NARINDER SINGH & ORS. vs DIVESH BHUTANI & ORS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ORIGINAL JURISDICTION

CIVIL APPEAL NO. 10294 OF 2013

NARINDER SINGH & ORS. …APPELLANT(S)

DIVESH BHUTANI & ORS. ...RESPONDENT(S)

With

CIVIL APPEAL No. 8454/2014

CIVIL APPEAL No. 8173/2016

CIVIL APPEAL No. 11000/2013

WRIT PETITION (Civil) No. 1008/2021

WRIT PETITION (Civil) No. 1031/2021

WRIT PETITION (Civil) No. 1320/2021

J U D G M E N T

ABHAY S. OKA, J.

1. The broad issue involved in these appeals and writ

petitions is “Whether a land covered under a special order issued

by the Government of Haryana under Section 4 of the Punjab

Land Preservation Act, 1900 (for short, ‘PLPA’) is a ‘forest land’

within the meaning of the Forest (Conservation) Act, 1980 (for

short, ‘the 1980 Forest Act’)?”

FACTUAL ASPECTS

2. Civil Appeal No.10294 of 2013, Civil Appeal No.8454 of

2014, Civil Appeal No.8173 of 2016 and Civil Appeal No.11000

of 2013 take exception to the orders passed by the National

Green Tribunal (for short, ‘the NGT’).

3. Civil Appeal No.10294 of 2013 takes exception to the order

dated 03rd May 2013 passed by the NGT in Original Application

No.42 of 2013. The said application was filed for inviting the

attention of the NGT to the illegal non-forest activities of the

encroachers on the lands bearing Khasra Nos.1359, 1374 and

1378 of Village Anangpur Tehsil Ballabhgarh, District Faridabad

in the State of Haryana. The NGT passed the impugned order

restraining the carrying on of any non-forest activities on the

subject lands. The NGT proceeded on the footing that the lands

at village Anangpur covered by the order dated 18th August 1992

issued under Section 4 of PLPA were forest lands within the

meaning of the 1980 Forest Act. Before the said order dated 18th

August 1992 was passed, a notification dated 10th April 1992

under Section 3 of PLPA was issued notifying the entire area

covered by Ballabhgarh Tehsil of Faridabad District. The

appellants are running marriage halls on the land subject matter

of the said order dated 18th August 1992, issued under Section

4 of PLPA.

4. Civil Appeal No.8173 of 2016 impugns the order dated 16th

May 2016 passed by the NGT in Original Application No.519 of

2015. In Original Application No.519 of 2015, a prayer was

made to stop the commercial and non-forest activities on the

lands bearing Khasra No.182 Min, RECT No.61, Kila No.19 (8-

0), 20/1(0-7) and 22/2 (7-17) of Village Ankhir, Tehsil

Ballabhgarh, District Faridabad in the State of Haryana. The

said lands were the subject matter of another order issued on

18th August 1992 by the Government of Haryana in the exercise

of the power under Section 4 of PLPA in respect of certain lands

in village Ankhir. The NGT held that the lands covered by the

said order under Section 4 were forest lands within the meaning

of the 1980 Forest Act.

5. Civil Appeal No.11000 of 2013 takes exception to the same

order dated 03rd May 2013 passed by the NGT in Original

Application No.42 of 2013, which is also the subject matter of

challenge in Civil Appeal No.10294 of 2013. The appellants claim

to be the owners of a restaurant on the land subject matter of

the order dated 18th August 1992, issued under Section 4 of

PLPA.

6. Civil Appeal No.8454 of 2014 also takes exception to the

same order dated 03rd May 2013 of the NGT. The appellants

therein are having marriage halls on the subject land.

7. The petitioners in Writ Petition (Civil) No.1031 of 2021 have

invoked Article 32 of the Constitution of India. The petitioners

claim to be the holders of the lands in Villages Anangpur, Ankhir

and Mewla Maharajpur (for short, ‘the said three villages’) in

Tehsil Ballabhgarh, District Faribadad in the State of Haryana.

The lands held by them are the subject matter of the three

separate orders dated 18th August 1992 issued under Section 4

of PLPA in respect of certain lands in the said three villages. The

petition is based on a Public Notice dated 21st August 2021

issued by the Municipal Corporation of Faridabad informing that

in compliance with the orders passed by this Court, a time of

two days has been granted to the members of the public to

remove illegally constructed farm houses/banquet halls/

structures on forest lands, failing which the Municipal

Corporation and Forest Department of the State Government will

undertake action to remove the said structures on 23rd August

2021. In the writ petition, it is contended that the said notice

was issued based on the orders passed by this Court from time

to time in the Petitions for Special Leave to Appeal (Civil)

Nos.7220-7221 of 2017 (Municipal Corporation of Faridabad v.

Khori Gaon Residents Welfare Association through its President).

A declaration was prayed for that the orders dated 18th August

1992 issued under Section 4 of PLPA were illegal apart from

praying for the other reliefs. It was contended that the said

orders dated 18th August 1992 were illegal as the compliance

with the mandatory provisions of Sections 3, 6, 7 and 14 of PLPA

was not made. A prayer was also made for issuing a writ of

mandamus to the State of Haryana to notify and implement the

Punjab Land Preservation (Haryana Amendment) Act, 2019 (for

short, ‘the 2019 Amendment Act’).

8. The petitioner in Writ Petition (Civil) No.1008 of 2021

claims to be a resident of Village Ankhir. He claims to be the

owner of the land bearing Khasra Nos.32 and 39 of Village

Ankhir. One of the contentions raised by the petitioner is that

the construction on the subject lands was made before 18th

August 1992. Therefore, a direction is sought to restrain the

respondents from disturbing the peaceful possession of the

petitioner over the subject land and from demolishing structures

thereon.

9. The petitioners in Writ Petition (Civil) No.1320 of 2021

claim to be the residents of Village Old Lakkarpur Khori. They

contend that the Faridabad Municipal Corporation acting in

collusion and connivance with the owners of the hotels and

farmhouses mentioned in the petition has illegally demolished

their structures. It is contended that the said Municipal

Corporation has implemented orders passed by this Court in the

Petitions for Special Leave to Appeal Nos.7220-7221 of 2017 by

picking and choosing some structures while not disturbing the

hotels and farmhouses constructed on the lands subject matter

of the orders passed under Section 4 of PLPA. The prayer in the

petition is for issuing a writ of mandamus, directing the

respondents to restore possession of the petitioners in respect of

their residential structures in Village Old Lakkarpur Khori.

SUBMISSIONS OF THE PETITIONERS/APPELLANTS

10. Shri Vikas Singh, the learned Senior Counsel appearing for

the petitioners in Writ Petition (Civil) No.1031 of 2021, has made

detailed submissions. His primary submission is that merely

because the subject lands are covered by the

notifications/orders issued by the State of Haryana under

Sections 3, 4 and 5 of PLPA, the same cannot be ipso facto

treated as forest lands within the meaning of the 1980 Forest

Act. He submitted that though the lands in question have been

shown as unclassified forests in the records of the State Forest

Department, it is not conclusive as the Forest Department is

only a supervisory department. He invited our attention to the

scheme of PLPA and particularly, Sections 3, 4 and 5. He pointed

out that a notification under Section 3 of PLPA can be issued

only when, according to the opinion of the State Government,

conservation of sub-soil water or the prevention of erosion is

needed in any area subject to erosion or likely to become liable

to erosion. He submitted that the orders under Sections 4 and 5

of PLPA could only be issued in respect of the lands covered by

a valid notification under Section 3. His submission is that

issuing a proper notification under Section 3 of PLPA is a sine

qua non for issuing the orders under Sections 4 and 5 of PLPA.

