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PETITIONER: T.N. GODAVARMAN THIRUMULKPAD

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       12/12/1996

BENCH: J.S. VERMA, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                (With W.P.(Civil) No. 171/96)                          O R D E R      In  view  of  the  great  significance  of  the  points involved in  these matters,  relating to  the protection and conservation of  the forests  throughout the country, it was considered necessary  that the Central Government as well as the Governments  of all  the States  are heard. Accordingly, notice w as issued to all of them. We have heard the learned Attorney General  for the  Union of  India, learned  counsel appearing for  the States and the parties/applicants and, in addition,  the  learned  Amicus  Curiae,  Shri  H.N.  Salve, assisted by  Sarvashri U.  U. Lalit,  Mahender Das  and P.K. Manohar. After  hearing all  the learned  counsel, who  have rendered very  able assistance  to the court, we have formed the opinion  that the  matters  require  a  further  indepth hearing to  examine all the aspects relating to the National Forest  Policy.  For  this  purpose,  several  points  which emerged during  the course  of the  hearing require  further study by  the learned  counsel and,  therefore, we defer the continuation of  this hearing  for some  time to  enable the learned counsel to further study these points.      However, we  are of  the opinion  that certain  interim directions are  necessary at  this stage  in respect of some aspects. We  have heard the learned Attorney General and the other learned counsel on these aspects.      It  has  emerged  at  the  hearing,  that  there  is  a misconception in  certain quarters  about the  true scope of the Forest  Conservation Act, 1980 (for short the ‘Act’) and the meaning of the word "forest" used therein. There is also a resulting  misconception about  the need of prior approval of the  Central Government,  as required by Section 2 of the Act, in  respect of  certain activities  in the  forest area which are more often of a commercial nature. It is necessary to clarify that position.      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 fore  matters connected therewith,  must apply to all forests irrespective of the  nature of  ownership or  classification thereof. The

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word "forest: must be understood according to its dictionary meaning. This  description cover  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 and ors.  versus State  of Gujarat  and ors.  (1987 (1)  SCC 213), Rura’  Litigation and  Entitlement Kendra versus State of U.P. (1989 Suppl. (1) SCC 504), and recently in the order dated 29th  November, 1996  in  W.P.(C)  No.749/95  (Supreme Court Monitoring Committee vs. Mussorie Dehradun Development Authority and  ors.). The  earlier decision of this Court in State of  Bihar Vs.  BanshiRam Modi  and ors.  (1985 (3) SCC 643) has,  therefore, to be understood in the light of these subsequent decisions.  We consider it necessary to reiterate this settled  position emerging  from the  decisions of this court to  dispel the doubt, if any, in the perception of any State Government  or authority.  This has  become  necessary also because  of the  stand taken  on behalf of the State of Rajasthan, even  at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this court. It is reasonable to assume that any State  Government which  has failed  to  appreciate  the correct position  in law  so far, will forthwith correct its stance and  take the necessary remedial measures without any further delay. We further direct as under:- I.   General: 1.   In view of the meaning of the word "forest" in the Act, it is  obvious that prior approval of the Central Government is required  for any  non-forest activity within the area of any "forest".  In accordance  with Section 2 of the Act, all on-going activity  within any forest in any State throughout the country,  without the  prior  approval  of  the  Central Government, must  cease forthwith.  It is,  therefore, clear that the  running of  saw mills of any kind including veneer or ply-wood  mills, and mining of any mineral are non-forest purposes and  are, therefore,  not permissible without prior approval of  the Central  Government. Accordingly,  any such activity is  prima facie  violation of the provisions of the Forest Conservation  Act, 1980.  Every State Government must promptly ensure  total  cessation  of  all  such  activities forthwith. 2.   In addition  to the  above, in  the tropical  wet ever- green forests  of  Tirap  and  Changlang  in  the  State  of Arunachal Pradesh,  there would be a complete ban on felling of any  kind of  trees therein  because of  their particular significance  to   maintain  ecological  balance  needed  to preserve bio-diversity. All saw mills, veneer mills and ply- wood mills  in Tirap  and Changlang in Arunachal Pradesh and within a  distance of  100 Kms.  from its  border, in Assam, should also  be closed immediately. The State Governments of Arunachal Pradesh  and Assam  must ensure compliance of this direction. 3.   The felling  of trees  in  all  forests  is  to  remain suspended except in accordance with the Working Plans of the

