Preservation of forests - legislative and judicial response

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Paper presented by Sri M.V. Shankar Bhat, B.A.B.L., Advocate, Mangalore. [Workshop on” An Appraisal of forests and wildlife laws”, held on 14^th June 2003, at Shri Di Dharmasthala Manjunatheshwara Law College, Mangalore, under the auspices of National Law School of India University] Prologue

1       Preserving forests is part and parcel of environmental protection, which is the need of the present day industrialized world. The legislative and judicial response in this field needs examination to find out the effectiveness of its roles. Such examination will enable to find out where the fault lies and to suggest remedies.

2.      Safeguarding the forests and wild life of the country is
the duty entrusted to the State as per Article 48A of the Directive Principles of the State Policy in the Constitution of India.

3.      It is the fundamental duty of every citizen of India to
protect and improve the natural environment including forests, lakes, rivers and wild life as envisaged by Article 51 A of the Constitution.

Forest - its importance

4.       Forest is the natural wealth. No one can deny its need to be preserved. Destroying forest is easy; but growing it takes decades. Preserving forests is therefore of utmost importance. Environmental law covers preservation of forests as its important wing.

5.       A forest is, according to dictionary meaning, a large area covered chiefly with trees and undergrowth.

6.       None of the legislative enactments define what a forest is, though the concept of reserved forest, village forest etc are found defined.

7.       Some 370 million years ago the first amphibians and the
first forests appeared on the earth. Encyclopedic information reveals that at one time bands of forests stretched around the world. But with the spread of humana, the picture changed. Tropical forests are most under threat of destruction. More than half the world's tropical forests have been destroyed in the last 50 years starting from about 1945. The rate of forest loss in Asia is estimated at 1.2 per annum during 1981-90, as estimated by the FAO, This destruction has led to a huge increase in the amount of carbon dioxide in the atmosphere, while the soil is degraded and eroded.[1]

8.       With increased agricultural and commercial activity, there is increasing demand for trees. This leads to systematic destruction of forest. Wood based industry demands greater supply of trees, leading to destruction of forest.

Mining, and innumerable other causes result in destruction of forest. Natural calamity like forest-fire also leads to its destruction. While such destruction takes toll of forest at rapid pace, the re-afforestation does not keep pace with it. This has lead to the imbalance in the ecology. It is unfortunately continuing. This should be the concern of all of us. The legislative and judicial response in this regard is being examined in this paper.

Historical perspective

9.       With colonization of India, came western culture and commercial activities. Industrialisation began to spread. It is widely accepted that with the advent of British rule the process of deforestation of this country began. Meeting the industrial needs of their home country being the primary aim of the colonizers, the natural resources of this country, including the forest, came to be denuded. Indian Forest Act of 1878 was the legislation, which attempted to control forests by formation of reserved forests. In 1894 the British

Government in India reviewed its forest policy. Amongst others it laid down. that the forests, which are the reservoirs of valuable timbers should be managed on commercial lines as source of revenue to the State. The then policy emphasized the commercial use of forest.

Post independence perspective of policy

10.     After independence, the Government of India introduced the national Forest Policy of 1952. More or less the British Policy of the commercial use of the forest was continued under this Policy. But the National Forest Policy of 1988 revised this.

11.     The 1988 Policy, presented in the Parliament, recognized the fact that over the years the forest in this country suffered serious depletion. This was attributed to the relentless pressure arising from ever-increasing demand for fuelwood, fodder and timber, and the inadequacy of protective measures. It was recognised that there was tendency to look upon forests as revenue earning source. The Government felt the need to review the situation and to evolve, for the future, a new strategy of forest conservation, which became imperative.

12.     The salient features of the new Forest Policy are:

i.        maintenance of environmental stability through preservation and restoration of ecological balance;

ii.     conservation of the natural heritage of the country by preserving the remaining natural forests and protecting the vast genetic resources for the benefit of posterity;

iii.    meeting the basic needs of the people, especially fuelwood, fodder and small timber for the rural and the tribal people;

iv.    maintaining the intrinsic relationship between forests and the tribal and other poor people living in and around the forests by protecting their customary rights and concessions on the forests.[2]

Appropriate legislation was then expected to be undertaken to implement the Policy. -It is believed that till now no such step has been taken. List of legislative measures.