His submission is that a notification under Section 3 of PLPA

was not issued regarding any of the lands in the said three

villages. He relied upon the notification dated 17th October 1989

issued under the Punjab Land Revenue Act, 1887 (for short, ‘the

Land Revenue Act’) and contended that by the said notification,

the State Government varied the limits of Tehsil Ballabhgarh,

District Faridabad by excluding the area of the said three

villages. He submitted that after 17th October 1989, a

notification under Section 3 of PLPA was not issued regarding

the lands in the said three villages. Therefore, the orders issued

in respect of the three villages under Sections 4 and 5 are illegal.

He pointed out that after the amendment made in 1926 to PLPA,

the orders contemplated under Sections 4 and 5 could be issued

only for a temporary period. He submitted that once the period

specified in the orders under Sections 4 and 5 expires, the

restrictions imposed by the said orders cease to apply. He

pointed out that in any case, the orders dated 18th August 1992

issued under Section 4 of PLPA prohibit certain activities such

as clearing or breaking up of lands and quarrying of the stones,

etc., without permission of the authorities mentioned therein.

Thus, the only restriction imposed by the orders under Section

4 is of prohibiting certain activities without obtaining prior

permission from the authorities mentioned therein. He urged

that the provisions of PLPA are not intended to protect any forest

or forest activities.

11. He invited our attention to the provisions of the Indian

Forest Act, 1927 (for short, ‘the 1927 Forest Act’). He submitted

that the Act deals with three categories of forest lands. The first

category is of the reserved forests covered by Sections 3 to 27.

The second category is of the protected forests or waste-lands

which are the property of the Government and not included in

the reserved forests. Sections 29 to 34 enable the State

Government to notify such lands as protected forests. The third

category is of private lands. Sections 35 to 38 allow the State

Government to regulate or prohibit certain activities, such as,

breaking up or clearing of land for cultivation, etc., in any forest

or waste lands. He pointed out that the important difference

between Section 4 of PLPA and Section 35 of the 1927 Act is that

Section 4 contains permissive or enabling provisions, and

Section 35 is completely prohibitory. He urged that what is

prohibited under Section 35 cannot be permitted even by the

authorities. He submitted that even the lands covered by

Sections 35 to 38 of the 1927 Act, which are private lands with

forests, do not vest in the Government. He pointed out that the

acquisition of such lands can be made under the Land

Acquisition Act, 1894 by the State Government or upon the

request of the owners, which should be made within not less

than three months from the notification issued under Section 35

and not later than twelve years from the date of such

notification. He urged that the 1927 Act is the appropriate

legislation dealing with forests. The fact that the provisions of

Sections 35 to 38 dealing with private lands have been included

in Chapter V of the 1927 Act fortifies the submission of the

petitioners that PLPA is not a legislation which deals with or is

intended to deal with forests on private properties.

12. Without prejudice to the submission that PLPA does not

deal with forests at all, the learned senior counsel submitted that

after the 1927 Forest Act came into force, the provisions of the

PLPA, to the extent to which the same deal with lands which fall

within the domain of the 1927 Forest Act, became inoperative

being repugnant to the 1927 Forest Act. The 1927 Forest Act is

a central legislation, which must prevail. Hence, if any private

land is to be treated as a forest land, the same must satisfy the

tests laid down in Chapter V of the 1927 Forest Act.

13. Another limb of his argument is that the subject lands were

a part of the controlled area notified under Section 29 of the

Faridabad Complex (Development and Regulation) Act, 1971 (for

short, ‘the 1971 Act’) and in fact, the final development plan

covering the subject lands was prepared and notified on 17th

December 1991. The development plan under the 1971 Act is

prepared after following a detailed procedure of assessment of

areas which are likely to be notified as controlled areas for the

purposes of planned development. Once a land is designated as

a controlled area, it will cease to be a forest.

14. The learned senior counsel urged that as mandated by

Section 6 of PLPA, no inquiry was conducted before imposing the

regulations and restrictions under Sections 4 and 5 of PLPA.

Public notice of the Government Orders dated 18th August 1992

was not published in accordance with Section 7 of PLPA.

Moreover, under Section 7(b), the land owners are entitled to

receive compensation from the State Government on account of

restrictions imposed by Sections 4 or 5 of PLPA. But the land

owners affected by the orders dated 18th August 1992 have not

been paid any compensation. He submitted that even Section

37 of the 1927 Forest Act provides for payment of compensation

to the owners of the private lands having a forest. He urged that

assuming that the orders dated 18th August 1992 under Section

4 are legal, the petitioners ought to have been paid adequate

compensation. He submitted that once the 2019 Amendment Act

is allowed to be implemented by modifying the order dated 1st

March 2019 passed in Writ Petition (Civil) No.4677 of 1985, the

entire issue will be ironed out. He submitted that the 2019

Amendment Act seeks to strike a balance between the rights of

the land owners and the need to have environmental protection.

15. Referring to the decision of this Court in the case of T.N.

Godavarman Thirumulkpad v. Union of India and Ors.1

(1997 Godavarman’s case), he submitted that the said decision

does not deal with PLPA. He also invited our attention to the

further order passed in the case of T. N. Godavarman

Thirumulkpad v. Union of India and Ors.2 (2008

Godavarman’s case) and submitted that this Court considered

lands covered by the orders under Sections 4 and 5 of PLPA only

in the context of carrying on mining activity. The core issue of

whether the lands subject matter of the orders under Section 4

and 5 of PLPA ipso facto become forest lands under the 1980

(1997) 2 SCC 267

(2008) 16 SCC 401

Forest Act is not considered by this Court. He also commented

upon another decision of this Court in the case of M.C. Mehta

v. Union of India and Ors.3 (1st M.C.Mehta case). He submitted

that what is considered by this Court is the stand of the Forest

Department of the State Government that the areas notified

under Sections 4 and 5 of PLPA are not forests. He pointed out

that while rejecting the said contention, this Court has not dealt

with the core issue of the legal effect of the orders issued under

Sections 4 and 5. The same is the argument made by him about

a decision of this Court in the case of M.C. Mehta v. Union of

India & Ors.4 (2nd M.C. Mehta case). However, he submitted that

in the case of B.S. Sandhu v. Government of India and Ors.5,

this Court has categorically held that the lands covered by the

orders under Sections 4 and 5 of PLPA may or may not be forest

lands within the meaning of the 1980 Act.

16. The learned counsel made extensive submissions on the

decisions of this Court in the case of M.C. Mehta (Kant Enclave

Matters, In Re.) v. Union of India & Ors.6 (3rd M.C. Mehta case).

His submission is that though this Court has dealt with the

(2004) 12 SCC 118

(2008) 17 SCC 294

(2014) 12 SCC 172

(2018) 18 SCC 397

issue raised by the applicant (R. Kant & Co.) about the order

dated 18th August 1992 issued under Section 4, the decision is

per incuriam as this Court has failed to consider and follow the

binding decision of a co-ordinate Bench in the case of B.S.

Sandhu5. Moreover, he has submitted that the applicant in the

said case did not challenge the validity of the order dated 18th

August 1992 made under Section 4 of PLPA.

17. Relying upon various maps tendered across the bar, he

urged that if the lands covered by the notifications/orders under

Sections 3, 4 and 5 of PLPA are to be treated as forests, the entire

Districts of Faridabad and Gurugram will have to be treated as

forests under the 1980 Forest Act, which will have disastrous

consequences.