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State Governments, as approved by the Central Government. In the absence  of any  Working Plan  in any  particular State, such as  Arunachal Pradesh,  where the permit system exists, the felling under the permits can be done only by the Forest Department of  the State  Government  or  the  State  Forest Corporation. 4.   There shall  be a  complete ban  on the movement of cut trees and  timber from any of the seven North-Eastern States to any  other State  of the  country either by rail, road or water-ways. The  Indian Railways  and the  State Governments are directed to take all measures necessary to ensure strict compliance of this direction. This ban will not apply to the movement of  certified timber  required for defence or other Government purpose. This ban will also not affect felling in any private  plantation comprising  of trees  planted in any are which is not a forest. 5.   Each State  Government  should  constitute  within  one month an Expert Committee to:      (i)  Identify   areas   which   are      "forests", irrespective  of whether      they are so notified, recognised or      classified  under   any  law,   and      irrespective of  the  ownership  of      the land of such forest;      (ii) identify  areas   which   were      earlier forests but stand degraded,      denuded or cleared; and      (iii)     identify areas covered by      plantation trees  belonging to  the      Government and  those belonging  to      private persons. 6.   Each State  Government should within two months, file a report regarding:-      (i)  the  number   of  saw   mills,      veneer and  plywood mills  actually      operating within  the  State,  with      particulars    of     their    real      ownership;      (ii) the   licensed    and   actual      capacity of  these mills  for stock      and sawing;      (iii)     their  proximity  to  the      nearest forest;      (iv) their source of timber. 7.   Each State  Government  should  constitute  within  one month, an Expert Committee to assess :      (i)  the  sustainable  capacity  of      the forests  of the  State qua  saw      mills and timber based industry;      (ii) the  number  of  existing  saw      mills which can safely be sustained      in the State;      (iii)     the optimum distance from      the  forest,  qua  that  State,  at      which  the   saw  mill   should  be      located. 8.   The  Expert   Committees  so   constituted  should   be requested to  give its  report within  one  month  of  being constituted. 9.   Each State  Government  would  constitute  a  Committee comprising of the Principal Chief Conservator of Forests and another Senior  Officer to  oversee the  compliance of  this order and file status reports. II.  FOR THE STATE OF JAMMU & KASHMIR: 1.   There will  be no  felling of  trees permitted  in  any

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"forest", public  or  private.  This  ban  will  not  affect felling in  any  private  plantations  comprising  of  trees planted by private persons or the Social Forestry Department of the  State of  Jammu &  Kashmir and  in such plantations, felling will be strictly in accordance with law. 2.   In  ‘forests’,   the  State   Government   may   either departmentally  or  through  the  State  Forest  Corporation remove fallen  trees or  fell and  remove  diseased  or  dry standing timber,  and that  only from areas other than those notified under the Jammu & Kashmir Wild Life Protection Act, 1978 or  any other  law banning  such felling  or removal of trees. 3.   For this  purpose, the State Government will constitute an Expert  Committee comprising of a representative being an IFS Officer  posted in  the State  of  Jammu  &  Kashmir,  a representative of  the State  Government,  and  two  private experts of  eminence and  the Managing Director of the State Forest Corporation  (as Member  Secretary) who  will fix the qualitative and quantitative norms for the felling of fallen trees, diseased  and dry  standing trees.  The  State  shall ensure that  the trees  so felled  and  removed  by  it  are strictly in accordance with these norms. 4.   Any felling  of trees  in forest  or otherwise  or  any clearance of  land for  execution of  projects, shall  be in strict  compliance   with  the   Jammu  &   Kashmir   Forest Conservation Act,  1990 and any other laws applying thereto. However, any trees so felled, and the disposal of such trees shall be  done exclusively  by the  State Forest Corporation and no  private agency  will be  permitted to deal with this aspect. This  direction will  also cover the submerged areas of the THEIN Dam. 5.   All timber  obtained, as  aforesaid or otherwise, shall be utilised  within the State, preferably to meet the timber and  fuel   wood  requirements  of  the  local  people,  the Government and other local institutions. 6.   The movement  of trees  or timber  (sawn or  otherwise) from the  State shall,  for the  present,  stand  suspended, except for  the use  of DGS  & D,  Railways and Defence. Any such movement for such use will -      a)   be    effected    after    due      certification,     consignment-wise      made by  the Managing  Director  of      the State  Corporation  which  will      include  certification   that   the      timber has  come from  State Forest      Corporation sources; and      b)  be  undertaken  by  either  the      Corporation  itself,  the  Jammu  &      Kashmir Forest  Department  or  the      receiving agency. 7.   The State  of Jammu  & Kashmir  will  file,  preferably within one month from today, a detailed affidavit specifying the quantity  of timber  held by  private persons  purchased from State  Forest Corporation  Depots for transport outside the State  (other than  for consumption  by  the  DGS  &  D, Railways and Defence). Further directions in this regard may be considered after the affidavit is filed. 8.   No saw  mill, veneer or plywood mill would be permitted to operate  in this  State at a distance of less than 8 Kms. from the  boundary  of  any  demarcated  forest  areas.  Any existing mill  falling in  this  belt  should  be  relocated forthwith. III. FOR THE  STATE OF HIMACHAL PRADESH AND THE HILL REGIONS OF THE STATES OF UTTAR PRADESH AND WEST BENGAL: 1.   There will  be no  felling of  trees permitted  in  any