13.     The Legislative measures which existed during British
regime were:
i.Indian Forest Act, 1878;
ii.Madras Forest Act, 1882;
iii.Indian Forest Act, 1927.

14.     The Indian Forest Act 1927 continues to be in force, with state amendments made to it in several States in India. The Central Government has also enacted the Forest (Conservation) Act, 1980.

15.     In the Seventh Schedule of the Constitution of India, forest was in the State List, till 1976. By the 42nd Amendment of the Constitution, it was transposed to the Concurrent List. This enabled the Central Government to have control over forests by virtue of the enactment of 1980, mentioned above.

16.    In Karnataka, the Legislature passed the Karnataka Forest Act, 1963, which came into force from 1st June 1969. In old Mysore area, the Mysore Forest Act of 1900 existed. The Indian Forest Act of 1927 was in force in Belgaum Area and Coorg district before the Karnataka Act came into force.

17. Another unique legislation provided by the Karnataka Legislature is known as the Karnataka Preservation of Trees Act, 1976, which came into force on the Seventeenth day of July 1976.

18.     The above enactments are specifically touching forests. The
Environment Protection Act of 1986 is the general armory of law provided by the Legislature to protect and improve the environment, which includes the fauna and flora of the country. Detailed features of these legislative measures

19.    The Indian Forest Act of 1927 was enacted during British Regime. It dealt with the law relating to the formation of reserve forests, the control of transit of forest-produce, and the duty leviable on timber and other forest-produce.

20.    Under this Act the Government could form reserve forests, village forests, and protected forests. Section 3 of the Act'empowered the Government to declare any forest-land or waste-land belonging to the State as a reserved forest.

For this purpose notification may be issued by the Government, declaring its intention to constitute the reserve forest and specifying the situation and limits of such land, and appointing forest settlement officer to enquire into and to determine rights of any person in or over the land comprised within such notified area.

Once notification is issued no fresh clearings for cultivation or for any other purpose shall be made on the land covered by it. At the conclusion of the enquiry by the forest settlement officer, the rights if any recognized will get crystallized. All other rights if any get extinguished. If rights are recognized, then the same may be acquired under Land Acquisition Act. Finally the notification will be published specifying the boundary limits of the reserve forest. Thereupon the forest will become reserved forest.

21.     In consequence, none will acquire any rights in or over reserve forest. No one can make fresh clearings in that forest. Setting fire to the reserve forest is prohibited. None can trespass even for pasture of cattle. Felling or cutting trees in the forest area is prohibited. Quarrying stone etc is barred; Removing any forest-produce is not permitted. Hunting and catching elephants are barred. All prohibited acts are made punishable, for the purpose of effective control. It may be noted that the formation of reserve forest and its safety are well taken care by the law, provided the authorities effectively enforce it.

22.     If the State Government makes over the reserved forest to any village community it will become village forest thereafter. Legal consequences remain the same as mentioned above, relating to reserved forest.

23.     If the government merely desires to protect certain trees or class of trees within the forest-land or waste-land belonging to the Government then instead of reserved forest, the government may notify the area as the protected forest. The Government has to frame rules regulating the matters such as cutting and removing trees from protected forests, clearing and breaking up of land for cultivation or other purpose, hunting, pasturing cattle etc within the area of the protected forests.

24.     Another provision which exists in this Act, and which probably is scarcely used, relates to the government's power to control privately owned forest if it is required to protect against storms, floods and avalanches, or for preservation of the soil against erosion, or for the maintenance of water-supply in springs, rivers and tanks, or for protection of roads, railways or other lines of communication, or for the preservation of public health. The Government has to issue show cause notice to the owner of the land, and consider his objections, if any, -before taking its decision to create specially 'protected forest. Once Government follows the procedure and issues notification, it will prohibit the breaking up or clearing of land for cultivation, the pasturing of cattle, the firing or clearing of the vegetation within the forest or waste-land so covered by the notification.

25.     The Government has got the power to make rules to regulate the transit of all timber and forest produce, either by land or by water.