18. The learned counsel appearing for the appellants in Civil

Appeal No.8173 of 2016 firstly urged that the Faridabad Tehsil

has not been notified under Section 3 of PLPA. He pointed out

that Ballabhgarh and Faridabad are the Tehsils within District

Faridabad. The notification under Section 3 of PLPA dated 10th

April 1992 is only in respect of Ballabhgarh Tehsil. His

submission is that there was no notification issued under

Section 3 of PLPA in respect of the land of the appellants in

village Ankhir and therefore, the order under Section 4 is illegal.

He submitted that the 1927 Forest Act provides for a grant of

compensation in respect of the private lands declared as forests.

He submitted that there is an inconsistency between the 1927

Forest Act which is a Central legislation and PLPA which is a

State Legislation. He urged that under Sections 4, 29 and 35 of

the 1927 Forest Act, there is a provision to declare lands of

different categories as forests. However, the same can be done

only after prior notice and after granting an opportunity of being

heard to the affected persons. Moreover, under Section 37 of the

1927 Forest Act, there is a provision for acquiring private land

declared as a forest and consequently, there is a provision

regarding payment of compensation. Assuming that the lands

covered by the orders issued under Section 4 and 5 of PLPA are

forests under the 1980 Forest Act, there is no provision for giving

a hearing to the owners/affected persons before issuing the

orders. There is no provision for acquiring such lands and only

a limited compensation is payable under PLPA to the owners. He

pointed out the earlier affidavits filed on behalf of the State of

Haryana. The First Affidavit is of Shri Banarsi Dass, Principal

Chief Conservator of Forests, Haryana which is dated 08th

December 1996. He also pointed out the affidavit dated 25th

February 1997 filed by Shri S.K. Maheswari, Commissioner and

Secretary to the Government of Haryana, Forest Department. He

submitted that assuming that the contentions raised in both the

affidavits are correct, the area covered by the notifications under

Sections 4 and 5 of PLPA will continue to be the forest only

during the currency of the periods specified in the orders. The

learned counsel also relied upon the decisions of this Court in

the case of B. S. Sandhu5 in support of his case that the lands

covered by the orders passed under Sections 4 and 5 are not

necessarily forests within the meaning of the 1980 Forest Act.

He submitted that the limited object of PLPA was to preserve

sub-soil water and to stop soil erosion. He submitted that PLPA

was never intended to deal with forests or forest lands. He

submitted that whether a particular land is a forest within the

meaning of the 1980 Forest Act, is an issue to be considered and

decided in the facts of each case. Lastly, he urged that Section 4

of PLPA prohibits only certain activities without permission of

the authorities named therein. This is an indication that the

lands covered by the orders under Section 4 are not forests.

19. The submissions of the appellants in Civil Appeal No.10294

of 2013 are also similar. In addition, a submission was made

that as required by Section 7 of PLPA, notifications/orders under

Sections 3, 4 and 5 were not published in vernacular language.

The appellants also relied upon the provisions of Section 29 of

the 1971 Act and Section 27 of the National Capital Region

Planning Board Act, 1985 (for short, ‘the NCR Act’). He

submitted that the NCR Act will have an overriding effect over

PLPA, which is a State Act.

THE SUBMISSIONS OF THE STATE GOVERNMENT

20. The learned Solicitor General of India appearing for the

State Government extensively relied upon the Additional

Affidavit filed by Shri Suresh Dalal, Addl. Principal Chief

Conservator of Forest, Haryana. He submitted that the effect of

the 1980 Forest Act is that except for certain purposes

mentioned in Section 2, forest lands can always be diverted for

non-forest use with the prior permission of the Central

Government. Our attention was invited to various provisions of

PLPA and amendments carried out thereto from time to time. He

submitted that the Statement of Objects and Reasons of the

2019 Amendment Act makes it clear that the object of PLPA was

not to extinguish property rights. The learned counsel urged that

the main object was to prevent erosion of soil and conservation

of sub-soil water. It was contended that PLPA has no connection

whatsoever with the issue of forests. He submitted that the only

decision of this Court that deals with the effect of the orders

under Sections 4 and 5 is in the case of B. S. Sandhu5, which

clearly holds that a land covered by such orders may or may not

be a forest. His submission is that the decision in the 3rd M.C.

Mehta case6

ignores the binding decision of a co-ordinate Bench

in the case of B. S. Sandhu5. The learned counsel clarified the

stand taken on oath by the State Government in earlier

proceedings. He submitted that in the case of Panchkula,

Ambala, Yamunanagar, Gurugram, Faridabad and some other

Districts, practically 100% area had been notified under

Sections 3, 4 and 5 of PLPA, and therefore, the entire area

covering the said Districts cannot be a forest. It was pointed out

that about 39.35% of the geographical area of the State of

Haryana has been notified under PLPA. His submission is that

all the lands notified under PLPA cannot be treated as forest

lands under the 1980 Forest Act as the consequences thereof

will be disastrous. Our attention was invited to paragraph 81 of

the said Additional Affidavit, in which it is pointed out that about

59 public projects have come up in the areas notified under

Sections 3, 4 and 5 of PLPA. The projects/structures include

CRPF Group Centre, Terminal Ballistic Research Laboratory,

Police Lines, Government ITI College, etc. He laid emphasis on

the 2019 Amendment Act. It was submitted that as there is no

challenge to the validity of the 2019 Amendment Act, the State

Government may be permitted to implement the same. The

learned counsel further stated that the only factual statement

made in the earlier affidavits dated 08th December 1996 and 25th

February 1997 is that the areas notified under Sections 4 and 5

of PLPA were being shown as State regulated forest areas during

the currency of the notifications. However, that practice was

discontinued later. The affidavits do not deal with the status of

the notified lands.

SUBMISSIONS OF THE INTERVENORS/APPLICANTS

21. The learned senior counsel Shri Colin Gonsalves appearing

for the applicant in I.A. No. 33254 of 2022 firstly submitted that

the claim made by the State that very large areas of the State

and in particular Faridabad and Gurgaon districts have been

notified under PLPA is fallacious. For that purpose, he relied

upon the statistics produced by the State Government itself in

its additional affidavit. He submitted that a very tall and

incorrect claim has been made by the State Government that

nearly 40% of the area of the State will be a forest if the lands

notified under Sections 3 and 4 of PLPA are treated as forest

lands. Relying upon paragraph 50 of the said affidavit, he

pointed out that out of the geographical area of 1,25,800

hectares of Gurugram district, the special orders under Sections

4 and 5 cover only an area of 6821 hectares. Similarly, out of the

geographical area of 74,100 hectares of Faridabad district, only

an area of 5611 hectares has been covered by the special orders

under Sections 4 and 5 of PLPA. He pointed out that as stated

in paragraph 49 of the same affidavit, the total area of the forests

under the 1927 Forest Act and unclassified forests represents

3.31 per cent of the geographical area of the State. He submitted

that even the State Government has taken a consistent stand

that the areas covered by notifications issued under clause (a) of

Sections 4 and 5 of PLPA are forests within the meaning of the

1980 Forest Act. He submitted that the same stand was

specifically taken by the State Government in I.A. filed by it

before the High Court in the case of Vijay Bansal & Others v.

State of Haryana & others7

. He urged that Section 2 of the

1980 Forest Act overrides all the laws for the time being in force

in the State. He submitted that the only effect of Section 2 of

the 1980 Act is that there is an embargo on the State

Government or any other authority on passing an order

permitting the use of any forest land for non-forest purposes

without the prior approval of the Central Government. He

submitted that as far as the order dated 18th August 1992 under

Section 4 of the PLPA in respect of the lands in village Anangpur

is concerned, the issue has been concluded in the 3

rd M.C.