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forest, public  or private. This ban will not affect felling in any private plantation comprising of trees planted in any area which  is not  a  ‘forest’;  and  which  has  not  been converted from  an earlier "forest". This ban will not apply to permits  granted to  the right holders for their bonafide personal use in Himachal Pradesh. 2.  In   a  ‘forest’,   the  State   Government  may  either departmentally  or  through  the  State  Forest  Corporation remove fallen  trees or  fell and  remove  diseased  or  dry standing timber  from areas  other than those notified under Section 18  or Section  35 of  the Wild Life Protection Act, 1972 or  any other  Act banning  such felling  or removal of trees. 3.   For this purpose, the State Government is to constitute an expert Committee comprising a representative from MOEF, a representative of  the State Government, two private experts of eminence  and the  MD of the State Forest Corporation (as Member  Secretary),   who  will   fix  the  qualitative  and quantitative norms  for the  felling  of  fallen  trees  and diseased and  standing timber.  The State  shall ensure that the trees so felled and removed are in accordance with these norms. 4.   Felling of  trees in  any forest  or any  clearance  of forest land  in execution  of projects  shall be  in  strict conformity with  the Forest  Conservation Act,  1980 and any other laws  applying thereto. Moreover, any trees so felled, and the  disposal of such trees shall be done exclusively by the State  Forest Corporation and no private agency is to be involved in any aspect thereof. IV.  FOR THE STATE OF TAMIL NADU: 1.   There will be a complete ban on felling of trees in all forest areas’. This will however not apply to:-      (a) trees  which have  been planted      and   grown,   and   are   not   of      spontaneous growth, and      (b) are  in areas  which  were  not      forests earlier,  but were  cleared      for any reason. 2.   The State  Government, within four weeks from today, is to constitute a committee for identifying all "forests". 3.   Those tribals  who are  part  of  the  social  forestry programme in respect of patta lands, other than forests, may continue to  grow and cut according to the Government Scheme provided that they grow and cut trees in accordance with the law applicable. 4.   In so  f ar  as the  plantations (tea, coffee, cardamom etc.) are concerned, it is directed as under:      a)   The felling  of shade  trees in  these plantations           will be -      i) limited to trees which have been      planted, and  not those  which have      grown spontaneously;      ii)   limited    to   the   species      identified in the TANTEA report;      iii)   in   accordance   with   the      recommendations  of  (including  to      the extent  recommended by) TANTEA;      and      iv) under  the supervision  of  the      statutory committee  constituted by      the State Government. b)   In so  far as the fuel trees planted by the plantations for fuel  wood outside  the forest  area are  concerned, the State Government  is directed to obtain within four weeks, a report from  TANTEA as  was done in the case of Shade trees,

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and the  further action for felling them will be as per that report. Meanwhile,  eucalyptus and wattle trees in such area may be  felled by them for their own use as permitted by the statutory committee. c)  the  State  Government  is  directed  to  ascertain  and identify those  areas of the plantation which are a "forest" and are not in active use as a plantation. No felling of any trees is  however to  be permitted  in these areas, and sub- paras (b) and (c) above will not apply to such areas. d)   There will  be no  further expansion of the plantations in a  manner so  as to  involve encroachment upon (by way of clearing or otherwise) of "forests". 5.   As far  as the  trees already cut, prior to the interim order of  this court  dated December 11, 1995 are concerned, the same  may be  permitted to be removed provided they were not so  felled from  Janmam land. The State Government would verify these  trees and  mark them  suitably to  ensure that this order  is duly  complied with. For the present, this is being permitted as a one time measure. 6.   Insofar as  felling of  any trees  in Janmam  lands  is concerned (whether in plantations ore otherwise), the ban on felling will  operate subject to any order made in the Civil Appeal Nos. 367 to 375 of 1977 in C.A. Nos. 1344-45 of 1976. After the  order is made in those Civil Appeals on the I.As. pending therein,  if  necessary,  this  aspect  may  be  re- examined. 7.  This   order  is  to  operate  and  to  be  implemented, notwithstanding any  order at variance, made or which may be made by  any Government or any authority, tribunal or court, including the High Court.      The earlier orders made in these matters shall be read, modified wherever necessary to this extent. This order is to continue, until  further orders. This order will operate and be complied with by all concerned, notwithstanding any order at variance,  made or  which my  be made  hereafter, by  any authority, including  the Central or any State Government or any court (including High Court) or Tribunal.      We also  direct that notwithstanding the closure of any saw mills  or other  wood-based industry  pursuant  to  this order, the  workers employed  in such units will continue to be  paid   their  full  emoluments  due  and  shall  not  be retrenched or removed from service for this reason.      We are  informed that the Railway authorities are still using wooden  sleepers for  laying tracks.  The Ministry  of Railways will  file an  affidavit giving full particulars in this regard  including the  extent of wood consumed by them, the source of supply of wood, and the steps taken by them to find alternatives to the use of wood.      I.A. Nos.  7,9,10,11,12,13  and  14  in  Writ  Petition (Civil) No.  202 of 1995 and I.A. Nos. 1,3,4,5,6,7,8 & 10 in Writ Petition  (Civil) No.  171 of  1996  are  disposed  of, accordingly.      List the  matter on February 25, 1997 as part-heard for further hearing.