26.     The Indian Forest Act thus contains provisions to retain and grow forests in the country. Effectiveness of its implementation is all that matters.

27.     In order to provide for conservation of forests, the Parliament passed the enactment known as The Forest (Conservation) Act, 1980. This has been in force since 25th October 1980. It contains only one important section restricting" de-reservation of forests and use of forest-land for non-forest purpose. Without prior approval of Central Government, any State Government or other authority shall not de-reserve the reserved-forest, or allow forest-land or its portion to be used for any non-forest purpose.

Similarly leasing or assigning or otherwise making over any forest-land to any private person or authority or organization etc is not permissible. Clearing of trees within the forest even for reafforestation cannot be done without the approval of the Central Government. The all-comprehensive provision like this one will enable the Government to effectively control the forests from destruction.

28.     The Kamataka Forest Act, 1963 is more or less comparable with the provisions of Indian Forest Act. While in many other States in India the Indian Forest Act itself is adopted by amending it suitably, in Kamataka, there is a separate enactment. It has received the assent of the President.

29.     As regards formation of reserved forests, this enactment follows the procedure as found in the Indian Forest Act.

30.     State may by notification constitute village forests covering land at the disposal of the State Government.

31.     District Forests is another category of forest, which may be constituted under the Karnataka Forest Act. It is similar to the concept of protected forest, dealt with under the Indian Forest Act. The control over forests belonging to private owners is dealt with in Chapter V of the Karnataka Act. The transit of timber and other forest produce is regulated by this Act also. Sandalwood trees, wherever it may be, is constituted the property of government.

32.     The other unique legislation is the Karnataka Preservation of Trees Act, 1976. It is an Act intended to make better provision for the preservation of trees in the State. The preamble of the Act recognizes the need for not only preserving the forests but also planting and growing the trees to 'restore ecological balance'. It records that indiscriminate felling of large number of trees in the rural and urban areas in the State has lead to the erratic rainfall, recurring famines, floods, soil erosion and the consequent ecological disturbances in the State. With such avowed objects the enactment has been passed by the legislature.

33.     It is worth quoting the Statements of Objects and Reasons given by the legislature while enacting the provision:[3]

" Industrialisation and pressure of population have resulted in heavy destruction of tree growth in urban areas. ...The percentage of forest area in the heavy rainfall zone is very much below the required level. Denudation in the rest of the areas has catastrophic results. ... Large scale felling of trees has resulted in increased soil erosion and floods during monsoons. Stream flow during the rest of the year is reduced. Sedimentation in the reservoirs of our multi-crore projects has increased.

We have reached the stage when it is incumbent to legislate to restrict and regulate the felling of trees and prescribe growing of a minimum number where none exists." Adequate provision is made in the Act to achieve this object.

34.     This Act defines tree in such a way that any woody plant whose trunk is not less than five and half centimeters in diameter and not less than one metre in height from the ground level is constituted the tree. It includes palms, bamboos, stumps, brushwood canes etc.

35.     The Act defines what is urban area and what is rural area. By notification, the State will constitute a Tree Authority for each urban area and rural area. Similarly by notification the Act or its specified provisions will be applied to different areas mentioned in it.

36.     Whether owned by him or not, except with the previous permission of the Tree Officer. Normally permission will not be refused in certain category of cases such as dead, diseased or wind-fallen tree; tree, which is dangerous to life or property, etc.

37.     Law contemplates Tree Authority directing owner or occupier of land to plant adequate number of trees. In urban area, minimum 2 trees are required to be planted if the site is measuring 222 sq meters. Above 222, but below 892 sq metrs, 3 trees have to be planted. Above 892 sq metrs, 4 trees are required to be planted. In regard to lands controlled by industries and institutions, at least 25 trees per hectare are the minimum trees required to be planted and reared. In rural areas, the minimum to be planted is fixed as 10 trees per hectare in regard to cultivated lands, and 25 trees per hectare regarding other vacant lands. Even where the tree gets destroyed by fire, wind, lightning etc, the Tree Officer has got power to direct the owner or occupier to plant a tree in the place of fallen or destroyed tree. The planted tree should be properly grown and well preserved as laid down by section 11 of the Act. Penal provision is found in the Act so as to give teeth to the order of Tree Officer.