Mehta case6 by this Court by upholding the validity of the same

and by holding that the lands covered by the order are forest

lands under the 1980 Forest Act.

22. The submission of Shri Sanjay Parikh, the learned senior

counsel is that the lands notified under Sections 4 and 5 of PLPA

were not only recorded as forest lands in the Government

records but were always treated as forests by the Forest

Department of the State of Haryana.

23. He submitted that the State of Haryana filed an affidavit of

Shri Banarasi Das, the Principal Chief Conservator of Forests in

7 2009 SCC online P&H 8073

Civil Writ Petition No. 171 of 1996 which was the connected case

heard along with the main case in which the decision of this

Court in the case of 1997 T.N. Godavaran’s case1 was

rendered. The stand taken by the State Government in the said

affidavit was that the areas covered by the notifications issued

under PLPA are forest lands. The learned counsel submitted

that this Court has deprecated an attempt made by the

Government of Haryana to take a somersault and to take a stand

contrary to what is stated in the said affidavit.

24. The learned counsel appearing for the applicant in I.A. No.

14685/2021 supported the submissions made by other

applicants/intervenors. His submission is that any land shown

as forest land in the government records will be a forest within

the meaning of the 1980 Forest Act. He submitted that a narrow

meaning cannot be given to the concept of the government

records by holding that only the revenue records/land records

are government records. He urged that even the records

maintained by the Forest Department are also government

records. The learned Amicus curiae also made brief

submissions.

CONSIDERATION OF SUBMISSIONS

THE APPROACH OF THE COURT IN INTERPRETING THE

LAWS RELATING TO FORESTS AND THE ENVIRONMENT

25. While interpreting the laws relating to forests, the Courts

will be guided by the following considerations:

i. Under clause (a) Article 48A forming a part of Chapter IV

containing the Directive Principles of State Policy, it is the

obligation of the State to protect and improve the

environment and to safeguard the forests;

ii. Under clause (g) of Article 51A of the Constitution, it is a

fundamental duty of every citizen to protect and preserve the

natural environment, including forests, rivers, lakes and

wildlife etc.;

iii. Article 21 of the Constitution confers a fundamental right on

the individuals to live in a pollution-free environment. Forests

are, in a sense, lungs which generate oxygen for the survival

of human beings. The forests play a very important role in

our ecosystem to prevent pollution. The presence of forests

is necessary for enabling the citizens to enjoy their right to

live in a pollution-free environment;

iv. It is well settled that the Public Trust Doctrine is a part of our

jurisprudence. Under the said doctrine, the State is a trustee

of natural resources, such as sea shores, running waters,

forests etc. The public at large is the beneficiary of these

natural resources. The State being a trustee of natural

resources is under a legal duty to protect the natural

resources. The public trust doctrine is a tool for exerting

long-established public rights over short-term public rights

and private gains;

v. Precautionary principle has been accepted as a part of the

law of the land. A conjoint reading of Articles 21, 48A and

51-A(g) of the Constitution of India will show that the State is

under a mandate to protect and improve the environment and

safeguard the forests. The precautionary principle requires

the Government to anticipate, prevent and remedy or

eradicate the causes of environmental degradation including

to act sternly against the violators;

vi. While interpreting and applying the laws relating to the

environment, the principle of sustainable development must

be borne in mind. In the case of Rajeev Suri v. Delhi

Development Authority and Others8

, a Bench of this Court

to which one of us is a party (A.M. Khanwilkar, J.) has very

(2021) SCC online SC 7

succinctly dealt with the concept of sustainable development.

Paragraphs 507 and 508 of the said decision reads thus:

“507. The principle of sustainable

development and precautionary principle

need to be understood in a proper context.

The expression “sustainable

development” incorporates a wide

meaning within its fold. It contemplates

that development ought to be sustainable

with the idea of preservation of natural

environment for present and future

generations. It would not be without

significance to note that sustainable

development is indeed a principle of

development - it posits controlled

development. The primary requirement

underlying this principle is to ensure that

every development work is sustainable;

and this requirement of sustainability

demands that the first attempt of every

agency enforcing environmental rule of

law in the country ought to be to alleviate

environmental concerns by proper

mitigating measures. The future

generations have an equal stake in the

environment and development. They are

as much entitled to a developed society

as they are to an environmentally secure

society. By Declaration on the Right to

Development, 1986, the United Nations has

given express recognition to a right to

development. Article 1 of the Declaration

defines this right as:

“1. The right to development is an inalienable

human right by virtue of which every human

person and all peoples are entitled to

participate in, contribute to, and enjoy

economic, social, cultural and political

development, in which all human rights and

fundamental freedoms can be fully realized.”

508. The right to development, thus, is

intrinsically connected to the

preservance of a dignified life. It is not

limited to the idea of infrastructural

development, rather, it entails human

development as the basis of all

development. The jurisprudence in

environmental matters must

acknowledge that there is immense interdependence between right to

development and right to natural

environment. In International Law and

Sustainable Development, Arjun Sengupta

in the chapter “Implementing the Right to

Development” notes thus:

“… Two rights are interdependent if the level

of enjoyment of one is dependent on the level

of enjoyment of the other…”

vii. Even ‘environmental rule of law’ has a role to play. This

Court in the case of Citizens for Green Doon and Others

v. Union of India and Others

9 has dealt with another

important issue of lack of consistent and uniform

standards for analysing the impact of development

projects. This Court observed that the principle of

sustainable development may create differing and

arbitrary metrics depending on the nature of individual

(2021) SCC OnLine SC 1243

projects. Therefore, this Court advocated and accepted

the need to apply and adopt the standard of

‘environmental rule of law’. Paragraph 40 of the said

decision reads thus:

“40. A cogent remedy to this problem is to

adopt the standard of the ‘environmental rule of

law’ to test governance decisions under which

developmental projects are approved. In its

2015 Issue Brief titled “Environmental Rule of

Law: Critical to Sustainable Development”, the

United Nations Environment Programme has

recommended the adoption of such an

approach in the following terms:

“Environmental rule of law integrates the

critical environmental needs with the essential

elements of the rule of law, and provides the

basis for reforming environmental governance.

It prioritizes environmental sustainability by

connecting it with fundamental rights and

obligations. It implicitly reflects universal moral

values and ethical norms of behaviour, and it

provides a foundation for environmental rights

and obligations. Without environmental rule of

law and the enforcement of legal rights and

obligations, environmental governance may be

arbitrary, that is, discretionary, subjective, and

unpredictable.”

FORESTS UNDER THE 1927 FOREST ACT

26. The concept of forest under the 1927 Forest Act appears to

be different from the concept of forest under the 1980 Forest Act.

The analysis of the provisions of both the enactments will show

that their spheres of operation are not the same though there

may be some overlap.

27. The 1927 Forest Act deals with reserved forests (Chapter

II), village forests (Chapter III) and protected forests (Chapter IV).

