerala on the floor of the legislature

and  also  asked  for  the  details  of  the  encroachment  of  forest  area  sought  to  be

regularized in different districts and the scheme of compensatory afforestation.  The

State  Government  furnished  the  necessary  information.   Thereafter,  the  Central

Government  granted  conditional  approval  for  regularization  of  pre–1.1.1977

encroachments  of  forest  land.   This  was  conveyed  by  the  Ministry  of  Forest  and

Environment, Government of India to the Government of Kerala vide letter No.8-

118/86-FC dated 23.3.1993, the relevant portions of which are extracted below:

“After  careful  consideration  of  the  proposal  of  the  State Government the Central Government hereby agrees in principle for approval  for diversion of  28,588.159 hectares forest land in Idukki,  Pathanamthitta,  Thrissur,  Ernakulam  and  Kollam Districts  for  regularization  of  pre-1.1.1977  encroachments  in Kerala subject to the fulfillment of following conditions,

(i) Ground verification  & demarcation of  area  to  be regularized  in  favour  of  individual  encroachers shall be done by the State Government.

(ii) Regularisation of encroachments shall not be done in  favour  of  encroachers  otherwise  found  eligible either in the midst of the forest area or in Periyar Tiger  Reserve/Wildlife  Sanctuary.   Such encroachers  are to be shifted on the fringe of  the forests, for which excess area available for eligible encroachers may be utilized.

(iii) Detailed map showing demarcation of the area to be regularized  in  favour  of  individual  encroachers shall be got prepared.

(iv) Regularisation  of  encroachments  in  favour  of eligible encroachers shall  not be done in excess of assignment  permissible  as  per  Kerala  Land Assignment Rules, 1988.  The excess area with such encroachers shall be taken back from the possession

of the encroachers and shall be utilized for shifting eligible  encroachers  from the  midst  of  the  forest areas or from Periyar Tiger Reserve area.

(v) A comprehensive scheme for soil conservation and agro forestry shall be prepared and implemented as a time bound programme to check accelerated soil erosion  and  siltation  of  dams  taking  place  in  the area.

(vi) The State Government shall give firm commitment that funds for the compensatory afforestation over double the degraded forest land shall be provided to the  Forest  Dept.  as  per  the  phased  compensatory afforestation  scheme.   The  compensatory afforestation  shall  be  done  within  a  period  not exceeding 5 years.

3. After receipt of compliance report on the fulfillment of the above conditions from the State Government, formal approval will  be  issued  in  this  regard  under  Section-2  of  the  Forest (Conservation) Act, 1980.  Transfer of forest land to user agency should not be effected by the State Government till formal order approving  diversion  of  forest  land  are  issued  by  the  Central Government.”

7. In  the  meanwhile,  the  Government  of  Kerala  in  exercise  of  the  power

vested in it under Section 7 of the Kerala Government Land Assignment Act, 1960

framed the Kerala Land Assignment (Regularization of Occupation of Forest Lands

Prior to 1.1.1977) Special Rules, 1993 (for short, ‘the 1993 Rules’) for regularization

of occupation of forest lands by way of assignment subject to fulfillment of certain

conditions including payment of value of the land at the prescribed rate apart from

land revenue, taxes and rates.  The State Government also gave an assurance to the

Central Government that sufficient funds will be made available for compensatory

afforestation.   After  taking  cognizance  of  the  State  Government’s  response,  the

Central  Government vide its  letter No.8-118/86-FC dated 31.1.1995 accorded final

approval under Section 2 of the 1980 Act for diversion of 28,588.159 hectares forest

land  in  Idukki,  Pathanamthitta,  Thrissur,  Ernakulam  and  Kollam  districts  for

regularization of pre–1.1.1977 unauthorised occupation/encroachments.    

8. The appellant, which is a society formed for protection of environment and

ecology in the State of Kerala, challenged the decision of the government to regularize

unauthorised occupation/encroachment of forest lands by filing writ petition under

Article  226  of  the  Constitution.   It  prayed  for  grant  of  a  declaration  that  the

Government of Kerala is not entitled to dereserve the reserved forest or permit use of

forest  land for any non-forest  purpose  without  obtaining approval  of  the  Central

Government in terms of Section 2(iii) of the 1980 Act.  The appellant further prayed

that  pattayams  (title  deeds)  issued  in  respect  of  forest  land  without  obtaining

approval of the Central  Government should be quashed.  In the affidavit  filed on

behalf of the appellant before the High Court, it was claimed that regularization of

unauthorised  occupation/encroachments  of  forest  land  will  adversely  affect  the

environment and wildlife and ultimately the population of the State.   