38.     Though these provisions are adequate for the purpose of preserving the forest or tree growth, ultimately what makes it efficacious is how the officials enforce it.

Judicial response considered

39.     Ever since the 1980's, after the Supreme Court began actively to consider the cases relating to environment, leaving aside the formalities of litigation, the judiciary in India has responded pro-actively towards environmental problems. In this paper the examination of judicial response is restricted to the cases relating to forests.

40.     Judiciary had to deal with cases involving conflict between die need to preserve forests and the need for developmental activities.

41.     The need for mining and the preservation of forest came up for decision in the case from Hazaribagh in Bihar.[4] Banshi Ram Modi had obtained a mining lease. While operating, within the area granted, he discovered two other minerals. As required by mining rules, he applied to the Government to include the said minerals also in his mining lease. This was allowed and formalities were concluded. When the Forest (Conservation) Act came into force in 1980, the authorities of Central Government wrote to the officials of the State to take note of the provisions of the said Act. As a consequence, the officials of forest department directed the party not to carry on mining without the previous approval of the Central Government, which is the requirement of the said enactment. The question agitated before the Supreme Court was as to the legality of allowing mining additional minerals within the reserved forest area. The Supreme Court ascertained the objects and reasons of the Forest

Conservation Act, examined the true scope of section 2 of that Act, and concluded that in respect of mines existing before that Act, if additional items of minerals are allowed to be mined within the already existing area of mines, the provisions of section 2 of the Act do not get attracted and consequentty-the previous approval of the Central Government was not required in that case. In the course of its judgement the Supreme Court made the following observations which are apt:-[5]

"... (T)he Act was passed with a view to checking deforestation which had been taking place in the country on a large scale and  , which had caused ecological imbalance and thus led to environmental deterioration. It is well known that breaking up of the soil or the clearing of the forest land affects seriously reafforestation or regeneration of forests and therefore such breaking up of the soil can only be permitted after taking into consideration all aspects of the question such as the overall advantages and disadvantages to the economy of the country, environmental conditions, ecological imbalance that is likely to occur, its effects on the flora and fauna in the area etc.... The Act is intended to serve a laudable purpose and it has got to be enforced strictly for the benefit of the general public. The Act applies not merely to cases of mining leases granted in respect of areas within the reserved forests but to all cases where forest land is sought to be used for non-forest purposes."

42.    Conflicting claims of Adivasis and retaining the reserved forest free from their encroachments was decided in the case arising from Mirzapur District in U.P.[6] Certain jungle lands were declared as reserved forest under the Indian Forest Act.

Adivasis and other backward people living within the jungle used the forest area, which the authorities resisted. Criminal cases of forest offences were filed and eviction proceedings were commenced. This lead to public interest complaint to the Supreme Court, which it took up and decided in the above mentioned case. When the matter was pending before the Supreme Court the government decided to locate the Thermal Plant within a part of the area in dispute. The claim of government for developmental activity intervened the consideration of rights of Adivasis. The Court issued various directions, in an attempt to retain the forest and also to allow the Adivasis to put forward their claims, and to allow the government to implement its project of Thermal Plant. The following observations of the Supreme Court is worthy of note: -[7]

" Indisputable forests are a much wanted national asset. On account of the depletion thereof ecology has been disturbed; climate has undergone a major change and rains have become scanty. These have long term adverse effects on national economy as also on the living process. At the same time, we cannot lose sight of the fact that for industrial growth, as also for provision of improved living facilities there is great demand in this country for energy such as electricity. In fact, for quite some time the entire country in general and specific parts thereof in particular, have suffered a tremendous set back in industrial activity for want of energy. A scheme to generate electricity, therefore, is equally of national importance and cannot be deferred. Keeping all these aspects in view and after hearing learned counsel for the parties in the presence of officers of the State Government and NTPC and . representatives of Banwasi Seva Ashram, we proceed to give the following directions:"