Chapter V contains provisions which apply to forests which are

not vested in the State Government. First three categories of

forests are on the lands vesting in the State. Under the 1927

Forest Act, every forest does not ipso facto become a reserved

forest or a protected forest. Chapter II contains an elaborate

procedure for declaring any land vested in the State Government

as a reserved forest. Only after following an elaborate process

laid down in Chapter II that a land vesting in the State

Government can be declared as a reserved forest. Once a

notification is issued under Section 20 in the official gazette

declaring a particular land as a reserved forest, prohibitions

contained in Sections 26 of the 1927 Forest Act apply. Section

26 reads thus:

“26. Acts prohibited in such forests.–(1)

Any person who–

(a) makes any fresh clearing prohibited by

section 5, or

(b) sets fire to a reserved forest, or, in

contravention of any rules made by the State

Government in this behalf, kindles any fire, or

leaves any fire burning, in such manner as to

endanger such a forest;

or who, in a reserved forest–

such seasons as the Forest-officer may notify

in this behalf,

(d) trespasses or pastures cattle, or permits

cattle to trespass;

(e) causes any damage by negligence in felling

any tree or cutting or dragging any timber;

(f) fells, girdles, lops, or bums any tree or

strips off the bark or leaves from, or otherwise

damages, the same;

(g) quarries stone, bums lime or charcoal,

or collects, subjects to any manufacturing

process, or removes, any forest-produce;

(h) clears or breaks up any land for

cultivation or any other purpose;

(i) in contravention of any rules made in this

behalf by the State Government hunts,

shoots, fishes, poisons water or sets traps or

snares; or

(j) in any area in which the Elephants’

Preservation Act, 1879 (6 of 1879), is not in

force, kills or catches elephants in

contravention of any rules so made,

shall be punishable with imprisonment for a

term which may extend to six months, or with

fine which may extend to five hundred rupees,

or with both, in addition to such

compensation for damage done to the forest

as the convicting Court may direct to be paid.

(2) Nothing in this section shall be deemed to

prohibit-

(a) any act done by permission in writing

of the Forest-officer, or under any rule

made by the state Government; or

(b) the exercise of any right continued

under clause (c) of sub-section (2) of

section 15, or created by grant or contract

in writing made by or on behalf of the

Government under section 23.

(3) Whenever fire is caused willfully or by

gross negligence in a reserved forest, the State

Government may (notwithstanding that any

penalty has been inflicted under this section)

direct that in such forest or any portion there

of the exercise of all rights of pasture or to

forest produce shall be suspended for such

period as it thinks fit.

(emphasis added)

In the context of clause (a) of Sub-Section (1) of Section 26,

Section 5 of the 1927 Forest Act is also relevant which reads

thus:

“5. Bar of accrual of forest-rights.-After the

issue of a notification under section 4, no

right shall be acquired in or over the land

comprised in such notification, except by

succession or under a grant or contract in

writing made or entered into by or on behalf

of the Government or some person in whom

such right was vested when the notification

was issued; and no fresh clearings for

cultivation or for any other purpose shall

be made in such land except in accordance

with such rules as may be made by the

State Government in this behalf.”

(emphasis added)

28. There is a power vested in the State Government under

Section 28 to assign to any village community the rights of the

State Government over any land which has been constituted as

a reserved forest. Once this power is exercised in respect of a

reserved forest, it becomes a village forest.

29. Under Chapter IV of the 1927 Forest Act, there is a power

vested in the State Government to declare any forest land or

waste-land vested in it, which is not included in a reserved

forest, as a protected forest. The consequences of a land being

declared as a protected forest are not as stringent as the

consequences of the declaration of a land as a reserved forest.

Sections 30 and Section 33 are relevant for that purpose, which

read thus:

“30. Power to issue notification reserving

trees, etc.–The State Government may, by

notification in the Official Gazette,

(a) declare any trees or class of trees in a

protected forest to be reserved from a date

fixed by, the notification;

(b) declare that any portion of such forest

specified in the notification shall be closed for

such term, not exceeding thirty years, as the

State Government thinks fit, and that the

rights of private persons, if any, over such

portion shall be suspended during such

terms, provided that the remainder of such

forest be sufficient, and in a locality

reasonably convenient, for the due exercise of

the right suspended in the portion so closed;

the quarrying of stone, or the burning of

lime or charcoal, or the collection or

subjection to any manufacturing process,

or removal of, any forest-produce in any

such forest, and the breaking up or

clearing for cultivation, for building, for

herding cattle or for any other purpose, of

any land in any such forest.

xxx xxx xxx

33. Penalties for acts in contravention of

notification under section 30 or of rules

under section 32.--(1) Any person who

commits any of the following offences,

namely:–

(a) fells, girdles, lops, taps or bums any tree

reserved under section 30, or strips off the

bark or leaves from, or otherwise damages,

any such tree;

(b) contrary to any prohibition under section

30, quarries any stone, or bums any lime or

charcoal or collects, subjects to any

manufacturing process, or removes any

forest-produce;

30, breaks up or clears for cultivation or any

other purpose any land in any protected

forest;

(d) sets fire to such forest, or kindles a fire

without taking all reasonable precautions to

prevent its spreading to any tree reserved

under section 30, whether standing fallen or

felled, or to say closed portion of such forest;

(e) leaves burning any fire kindled by him in

the vicinity of any such tree or closed portion;

(f) fells any tree or drags any timber so as to

damage any tree reserved as aforesaid;

(g) permits cattle to damage any such tree;

(h) infringes any rule made under section 32,

shall be punishable with imprisonment for a

term which may extend to six months, or with

fine which may extend to five hundred rupees,

or with both.

(2) Whenever fire is caused wilfully or by gross

negligence in a protected forest, the State

Government may, notwithstanding that any

penalty has been inflicted under this section,

direct that in such forest or any portion

thereof the exercise of any right of pasture or

to forest-produce shall be suspended for such

period as it thinks fit.”

(emphasis added)

30. Chapter V of the 1927 Forest Act applies to forests or

waste-lands not being the property of the Government. Thus,

Chapter V applies to forests on private properties as the title of

the Chapter is “Of the control of forests and lands not being

property of Government”. Sections 35 to 37 are relevant which

read thus:

“35. Protection of forests for special

purposes.-(1) The State Government may, by

notification in the Official Gazette, regulate or

prohibit in any forest or waste-land

(a) the breaking up or clearing of land for

cultivation;

(b) the pasturing of cattle; or

when such regulation or prohibition appears

necessary for any of the following purposes:–

(i) for protection against storms, winds, rolling

stones, floods and avalanches;

(ii) for the preservation of the soil on the ridges

and slopes and in the valleys of hilly tracts, the

prevention of land slips or of the formation of

ravines, and torrents, or the protection of land

against erosion, or the deposit thereon of sand,

stones or gravel;

(iii) for the maintenance of a water-supply in

springs, rivers and tanks;

(iv) for the protection of roads, bridges,

railways and other lines of communication;

(v) for the preservation of the public health.

(2) The State Government may, for any such

purpose, construct at its own expense, in or

upon any forest or waste-land, such work as it

thinks fit.

(3) No notification shall be made under subsection (1) nor shall any work be begun under

sub-section (2), until after the issue of a notice

to the owner of such forest or land calling on

him to show cause, within a reasonable period

to be specified in such notice, why such

notification should not be made or work

constructed, as the case may be, and until his

objections, if any, and any evidence he may

produce in support of the same, have been

heard by an officer duly appointed in that

behalf and have been considered by the State

Government.

36. Power to assume management of

forests.–

(1) In case of neglect of, or wilful disobedience

to, any regulation or prohibition under section

35, or if the purposes of any work to beconstructed under that section so require, the

State Government may, after notice in writing

to the owner of such forest or land and after

considering his objections, if any, place the

same under the control of a Forest-officer, and

may declare that all or any of the provisions of

this Act relating to reserved forests shall apply

to such forest or land.

(2) The net profits, if any, arising from the

management of such forest or land shall be

paid to the said owner.