9. In the counter affidavit  filed on behalf  of the State Government, it was

averred that due to pressure of population and due to implementation of Colonisation

Scheme, Arable  Land Assignment Scheme,  Grow More Food Programme, Hydro-

Electric Irrigation projects, plantations etc. considerable extent of forest lands in the

State had been exposed to human habitation and such forest lands had been actually

used for non-forest purposes and converted into populated areas with structures and

improvements;  that  in  those  days  people  were  not  conscious  of  the  fact  that  the

maintenance of forest was required for ecological balance and substantial extent of

forest lands had been transformed into agricultural holdings and human settlements

and there is no scope for reverting them into forests; that because of high density of

population any scheme for evicting the occupants of those converted forest lands and

providing  them  with  rehabilitation  facilities  is  unworkable;  that  because  of  the

pressing need for production of more food grains, the Governments had in the past

allowed  cultivation  in  the  forest  lands;  that  the  decision  to  regularize  the

encroachments  made  prior  to  1.1.1977  was  taken  because  it  was  impossible  to

rehabilitate all the occupants if they were evicted; that the Government of India has

already clarified that no sanction under Section 2 of the 1980 Act is necessary for

utilizing  the  forest  lands  de-reserved  for  non-forest  purposes  prior  to  the

promulgation of the Act and that eligibility of persons to whom the holdings are to be

assigned has been decided after a field verification of the entire area by a joint team

of  officials  of  forest  and  revenue  departments.   On  the  issue  of  compensatory

afforestation, the counter affidavit contained the following assertions:

“As a measure to compensate the loss of forest land and with a view to create an awareness among the people about the need to maintain  the  tree  growth,  the  State  Governments  have  been implementing the social  forestry programme and compensatory afforestation  programme for  last  several  years.  In  view  of  the approval of regularisation of diversion of forest lands, the State Government  have  formulated  a  scheme  for  compensatory afforestation  covering  an  area  of  57,180/-  hectare  of  degraded forest  area  which  represents  double  the  area  approved  for regularisation.  Administrative  sanction  has  already  been accorded to  the  said  scheme which  is  estimated to  cost  Rs.113 crores and fund has been earmarked to this project. Till 1994 the Scheme had been implemented in an area of 1233 hectares spread over  the  districts  of  Trivandrum,  Kollam,  Idukki,  Thrissur, Wynad and Kasargode.”

In the counter affidavit the following further averments were made:-

“The policy of the Government is that all post–1977 conversions should be evicted. There was no intention for the Government to regularise the entire conversion up to 25.10.1980. The Assembly passed a unanimous resolution and the cut off date was fixed as 1.1.1977 as  against  1.7.1977.  After  an  extensive  correspondence for several years the Union Government agreed to the diversion of 28,588  hectares  of  forest  land  occupied  prior  to  1.1.1977.  This decision  was  announced  in  a  public  function  organized  in Nadumkandom  in  Idukki  district  on  20.3.1993.  The  State Government's policy decision was taken and declared by the then Chief Minister of the State to regularise the encroachments made prior  to 1.1.1977 and action was  pursued as  per the guidelines issued  by  the  Government  of  India  for  regularisation  of

encroachments.  The  cut  off  date  was  decided  after  careful consideration of the population pressure on forest land and the need for protecting the forest land. Ext.P-19 rules are notified for assignment of the encroached land after obtaining sanction and those  rules  are  valid.  These  rules  are  framed  for  speedy regularisation on getting concurrence from Government of India. No new forest lands are assigned for creation of township. There is no cause for attracting the proceedings under Article 226 of the Constitution. No prejudice is caused to the petitioner and hence the  petitioner  is  not  entitled  to  claim  relief  against  the respondents.”

10. In a separate affidavit filed on behalf of the Central Government, it was

averred  that  approval  was  accorded  to  the  diversion  of  forest  land  measuring

28,588.159  hectares  because  the  State  Government  had  given  assurance  to  make

available funds for compensatory afforestation and compliance of other conditions

specified in letter dated 23.3.1993.  It was further averred that approval was granted

in terms of Section 2 of the 1980 Act in the backdrop of the fact that forest land was

being used for non-forest purposes for many years prior to the enactment of the 1980

Act.   

11. By the  impugned  judgment,  the  Full  Bench  of  the  High  Court  after  a

detailed  discussion  on  the  issues  of  locus  standi of  the  appellant,  constitutional

imperatives, sustainable development and environment protection, held as under:

1. The petitioner has the  locus to invoke jurisdiction of the High Court under Article 226 of the Constitution of India and make a prayer for quashing the decision of the  State  Government  to  regularize  unauthorised occupation / encroachment of forest land.

2. The  1980  Act  is  prospective  in  operation  and  the provisions contained therein are not applicable to the cases in which the forest land has already been used for non-forest purpose prior to 25.10.1980.

3. The  scheme  framed  by  the  State  Government  for compensatory  afforestation  satisfies  the  condition imposed by the Government of India in its letter dated 23.3.1993 and the decision of the State Government to grant  pattas/lease  hold  rights  to  pre–1.1.1977 unauthorised occupants/encroachers of forest land did

not  involve  violation  of  any  constitutional  or  legal provision.