43.    The requirement of wood-based industry was considered as against the need to preserve the trees, in the case of Ganesh Wood Products, arising from Himachal Pradesh. Katha, which is an ingredient in pan and pan-masala, is derived from the central portion of the khair trees. The State had to allow the growth of industry, without sacrificing the forest wealth. In this situation, the Supreme Court directed the proper estimate of availability of the raw materials in the State and until then stopped the setting up of the industries. The Court made the following observations, which are of importance: -[8]

" The obligation of sustainable development requires that a proper assessment should be made of the forest wealth and the establishment of industries based on forest produce should not only be restricted accordingly but their working should also be monitored closely to ensure that the required balance is not disturbed. In this view of the matter, we must say that insofar as forest-based industries are concerned, there is no absolute or unrestricted right to establish industries notwithstanding the policy of liberalisation announced by the Government of India. ...

No distinction can be made between government forests and private forests in the matter of forest wealth of the nation and in the matter of environment and ecology, "[italics now supplied for emphasis]. Regarding felling of khair trees in Jammu and Kashmir region, the Supreme Court prohibited it as seen from the ruling reported in AIR 1998 SC 2553.

44.     In the case of sawmills, the Supreme Court gave several directions and prevented its erection and directed its closure in the interest of forest conservation. [9] The Court explained that the Forest Conservation Act of 1980 should apply to all forests irrespective of the nature of ownership or classification thereof. The word forest must be understood according to the dictionary meaning. Even in regard to the forests in the northeastern region of the country, the Supreme Court gave directions placing complete moratorium on granting of new licences to wood-based industries for five years[10].

45.     The Supreme Court rejected the plea of the mighty TELCO when it argued that for its sawmill, which it set up for providing wooden items required in the manufacture of trucks etc. licence was not required to be obtained under the provisions of the Bihar Saw Mills Regulation Act of 1990.[11] In the course of the judgement the Court emphasized thus:

" This Court has on more than one occasion proclaimed the need for strict regulation of wood-based industries after identifying the proliferation of such industries to constitute the main cause of degradation of forests, resulting in a serious threat to ecology and environment protection." [12]

It was the contention of the Telco that the sawmill established by them was incidental to their industry; unless the mill was established in the course of   \ trade in timber, the obligation to obtain licence will not arise. The Court did not accept this. The Court gave the following reason:

" Being a bulk consumer of a huge quantity of timber/wood, utilizing them by carrying on sawing activities in their sawmills though located in their premises driven with electrical and mechanical power, it is but necessary that the appellant Company should obtain a licence under that Act so that the authorities of the Forest Department can effectively keep track of their purchases and utilization and thereby ensure that their activities do not in any manner help or encourage even indirectly those engaged in illicit felling of trees in disposing of such ill-gotten timber/wood." [13]

In this case the Court emphasized the need to preserve forests, as against the need of industry.

46.     When the Konkan Railway Project, was challenged on the ground that it violated section 2 of Forest Conservation Act, 1980, the Bombay High Court did not accept this contention because, the actual forest area, which would get denuded by the project, was negligible.[14]

47.     The Kerala High Court upheld the need for setting up Biological Park, mainly after being satisfied that the existing forest was already degraded one and Biological Park was closely connected with preserving wild life. The project was known as Agasthyavanam Biological Park, and a portion ofKottur Reserve Area was to be utilized for this purpose.[15]

48.     The Madras High Court did not permit the quarrying of black granite in a portion of the forest situated in Dharmapuri District in Tamilnadu. Under the Forest Conservation Act, prior permission was not obtained in that case, though the State, while granting the mining lease, stipulated that actual quarrying should be started after obtaining the permission of the Central Government. According to the High Court, the concept of prior approval under chat Act meant that the State Government should have obtained the approval of the Central Government even before granting the quarrying lease. Therefore, the High Court nullified the mining lease that was granted.[16]

Conclusion

49.     The enactments mentioned above indicate that the Legislature has brought out legislations, keeping in its view the need to preserve the ecological balance by preserving forests and by planting and growing the trees. The Courts have not lagged behind in upholding the cause of preserving the environment. Probably what lags behind is the executive wing of the State. It should implement the provisions of law keeping in view the spirit behind the legislation. The executive should not yield to the pressure of lobbies. The cause for the neglect to enforce and implement the law is attributable to the usual ills of bureaucracy.