37. Expropriation of forests in certain

cases.–

(1) In any case under this Chapter in which the

State Government considers that, in lieu of

placing the forest or land under the control of

a Forest-Officer, the same should be acquired

for public purposes, the State Government

may proceed to acquire it in the manner

provided by the Land Acquisition Act, 1894 (1

of 1894).

(2) The owner of any forest or land comprised

in any notification under section 35 may, at

any time not less than three or more than

twelve years from the date thereof, require that

such forest or land shall be acquired for public

purposes, and the State Government shall

require such forest or land accordingly.”

31. Once a notification is issued by exercising the power under

sub-section (1) of Section 35, there is a complete prohibition on

breaking up or clearing forest lands for cultivation, the

pasturing of cattle or clearing of vegetation. There is a power to

assume management of such private forests by exercising the

power under Section 36. There is also a power to acquire such

private land. In fact, under sub-section (2) of Section 37, an

option is given to the owner of a forest land comprised in any

notification issued under Section 35 to require the State

Government to acquire such forest land. But the owner must

make a requisition at any time not less than three months from

the date of the notification or more than twelve years from the

said date.

32. Though, the 1927 Forest Act does not define the terms

‘forest’, ‘reserved forest’ and ‘protected forest’, a forest land does

not become a reserved forest unless a notification is issued

under Section 20 of the 1927 Forest Act. Similarly, a forest can

be declared as a protected forest only by publishing a

notification under Section 29 of the 1927 Forest Act.

CONCEPT OF FORESTS UNDER THE 1980 FOREST ACT

33. Now, we come to the 1980 Forest Act. This is a

complementary enactment, dealing with matters concerning

conservation of forests. In its statement of objects and reasons,

it is noted that deforestation is causing ecological imbalance

and is leading to environmental deterioration. It also notes that

a widespread concern has been caused due to deforestation

taking place on a large scale in our country.

The preamble of the 1980 Forest Act recites that:-

“An Act to provide for the conservation of

forests and for matters connected therewith

or ancillary or incidental thereto.”

(emphasis added)

It must be borne in mind that the 1927 Forest Act is a preConstitution legislation. The said legislation is confined to only

three categories of forests. The 1980 Forest Act has not repealed

the 1927 Forest Act. In a sense, the 1980 Forest Act

supplements the provisions of the 1927 Forest Act. During the

last four decades, there has been a realization of the adverse

impact of deforestation on the environment. The depletion of

the green cover was one of the consequences of deforestation.

Cutting down forests led to environmental degradation. Since

the forests absorb carbon dioxide, its destruction considerably

affects the ability of the nature to keep emissions out of the

atmosphere. This is one of the causes of global warming. The

law relating to the environment gradually evolved during the

last three decades in the light of the Constitutional provisions

and ever-increasing awareness and growing concern about

environmental degradation. Perhaps, to prevent large-scale

deforestation, the Legislature thought it fit to come out with

another legislation for protecting the forests.

34. The 1980 Forest Act came into force with effect from 25th

October 1980. It has only 5 Sections. The most important is

Section 2 which reads thus:

“2. Restriction on the dereservation 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 organization

not owned, managed or controlled by

Government;

(iv) that any forest land or any portion thereof

may be cleared of trees which have grown

naturally in that land or portion, for the

purpose of using it for reafforestation.]

[Explanation--For the purposes 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 wild life, namely, the establishment of

check-posts, fire lines, wireless communications

and construction of fencing, bridges and culverts,

dams waterholes, trench marks, boundary marks,

pipelines or other like purposes.]

[emphasis added]

35. Section 2 overrides all the laws applicable to a particular

State which will include not only the laws of that particular State

but also the relevant Central laws applicable to that particular

State. Clause (i) of Section 2 applies to a reserved forest within

the meaning of any law for the time being in force in that State.

Clauses (ii), (iii) and (iv) of Section 2 apply to “any forest land”.

As clause (i) specifically refers to a reserved forest within the

meaning of any law in force, it is obvious that clauses (ii), (iii)

and (iv) apply to any other forest, whether or not recognized or

declared as such under any law in force in that State. Hence,

clauses (ii), (iii) and (iv) of Section 2 apply to any forest land

which may not be necessarily a reserved forest or a protected

forest or a private forest governed by Chapter V under the 1927

Forest Act. Restrictions imposed by Section 2 (except clause (i)

thereof) apply to every forest land in respect of which no

declarations have been made either under the 1927 Forest Act

or any other law relating to the forests in force in that State.

36. Before we deal with the concept of a forest under the 1980

Forest Act, we must note here that this enactment does not

provide for an absolute prohibition on the use of any forest land

or a part thereof for any non-forest purposes. The State

Government or any other authority can always permit the use of

any forest land or any portion thereof for non-forest purposes

only with the prior approval of the Central Government. In a

sense, this enactment provides for permissive use of forest land

for non-forest activities with the prior approval of the Central

Government. Therefore, the owner of a private land which is a

forest within the meaning of Section 2 can convert its use for

non-forest purposes only after obtaining requisite permission of

the State Government or concerned competent authority.

However, the State Government or the competent authority, as

the case may be, cannot permit such use for non-forest activities

without obtaining prior approval from the Central Government.

This provision has been made to check further depletion of

already depleted green cover and to ensure that only such nonforest activities are permitted by the Central Government which

will not cause ecological imbalance leading to environmental

degradation. Considering the scheme of the 1980 Forest Act, the

title holder of a private land which is a forest within the meaning

of Section 2 is not divested of his right, title or interest in the

land. But there is an embargo on using his forest land for any

non-forest activity.

37. The object of the embargo on permitting non-forest use of

forest land without prior permission of the Central Government

is not to completely prevent the conduct of non-forest activities.

This provision enables the Central Government to regulate nonforest use of forest lands. While exercising the power to approve

non-forest use, the Central Government is under a mandate to

keep in mind the principles of sustainable development as

evolved by this Court including in its decision in the case of

Rajeev Suri8

. The embargo imposed by Section 2 ensures that

the development and use of a forest land for non-forest use is

governed by the principle of sustainable development. In a

sense, Section 2 promotes the development work on forest land

only to the extent it can be sustained while alleviating

environmental concerns. The power given to the Central

Government under Section 2 must be exercised by adopting

scientific and consistent yardsticks for applying the principles of

sustainable development.

38. Now, coming to the meaning of “forest” or “any forest land”

covered by Section 2, this Court in 1997 Godavaraman’s case1

has explained the legal position. Paragraphs 3 and 4 of the said

decision read thus:-

“3. 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.

4. 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 [(1987) 1 SCC 213], Rural Litigation and

Entitlement Kendra v. State of U.P. [1989 Supp (1)

SCC 504] and recently in the order dated 29-11-

1996 (Supreme Court Monitoring

Committee v. Mussoorie Dehradun Development

Authority [ WP (C) No 749 of 1995 decided on 29-

11-1996]). The earlier decision of this Court

in State of Bihar v. Banshi Ram Modi [(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.”

[emphasis added]

Thus, according to the aforesaid decision, Section 2 applies to

three categories of forests:

i. Statutorily recognized forests such as reserved or protected

forests to which clause (i) of Section 2 is applicable;

ii. The forests as understood in accordance with dictionary

sense and

iii. Any area recorded as a forest in Government records.

So far as the first category of forests is concerned, it poses

no difficulty as the forests under the said category covered by

Clause (i) of Section 2 are statutorily recognized forests.