4. The  decision  of  the  Central  Government  to  grant approval  to  the  use  of  forest  land  for  non-forest purpose  is  not violative of Article 48A or 51A of the Constitution.

5. The provisions of the 1993 Rules are legal and valid.  

6. The cut off date, i.e., 1.1.1977 fixed for assignment of forest land is not arbitrary.

7. The unauthorised occupants/encroachers  are liable  to pay compensation for the injury caused to the general public by using forest land for non-forest purposes.

12. Learned counsel for the appellant submitted that his client is not serious in

pressing the challenge to Central Government’s decision to approve the use of forest

land  for  non-forest  purpose,  namely,  assignment  of  forest  land  to  pre–1.1.1977

unauthorized occupants/encroachers because the said decision was taken for solving

the problem being faced by 50,000 families which are settled in forest areas for last

more than five decades, but argued that the declaration made by the Full Bench of the

High  Court  that  the  1980  Act  is  prospective  and  is  not  applicable  to  the  cases

involving use  of  forest  land for non-forest purpose  prior to 25.10.1980 is  ex facie

erroneous and is liable to be set aside, else the same is likely to be misused by the

State Governments for regularizing the encroachments of forest land made prior to

25.10.1980 without seeking prior approval of the Central Government.  He further

argued that the State Government should not be permitted to regularize unauthorised

occupation/encroachment  of  10,000  hectares  of  forest  land  made  after  1.1.1977

without obtaining prior approval of the Central Government and the latter should

not give such approval else the encroachment of forest land will continue.  In the end,

learned counsel argued that a mandamus be issued to the Central  Government to

ensure total compliance of the conditions incorporated in letter dated 23.3.1993.

13. Shri Amarendra Sharan, learned Additional Solicitor General argued that

in view of non obstante clause contained in Section 2 of the 1980 Act, the Government

of  Kerala  could  not  have  assigned  any  part  of  forest  land  or  reserved  forest  to

unauthorised  occupants/encroachers  irrespective  of  the  tenure  of  such

occupation/encroachment  without  obtaining  approval  of  the  Central  Government.

Shri  Sharan  referred  to  the  guidelines  framed  by  the  Central  Government  for

regularization  of  encroachments  on  forest  land  and  submitted  that  the  State

Government had rightly sought approval of the Central Government for assignment

of  land  to  unauthorised  occupants/encroachers  even  though  such

occupation/encroachment had been made many decades prior to 25.10.1980.  Learned

Additional Solicitor General submitted that the view expressed by the Full Bench on

the issue of non applicability of the 1980 Act to pre-25.10.1980 use of forest land for

non-forest  purposes  is  contrary to the law laid down by this  Court and the same

should  be  overruled,  else  the  directions  given  by  this  Court  in  last  30  years  for

protection  of  reserved forests,  forest  lands,  environment  and  ecology  will  become

redundant.

14. Shri T.L.V. Iyer, learned senior counsel appearing for the State of Kerala

submitted that exercise for assignment of forest land has been undertaken strictly in

accordance with the approval  accorded by the Central Government and so far no

action  has  been  initiated  for  regularization  of  occupation/encroachment  of  10,000

hectares of forest land.   Learned senior counsel emphasized that the unauthorised

occupation/encroachments have been regularized keeping in view the history of such

occupation/encroachment and the fact that 50,000 families would have been displaced

if  the  Central  Government  had  decided  against  such  regularization  by  way  of

assignment under the Kerala Land Assignment Act and the 1993 Rules.  

15. Shri L. Nageswara Rao, learned senior counsel appearing for the private

respondents  argued  that  his  clients  are  not  at  all  concerned  with  the  issue  of

retrospective  application  of  1980  Act  because  on  a  reference  made  by  the  State

Government, the Central Government has already approved assignment of land to

pre–1.1.1977  occupants/encroachers.   At  the  same  time,  he  submitted  that  while

considering such an issue the court is duty bound to keep in view the human face of

the problem.  He pointed out that thousands of landless families had occupied the

land declared as reserved forest and used the same for cultivation because they had

no other source of sustenance.   

16. We have given serious thought to the entire matter and scrutinized the

records.  Sections 3, 4, 7 and 22 of the Kerala Forest Act, 1961 (for short ‘the 1961

Act), Sections 2, 3 and 3A of the 1980 Act and the relevant portions of the policy

framed by the Government of India for regularization of encroachments on forest

land, which have bearing on the decision of this appeal, read as under:-

Kerala Forest Act, 1961

3.  Power to reserve forests.–  The Government may constitute any land at the disposal of the Government a Reserved Forest in the manner hereinafter provided.

4.   Notification  by  Government.–   Whenever  it  is  proposed  to constitute  any  land  a  Reserved  Forest,  the  Government  shall publish a notification in the Gazette.–

(a) specifying  as  nearly  as  possible,  the  situation  and limits of such land;

(b) declaring that it is proposed to constitute such land a Reserved Forest; and

(c) appointing an officer (hereinafter called the Forest Settlement  Officer)  to  inquire  into  and  determine the  existence,  nature  and  extent  of  any  rights claimed,  by  or  alleged  to  exist  in  favour  of  any person in or over any land comprised within such limits, or to any forest produce of such land and to deal with the same as provided in this Act.

The  officer  appointed  under  clause  (c)  of  this  section  shall ordinarily be a person other than a Forest Officer; but a Forest Officer may be appointed by the Government to attend, on behalf of the Government at the enquiry prescribed by this Chapter.

7.  Bar of accrual of forest right, prohibition of clearings, etc.– (1) During  the  interval  between  the  publication  of  the  notification under S.4 and the date fixed by the notification under section 19, no right shall  be acquired in or over the land included in such notification under S.4 except under a grant or contract in writing made or entered into by or on behalf of the Government, or by, or on behalf of, some person in whom such right or power to create the  same  was  vested  when  the  notification  under  S.4  was published or by succession from such person; and no clearings shall be made on such land, nor shall any person cut, collect, or remove any forest produce nor shall set fire to such land or kindle or leave burning any fire in such manner as to endanger the same.

(2) No  patta  shall,  without  the  previous  sanction  of  the Government,  be granted in such land,  and every patta granted without such sanction shall be null and void.

(3) Nothing in this section shall be deemed to prohibit any act done with the permission in writing of the Forest Settlement Officer.

22.   No  right  acquired  over  Reserved Forests  except  as  herein provided.–  No right of any description shall  be acquired in or over a Reserved Forest except under a grant or contract in writing made by or on behalf of the Government or by or on behalf  of some person in whom such right or the power to create such right was vested when the notification under section 19 was published or by succession from such person:

Provided that no patta shall, without the previous sanction of the Government, be granted for any land included within a Reserved Forest and every patta granted without such sanction shall be null and void.

Forest (Conservation) Act, 1980 [As amended by Act 69 of 1988]

2.  Restriction on the de-reservation of forests or use of forest land for non-forest purpose.-- 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 the prior approval of the Central Government, any order directing–

(i) that any reserved forest (within the meaning of the expression “reserved forest” in 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 or 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  organisation  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 reafforestation.

Explanation– For the purpose of this section, “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for–

(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;

(b) any purpose other than reafforestation;

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.

3.   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  the Government with regard to–

(i) the grant of approval under Section 2; and (ii) any other matter connected with the conservation of

forests which may be referred to it by the Central Government.

3-A. Penalty for contravention of the provisions of the Act.-- 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.

Regularisation of Encroachments on Forest Land

Encroachment of forest land for cultivation and other purposes continues to be the most pernicious  practice endangering forest resources  throughout  the  country.   Statistical  information compiled by Ministry of Agriculture during early 1980s revealed that nearly 7 lakh hectares of forest land was under encroachment in the country about a decade back.  This is despite the fact that prior  to  1980,  a  number  of  States  had  regularized  such encroachments periodically and approximately 43 lakh hectares of forest land was diverted for various purposes between 1951 and 1980, more than half  of it for agriculture.  The decisions of the State Government to regularize encroachments from time to time

seem  to  have  acted  as  strong  inducement  for  further encroachments  in  forest  areas  and  the  problem  remained  as elusive as ever for want of effective and concerted drive against this evil practice.

2. The National Forest Policy, 1988 has also observed the increasing trend in encroachments on forest land and stated that these  should  not  be  regularized.   Implementation  of  this pronouncement has  been examined by this  Ministry keeping  in view the constraints of various State Governments some of whom have  expressed  that  they  stand  committed  to  regularize encroachments  of  a  period  prior  to  1980.   The  issue  figured prominently  in  the  Conference  of  the  Forest  Ministers  held  in May,  1989  and  was  later  examined  by  an  inter-Ministerial Committee,  set  up  by  this  Ministry  in  consultation  with  the representatives  of  some  of  the  States.   Keeping  in  view  the recommendations  of  the  Forest  Ministers’  Conference  and  the Committee referred to the above, and with due approval of the competent  authority,  the  following  measures  are  suggested  for review of the old encroachments and effective implementation of the  pronouncement  made in  this  regard in  the  National  Forest Policy, 1988.

2.1 All  the  cases  of  subsisting  encroachments  where  the State Governments stand committed to regularize on account of past commitments may be submitted to this Ministry for seeking prior approval under the Forest (Conservation) Act, 1980.  Such proposals should invariably conform to the criteria given below:

1. PRE-1980  ENCROACHMENTS  WHERE THE  STATE  GOVERNMENT  HAD TAKEN  A  DECISION  BEFORE ENACTMENT  OF  THE  FOREST (CONSERVATION)  ACT,  1980,  TO REGULARIZE  ‘ELIGIBLE’  CATEGORY OF ENCROACHMENTS.