39. It is the second category which poses some difficulty. As

the object of Section 2 of the 1980 Forest Act is to ensure that

only sustainable growth/development takes place on forest

lands. The need for giving a wider meaning to “forest” or “forest

land” contemplated by the 1980 Forest Act can be well

understood and justified. Moreover, the object of the 1980 Forest

Act is to prevent ecological imbalance resulting from

deforestation. The provision is aimed at protecting inter-

dependence between the right to development of an individual

and the right to the natural environment of the public at large.

The Legislature has used the words “any forest” in Clauses (ii) to

(iv) of Section 2 after referring to the reserved forests in Clause

(i) of Section 2. The intention is to bring all the forests, whether

covered by the 1927 Forest Act or not, within the sweep of the

1980 Forest Act. A dictionary always contains the meaning of

the words as they are understood by people for generations. It

contains the meaning of a word which is already legitimized.

Lexicographers include a word in the dictionary when it is used

by many in the same way. Therefore, forest as understood by its

dictionary meaning is covered by Section 2.

40. Hence, the question is what is the dictionary meaning of

the word ‘forest’. Most of the well-known dictionaries are more

or less consistent when it comes to the meaning of the word

‘forest’. The erstwhile Nagpur High Court in the case of Laxman

Ichharam v. The Divisional Forest Officer, Raigarh10 made an

attempt to define ‘forests’ by referring to dictionary meaning of

the word ‘forest’ in the Oxford English dictionary. Paragraph 13

of the said decision reads thus:

10 AIR 1953 Nagpur page 51

“13. The term ‘forest’ has not been defined anywhere in

the Forest Act. In the absence of such a definition the

word ‘forest’ must be taken in its ordinary dictionary

sense. The Shorter Oxford English Dictionary, Vol.I,

gives the following meaning to it:

‘1. An extensive tract of land covered with trees and

undergrowth, sometimes intermingled with

pasture……….

2. Law. A woodland district, usually belonging to the

king, set apart for hunting wild beasts and game

etc.,………

3. A wild uncultivated waste.”

The Cambridge dictionary defines a forest as under:

“a large area of land covered with trees and plants

usually larger than a wood, or the trees and plants

themselves.”

Merriam-Webster dictionary defines a forest as under:-

“1 : a dense growth of trees and underbrush

covering large tract

2 : a attract of wooded land in England formerly

owned by the sovereign and used for game

3 : something resembling a forest especially in

profusion or lushness.”

Therefore, when we consider the meaning of a forest or

forest land within the meaning of Clauses (ii) to (iv) of Section 2,

it has to be a large or extensive tract of land having a dense

growth of trees, thickets, mangroves etc. A small isolated plot of

land will not come within the ambit of Clauses (ii) to (iv) of

Section 2 merely because there are some trees or thickets

thereon, as opposed to extensive tract of land covered with dense

growth of trees and underbrush or plants resembling a forest in

profusion or lushness.

41. If a land is shown as a forest in Government records, it will

be governed by Section 2. A Government record is a record

maintained by its various departments. A Government record is

always made after following a certain process. Only the entries

made after following due process can be a part of any

Government record. Government records will include land or

revenue records, being statutory documents. For the same

reason, it will also include the record of the forest department.

After all, the forest department is the custodian of forests. It is

this department of the State which is under an obligation to

protect the forests for upholding the constitutional mandate.

Further, it is this department which identifies the forest lands

and maintains a record. Therefore, the record maintained by the

Forest Department of forest lands after duly identifying the forest

lands will necessarily be a Government record.

42. Whether a particular land is a ‘forest land’ within the

meaning of Clauses (ii) to (iv) of Section 2 of the 1980 Forest Act,

is a question which is required to be decided in the facts of each

case in the light of the aforesaid parameters.

43. Clause (i) of Section 2 mandates that no reserved or

declared forest should be divested of its status by the State

Government without prior approval of the Central Government.

The effect of Clause (i) is that the State Government cannot

exercise the power under Section 27 of the 1927 Forest Act of

declaring that a particular land will cease to be a reserved forest

unless there is prior approval from the Central Government. The

test for the grant of prior approval which we have laid down

above will also apply to such prior approval. In this background,

we proceed to discuss the issue which we have been called upon

to decide in this group of cases.

THE IMPACT OF THE NOTIFICATIONS/ORDERS ISSUED

UNDER PLPA

44. PLPA was published in the Government Gazette of Punjab

on 15th November 1900. PLPA was brought into force from that

very day. A photocopy of the proceedings of the Council of the

Lieutenant Governor of Punjab along with a photocopy of the

Gazette dated 15th November 1900 has been placed on record.

Reliance was placed on the address of Hon’ble Mr H.C.

Fanshawe while tabling the Bill of PLPA. His address reflects the

intention of the legislature. The proceedings record that:

“The Hon’ble Mr. Fanshawe moved for leave to

introduce a Bill to provide for the better

preservation and protection of certain portions

of the territories of the Punjab situate within or

adjacent to the Siwalik Mountain range or

affected or liable to be affected by the action of

streams and torrents, such as are commonly

called chos flowing through or from, or by the

deboisement of forests within, that range.”

Mr. Fanshawe in his address, further notes that prior to

1852, the waste-lands of Siwaliks were well protected by trees

and bushes and grass. He further stated that grass and trees

on the hillsides have been largely destroyed. He, therefore,

stated that legislative action is required to be taken to check the

evils in question. In the Preamble of PLPA, as originally enacted,

it is stated thus :

“Act to provide for the better preservation and

protection of certain portions of the territories

of the Punjab situate within or adjacent to the

Siwalik mountain range or affected or liable to

be affected by the deboisement of forests within

that range, or by the action of streams and

torrents, such as are commonly called chos flowing

through or from it.”

[emphasis added]

45. The Preamble specifically refers to the deboisement of the

forests. The dictionary meaning of the word “deboisement” is

“deforestation”. Thus, the object of PLPA is also to protect the

territories likely to be affected by deforestation. It is argued

that PLPA has been enacted essentially for the conservation of

sub-soil water or the prevention of erosion and it has nothing

to do with forests. Deforestation is one of the accepted and

recognized causes of erosion of soil. There is an article

published on the website of the World Wildlife Fund. The article

deals with deforestation and recognizes it as a cause of soil

erosion. The relevant portion of the said article reads thus:

“Deforestation

Without plant cover, erosion can occur and

sweep the land into rivers. The agricultural

plants that often replace the trees cannot hold

onto the soil and many of these plants, such

as coffee, cotton, palm oil, soybean and wheat,

can actually worsen soil erosion. And as land

loses its fertile soil, agricultural produces move

on, clear more forest and continue the cycle of soil

loss.”

(emphasis added)

Thus, one of the objects of PLPA undoubtedly appears to be the

protection and preservation of forests as it is one of the

measures for preventing erosion of soil. Significantly, Clause

‘timber’, ‘forest-produce’ and ‘cattle’ shall have the same

meaning which is assigned in Section 2 of the 1927 Forest Act.

46. The material Sections in PLPA are Sections 3 to 7.

Firstly, we are dealing with Section 3, which reads thus:

“3. Notification of areas— Whenever it

appears to the Provincial Government that it is

desirable to provide for the conservation of subsoil water or the prevention of erosion in any

area subject to erosion or likely to become liable

to erosion, such Government may by

notification make a direction accordingly.”