1.1 Such  cases  are  those  where  the  State Governments had evolved  certain eligibility criteria in  accordance with  local  needs and conditions  and  had  taken  a  decision  to regularize such encroachments but could not implement  their  decision  either  wholly  or partially before the enactment of the Forest (Conservation) Act, on 25.10.80.

1.2 All  such  cases  should  be  individually reviewed.   For  this  purpose  the  State Government may appoint a joint team of the Revenue,  Forest  and  Tribal  Welfare Departments for this work and complete it as a time-bound programme.

1.3 In  case  where  proposals  are  yet  to  be

formulated, the final picture after taking into considerations  all  the  stipulations  specified here  may  be  placed  before  the  concerned Gaon Sabha with a view to avoid disputes in future.

1.4 All  encroached  lands  proposed  for regularization should be properly surveyed.

1.5 Encroachments  proposed  to  be  regularized must  have  taken  place  before  25.10.1980. This  must  be  ascertained  from  the  First Offence  Report  issued  under  the  relevant Forest Act at that point of time.

1.6 Encroachments must subsist on the field and the  encroached  land  must  be  under continuous possession of the encroachers.

1.7 The encroacher must be eligible to avail the benefits  of  regularization  as  per  the eligibility criteria already fixed by the State.

1.8 As  far  as  possible  scattered  encroachments proposed  to  be  regularized  should  be consolidated/relocated  near  the  outer boundaries of the forests.

1.9 The  outer  boundaries  of  the  areas  to  be denotified  for  regularization  of encroachments should be demarcated on the ground with permanent boundary marks.

1.10 All  the  cases  proposed  to  be  regularized under this category should be covered in one proposal  and  it  should  give  district-wise details.

1.11 All  cases  of  proposed  regularization  of encroachments should be accompanied by a proposal  for  compensatory  afforestation  as per existing guidelines.

1.12 No agricultural practices should be allowed on certain specified slopes.

x x x x x

CLARIFICATION

x x x x x

2. Doubts  have  been  raised  as  to  whether  all encroachments  that  had taken  place  up  to  25.10.1980 could  be regularized  in  accordance  with  an eligibility  formula  by  which some earlier encroachments were regularized.

3. A  perusal  of  the  paragraph  reproduced  above  will make  it  clear  that  there  are  2  pre-conditions  for  any encroachments to be considered for regularization.  These are:-

(a) The State Government should have taken the decision on regularization of encroachments before 25.10.1980; and

(b) that  the  decision  should  be  with  reference  to  some eligibility criteria (normally expected to be related to social and economic  status  of  encroachers,  location  and  extent  or encroachment, cut off date of encroachment, etc.,)

4. It  would  be  seen  that  the  encroachments  which  are proposed  to  be  considered  for  regularization,  subject  to  the prescribed  conditions,  are  those  which  fulfilled  the  eligibility criteria evolved by the State Government as per decision taken before  25.10.1980  for  regularization  of  encroachments.   The objective  is  limited  to  permitting  implementation  of  decisions taken before 25.10.1980 which could not be implemented because the enactment of Forest (Conservation) Act, 1980 intervened.  It is therefore  quite  clear  that  while  all  encroachments  that  can  be considered as eligible for regularization would have taken place before 25.10.1980, all encroachments that had taken place before 25.10.1980 would not be eligible for regularization – they may be ineligible because either they do not meet the eligibility criteria or are not covered by any decision taken before 25.10.1980.  Thus, if the decision on regularization of encroachments in a State covered only  encroachments  up  to  a  date  earlier  than  25.10.1980,  the guidelines  on  regularization  of  encroachments  do  not  envisage that  the  State  Government  would  now  survey  encroachments between  that  date  and  25.10.1980  and  propose  regularization. The latter encroachments though occurring before 25.10.1980 are not covered by any regularization decision taken prior to that date and  hence  cannot  be  considered  for  regularization  at  this juncture.

5. Accordingly,  the  State  Government  may take  up  for implementation only such decision of pre 25.10.1980 period which could not be implemented because of Forest (Conservation) Act, 1980 intervening and propose regularization of encroachments as per those decisions and in accordance with the eligibility criteria laid down in those decisions.  No encroachments not covered by any  pre  25.10.1980  decisions  –  even  though  they  might  have occurred  prior  to  that  date  –  should  now  be  considered  for regularization in terms of our guidelines.

17. An analysis of the above reproduced provisions of the 1961 Act makes it

clear that once a land was declared reserved forest, no right could be acquired by

anyone after issue of notification under Section 4 except under a grant or contract in

writing made or entered into by or on behalf of the Government, or by or on behalf of

some person  in  whom such  right  or  power  to  create  the  same was  vested  or  by

succession from such person and no activity of clearing such land or collection of

forest produce could be made.  Sub-section 2 of Section 4 of the 1961 Act also imposes

prohibition  against  grant  of  patta  in  such  land  without  previous  sanction  of  the

Government.  The 1980 Act was enacted by virtue of Entry 17-A of List III in the

Seventh Schedule of the Constitution.  Section 2 (as originally enacted) contains a non

obstante clause.  It lays down that notwithstanding anything contained in any other

law for the time being in force in a State, no State Government or authority shall

without prior approval of the Central Government make any order directing that any

reserved forest or any portion thereof, shall cease to be reserved or that any forest

land or any portion thereof may be used for any non-forest purpose.  By Act 69 of

1988 clause (iii) was inserted in Section 2 and what was implicit in clause (ii) was

made explicit.  Explanation appearing below Section 2 was also amended and it was

made clear that the phrase ‘non-forest purpose’ will mean breaking up or clearing of

any forest land or portion thereof for cultivation of tea, coffee, spices, etc. and any

purpose other than reafforestation.  However, activity or work relating or ancillary to

conservation, development and management of forest and wildlife was excluded from

the ambit of the phrase ‘non-forest purpose’.

18. We shall now consider whether Section 2 of the 1980 Act is prospective in

operation and the State Government etc. are not required to obtain prior approval of

the Central Government before regularizing use of any forest land for any non-forest

purpose or issue patta or grant lease to unauthorised occupants/encroachers of forest

land, or the provision contained in Section 2 is applicable qua any action which the

State Government or other authority may take with reference to activity undertaken

in any reserved forest or any forest land prior to 25.10.1980.   

Undisputedly,  the object  of  the 1980 Act  is  conservation of  forest  and  to prevent

depletion thereof.  Therefore, the Court is bound to interpret the provisions of that

Act which would further the object of the legislation.  After enforcement of the 1980

Act, the State Governments were denuded of  suo moto power to deal with reserved

forest or forest land and permit use thereof for non-forest purposes.  They could do so

only after obtaining prior approval of the Central Government.  However, as large

tracts of reserved forests and forest land had been occupied by landless poor, who

also undertook cultivation for their sustenance many decades before the enactment of

the 1980 Act, and there was demand from several quarters that old occupation of the

forest land may be regularised, the Government of  India,  after taking note of the

recommendations made in the Forest Ministers Conference and committee appointed

by  it,  issued  guidelines  for  grant  of  approval  to  the  decision  taken  by  the  State

Governments before the enforcement of the 1980 Act, i.e.,  25.10.1980 to regularize

encroachments made on forest land and/or use thereof for non-forest purpose.  This

necessarily  implies  that  where  the  State  Government  had  not  taken  any  policy

decision  to  regularize  pre-25.10.1980  occupation/encroachment  of  forest  land  no

order  for  regularization  of  such  occupation/encroachment  can  be  passed  without

obtaining prior approval of the Central Government in terms of Section 2 of the 1980

Act which, as mentioned above, contains a non obstante clause.

19.  The  question  whether  prior  approval  of  the  Central  Government  is

required for use of any forest  land or any portion thereof  for non-forest  purpose

came up for consideration in State of Bihar v. Banshi Ram Modi and others [(1985) 3

SCC 643].  The facts of that case were that 80 acres of land which formed part of

reserved forest was allotted to the respondents for undertaking mining operations

much before enactment of the 1980 Act.  After enforcement of the 1980 Act, the State

Government  renewed  the  mining  lease  without  obtaining  prior  approval  of  the

Central Government.  Divisional Forest Officer, Kodarma Forest Division restrained

the  respondents  from  continuing  the  mining  activity  on  the  ground  that  prior

approval  of  the  Central  Government  had  not  been  obtained.   The  respondents

challenged the  said  restriction  by  filing  writ  petition  in  the  High  Court  of  Patna

(Ranchi Bench).  The High Court ruled that Section 2(ii)  of  the 1980 Act was not

attracted  in  the  respondents  case  because  the  area  had  already  been  broken  for

mining activity.  This Court approved the decision of the High Court and held:

“Reading clause (ii) of and Explanation to Section 2 of the Act it is clear that after the commencement of the Act no fresh breaking up of the forest land or no fresh clearing of the forest on any such land can be permitted by any State Government or any authority without  the prior approval  of  the Central  Government.   But  if such permission has been accorded before the coming into force of the  Act  and  the  forest  land  is  broken  up  or  cleared  then  the section cannot apply.

In the present case the State Government had not violated Section 2 in permitting the lessee by the amendment of the lease deed to win  and  remove  felspar  and  quartz  also  in  addition  to  mica because  thereby  no  permission  for  fresh  breaking  up  of  forest land is being given.  The result of taking the contrary view will be that while the digging for purposes of winning mica can go on, the lessee would be deprived of collecting felspar or quartz which he may come across while  he is  carrying on mining operations for winning mica.”

20. The above judgment was considered in Ambica Quarry Works v. State of

Gujarat and others [(1987) 1 SCC 213].  That was a case of renewal of lease for the

minor mineral granted in Village Morai of District Valsad, State of Gujarat.  The

lease was granted on 8.11.1971 for a period of 10 years.  Just before the expiry of the

term of  lease,  the appellant  applied for its  renewal  under Rule  18 of  the Gujarat

Minor  Mineral  Rules,  1966.   The  concerned  Assistant  Collector  rejected  the

application on the ground that the land is a part of the reserved forest and in terms of

the 1980 Act renewal cannot be granted without approval of the Central Government.

The appellant challenged the action of the Assistant Collector by filing writ petition in

the High Court of Gujarat, which was dismissed.  Before this Court, learned counsel

for the appellant relied upon the judgment in Banshi Ram Modi’s case and argued

that the prior approval of the Central Government was not necessary because it was a

case of renewal of the existing quarry lease.  After extracting relevant portion of the

judgment in Banshi  Ram Modi’s case,  this  Court explained and distinguished the

same by making the following observations:-

“………It is true that this Court held that if the permission had been granted before the coming into operation of the 1980 Act and the  forest  land  has  been  broken  up  or  cleared,  clause  (ii)  of Section 2 of 1980 Act would not apply in such a case. But that decision was rendered in the background of the facts of that case. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is  only an authority for what it  actually  decides,  and not what logically  follows  from  it.  (See Lord  Halsbury  in  Quinn v. Leathem). But in view of the mandate of Article 141 that the ratio of the decision of this Court is a law of the land, Shri Gobind Das submitted that  the  ratio  of  a  decision  must  be  found out  from finding  out  if  the  converse  was  not  correct.  But  this  Court, however,  was  cautious  in  expressing  the  reasons  for  the  said decision  in  State  of  Bihar v.  Banshi  Ram  Modi. This  Court observed in that decision that the result  of taking the contrary view would be (SCC p. 648, para 10) that while the digging for purposes of winning mica can go on, the lessee would be deprived of collecting felspar or quartz which he may come across while he is carrying on mining operations for winning mica. That would lead  to  an  unreasonable  result  which  would  not  in  any  way subserve the object of the Act. There was an existing lease where mining  operation  was  being  carried  on  and  what  was  due  by incorporation  of  a  new term was  that  while  mining  operations were being carried on some other minerals were available, he was giving  right  to  collect  those.  The  new  lease  only  permitted utilisation or collection of the said other minerals. In  the  instant  appeals  the  situation  is  entirely  different.  The appellants are asking for a renewal of the quarry leases. It will lead to further deforestation or at least it will not help reclaiming back the areas where deforestations have taken place. In that view of the matter, in the facts and circumstances of the case, in our opinion, the ratio of the said decision cannot be made applicable to  support  the  appellants’  demands  in  these  cases  because  the

facts are entirely different here. The primary purpose of the Act which must subserve the interpretation in order to implement the Act is to prevent further deforestation. The Central Government has  not  granted  approval.  If  the  State  Government  is  of  the opinion that it is not a case where the State Government should seek approval of the Central Government, the State Government cannot apparently seek such approval in a matter in respect of which,  in  our  opinion,  it  has  come  to  the  conclusion  that  no renewal should be granted.”

21. In Tarun Bharat Sangh, Alwar v. Union of India and others [1993 Supp

(3) SCC 115], this Court held that once an area is declared as protected forest, it

becomes forest within the meaning of Section 2 of the 1980 Act and prior approval of

the  Central  Government  is  a  condition  precedent  for  grant  of  lease  under  the

Rajasthan  Minor  Mineral  Concession Rules,  1986.   The  ratio  of  the  judgment  is

contained in para 18, which is extracted below:-

“Once an area is declared as a protected forest, it comes within the purview  of  the  Forest  (Conservation)  Act,  1980.  It  becomes  a forest  land  within  the  meaning of  Section  2.  The  effect  of  this position is that no non-forest activity can be carried on in the said area except with the prior approval of the Central Government. Even the State Government cannot carry on any such non-forest activity in  the said area without  such prior approval.  That  the mining activity amounts to non-forest purpose is beyond dispute. Thus, the grant of mining leases/licences and their renewal by the State Government,  without  obtaining  the prior  approval  of  the Central Government, in respect of the mines situated within the protected forest, after January 1, 1975 is contrary to law. All the mines  listed  in  Appendix  ‘A’  to  the  committee’s  report  do  fall within the areas declared as protected forest while the mines listed in Appendix ‘B’ fall partly within and partly outside such areas. According  to  Rule  4(6)  of  the  Rajasthan  Minor  Mineral Concession  Rules,  1986  too,  no  mining  lease  could  have  been granted or renewed within the forest “without clearance from the Central Government in accordance with the Forest (Conservation) Act, 1980 and the rules made thereunder”. Admittedly, no such prior approval or clearance of Central Government was obtained. The  Chairman  of  the  committee,  Shri  Justice  M.L.  Jain  has recommended that 215 mines mentioned in Appendix ‘A’ to his report,  which  are  situated  wholly  within  the  protected  forest should  be  closed  forthwith.  There  can  hardly  be  any  valid objection  in  law  to  the  said  recommendation.  Similarly,  with respect to 47 mines mentioned in Appendix ‘B’ to the report, the learned Chairman has recommended that they should be closed forthwith insofar as they fall within the protected forest. To this recommendation also, there can be no valid objection in law.”

22. In State of A.P. and others v. Anupama Minerals and others [1995 Supp

(2) SCC 117], the Court referred to the earlier judgment in Ambica Quarry Works v.

State of Gujarat and others (supra) and held:

“The purpose of the Act is conservation of forests and to prevent the depletion of forests. In other words the Act intended not only to protect the existing forests but also to conserve and protect the existing forests in accordance with the provisions of the Act. In view of the prohibition for grant of lease in the reserved forest area, grant of renewal in the face of the prohibited area will be in violation of law. Therefore, the authorities though had the power, but  had  duty  while  conserving  the  forest  to  refuse  to  grant renewal. In that view the Government’s refusal to grant renewal, therefore,  cannot  be  said  to  be  illegal.  If  they  consider  that renewal  could  be  granted,  even then the  prior  approval  of  the Central Government is mandatory under Section 2 of the Act.”

23. In T.N. Godavarman Thirumulkpad v. Union of India and others [(1997) 2

SCC 267], this Court adverted to the misconception entertained in certain quarters

about  the true scope of  the 1980 Act  and the meaning of  the word “forest” used

therein and held:

“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,  Rural Litigation and Entitlement Kendra v.  State of U.P. and  recently  in  the  order  dated  29-11-1996  (Supreme  Court Monitoring  Committee v.  Mussoorie  Dehradun  Development

Authority). The earlier decision of this Court in  State of Bihar v. Banshi Ram Modi 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.”

24. 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., 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.   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.

25. We may now revert to the facts of the case in hand. It is not in dispute that

before the enactment of the 1980 Act, the Government of Kerala had taken a policy

decision  to  regularize  the  illegal/unauthorised  occupation  and  encroachments  of

forest  land  made  prior  to  1.1.1977  and  also  to  remove  all  unauthorised

occupation/encroachments made on and after 1.1.1977.  For implementation of that

decision, the State Government approached and succeeded in persuading the Central

Government to grant approval for diversion of 28,588.159 hectares of land by way of

assignment to the unauthorized occupants/encroachers.  The approval granted by the

Central  Government  was  in  consonance  with  the  guidelines  framed  by  it  for

regularization of encroachments on forest land.  Therefore, we do not find any valid

reason to interfere with the High Court’s refusal to nullify the action taken by the

State  Government  to  regularize  the  unauthorised  occupation/encroachment  of

28588.159 hectares of forest land in five districts.

26. As regards 10,000 hectares of forest land, the State Government has not

taken any decision  for  assignment  thereof  to  unauthorised occupants/encroachers.

This  has  been made clear in the  additional  affidavit  dated 13.1.2009 of  Shri  B.R.

Mohan Kumar (Law Officer to Government of Kerala), paragraph 7 whereof reads

as under:

“It is submitted that the State Government has initiated steps to move Government of India with suitable proposal for obtaining clearance under Forest (Conservation) Act, 1980 for assignment of about  10,000/-  ha.  of  forest  land  to  the  occupants  prior  to 01.01.1977.   Alternate  non-forest  lands  are  being  identified  for compensatory  afforestation  in  various  districts.   For regularization  of  these  forest  lands  encroached  prior  to 01.01.1977, prior approval of the Govt. of India is necessary.  The respondent will submit an additional proposal to Government of India for grant of approval for diversion of forest  land, as and when joint verification is completed.  It may be pointed out that instructions have been issued in unequivocal terms to take stern action to evict the encroachments after 01.01.1977.”

In view of the stand taken by the State Government, the grievance made by

the appellant in that regard will have to be treated as pre-mature.  However, we deem

it necessary to clarify that as and when the State Government takes a decision to

assign 10,000 hectares of forest land or permit use thereof for any non-forest purpose

and approaches the Central Government for grant of approval in terms of Section 2

(ii) and (iii), the latter shall be duty bound to examine the proposal keeping in view

the object of the 1980 Act and the guidelines framed in the light of the National Forest

Policy and then take appropriate decision.  Needless to say that the appellant or any

other person who may feel  aggrieved by  the decision of  the State  Government to

assign 10,000 hectares of forest land or any portion thereof or permit use of forest

land for any non-forest purpose shall be free to avail appropriate legal remedy.   

27. 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  hectares  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 No.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 hectares of

forest land to unauthorised 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.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

......................J.       [AFTAB ALAM]

New Delhi, March 30, 2009.