Section 3 enables the State Government to notify an area

subject to erosion or likely to become liable to erosion. When it

appears to the State Government that it is desirable to provide

for the conservation of sub-soil water or the prevention of

erosion in any area subject to erosion or likely to become liable

to erosion, the State Government may by a notification issue a

direction accordingly. By the inclusion of any area in a

notification under Section 3, per se, there are no constraints

or restrictions imposed on the use of the lands. There is

nothing in Section 3 to suggest that the power to issue

notification can be exercised necessarily in respect of forest

lands. The lands covered by the notification may also include

non-forest lands. However, in respect of the areas notified

under Section 3, the State Government can exercise the powers

under Section 5A. Section 5A reads thus:

“5-A. Power to require execution of works and

taking of measures.— In respect of areas notified

under section 3 generally or the whole or any part

of any such area, the Provincial Government may,

by general or special order, direct—

(a) the levelling, terracing, drainage and

embanking of fields;

(b) the construction of earth-works in fields and

ravines;

(d) the protection of land against the action of

wind or water; (e) the training of streams; and

(f) the execution of such other works and the

carrying out of such other measures as may, in

the opinion of the Provincial Government, be

necessary for carrying out the purposes of this

Act.”

Before the amendment made in the year 1926, Sections 4 and

5 empowered the State Government to pass general or special

orders providing for regulations, restrictions and prohibitions

as mentioned in the said sections either temporarily or

permanently. However, by the 1926 amendment, the word

‘permanently’ has been deleted. Sections 4 and 5 of PLPA, as

they stood before the 2019 Amendment Act, read thus:

“4. Power to regulate, restrict or prohibit, by

general or special order, within notified areas,

certain matters.-In respect of areas notified

under section 3 generally or the whole or any part

of any such area, the Provincial Government may,

by general or special order temporarily regulate,

restrict or prohibit-

(a)the clearing or breaking up or cultivating of

land not ordinarily under cultivation prior to

the publication of the notification under

section 3;

(b)the quarrying of stone or the burning of lime

at places where such stone or lime had not

ordinarily been so quarried or burnt prior to

the publication of the notification under

section 3;

(c)the cutting of trees or timber, or the

collection or removal or subjection to any

manufacturing process, otherwise than as

described in clause (b) of this sub-section of

any forest-produce other than grass, save for

bonafide domestic or agricultural purposes

of rightholder in such area;

(d)the setting on fire of trees, timber or forest

produce;

(e)the admission, herding, pasturing or retention

of sheep, goats or camels;

(f) the examination of forest-produce passing out

of any such area; and

(g)the granting of permits to the inhabitants of

towns and villages situate within the limits or in

the vicinity of any such area, to take any tree,

timber or forest produce for their own use

therefrom, or to pasture sheep, goats or camels

or to cultivate or erect buildings therein and the

production and return of such permits by such

persons.

5. Power, in certain cases to regulate, restrict

or prohibit, by special order within notified

areas, certain further matters. - In respect of

any specified village or villages, or part or parts

thereof, comprised within the limits of any area

notified under section 3, the Provincial

Government may, by special order, temporarily

regulate, restrict or prohibit-

(a) the cultivating of any land ordinarily under

cultivation prior to the publication of the

notification under section 3;

(b) the quarrying of any stone or the burning of

any lime at places where such stone or lime

had ordinarily been so quarried or burnt prior

to the publication of the notification under

section 3;

or removal or subjection to any manufacturing

process, otherwise than as described in clause

(b) of this sub-section of any forest-produce for

any purposes; and

(d) the admission, herding, pasturing or retention

of cattle generally other than sheep, goats and

camels or of any class or description of such

cattle.”

Section 6 lays down the procedural requirement of publishing

notifications/orders issued under Sections 4, 5 or 5A in the

official gazette after recording the satisfaction of the State

Government, after due inquiry, that the directions contained

in the orders are necessary for the purposes of giving effect to

the provisions of PLPA. Section 7 enables the persons affected

by special orders under Sections 4, 5 and 5A to seek

compensation.

47. Though in this group of cases, wider submissions have

been canvassed, we find that the entire challenge concerns

only the three separate Government orders dated 18th August

1992 issued under Section 4 of PLPA in relation to the specific

lands in the said three villages. There is no challenge in any of

the Writ Petitions to any order issued under Section 5 of PLPA.

Even the NGT in the impugned orders has relied upon only the

special orders under Section 4. Therefore, we are confining our

discussion to the question whether the lands covered by

special orders issued under Section 4 of PLPA are forest lands

within the meaning of the 1980 Forest Act. When an order is

issued under Section 4 in respect of a specifically identified

area which is a part of a larger area notified under Section 3

for imposing any of the specific prohibitions or restrictions

provided in Section 4, such an order can be termed as a special

order under Section 4. Section 3 of PLPA contemplates the

issuance of a notification in respect of a larger area when it is

desirable to provide for the conservation of sub-soil water or

prevention of erosion. When the State Government is satisfied

that deforestation of a forest area forming part of a larger area

notified under Section 3 is likely to lead to erosion of soil, the

power under Section 4 can be exercised. Various clauses of

sub-section (4) refer to trees, timber, forest produce and cattle.

Clause (c) of Section 2 of PLPA specifically provides that the

said words shall have the meaning severally assigned to these

expressions in Section 2 of the 1927 Forest Act. Clause (a) of

Section 4 empowers the State Government to restrict or

prohibit clearing or breaking up or cultivating of land not

ordinarily under cultivation prior to the publication of the

notification under Section 3. In the context of Clause (a) of

Section 4, we may note here that Clause (a) of sub-section (1)

of Section 26 read with Section 5 of the 1927 Forest Act

prohibits clearing of a reserved forest for cultivation. Subsection (1) of Section 35 of the 1927 Forest Act empowers the

State Government to prohibit breaking up or clearing private

forest land, pasturing of cattle or clearing vegetation on forest

lands not vested in the Government. Such prohibition can be

imposed in respect of privately owned forest lands for various

reasons set out in the provision. One of the specified reasons

is the protection of lands from erosion. Even clause (h) of subsection (1) of Section 26 of the 1927 Forest Act prohibits

breaking up or clearing any land forming a part of a reserved

forest for cultivation or for any other purpose. Clause (g) of

Section 4 of PLPA empowers the State Government to prohibit

or prevent quarrying of stones or burning of lime at places

where such stones or lime had not ordinarily been so quarried

or burnt prior to the notification issued under Section 3.

Similar are the restrictions imposed by clause (g) of subsection (1) of Section 26 of the 1927 Forest Act in respect of

the lands forming part of a reserved forest. clause (c) of Section

4 of PLPA which empowers the Government to impose

restrictions on the cutting of trees or timber is also a pointer

which indicates that a special order under Section 4 has to be

necessarily in respect of a forest land. A similar restriction is

applicable to a reserved forest as provided in clause (f) of subsection (1) of Section 26 of the 1927 Forest Act. Clause (d) of

Section 4 of PLPA empowers the State Government to prohibit

the setting on fire of trees, timber or forest produce. Such

restriction is also found in clauses (b) and (f) of sub-section (1)

of Section 26 in respect of a reserved forest. Clause (f) of

Section 4 empowers the State Government to regulate, restrict

or prohibit the admission, herding, pasturing or retention of

sheep, goats or camels. Clause (d) of sub-section (1) of Section

26 of the 1927 Forest Act imposes a similar restriction on the

lands forming a part of a reserved forest. Clauses (f) and (g) of

Section 4 of PLPA refer to forest produce generated out of any

such area notified under Section 4. As noted earlier, PLPA

incorporates the definition of “forest produce” in the 1927

Forest Act in PLPA by reference. Sub-Section (4) of Section 2 of

the 1927 Forest Act defines “forest produce” which reads thus:

“2(4) "forest-produce" includes -

(a) the following whether found in, or brought from,

a forest or not, that is to say:-

timber, charcoal, caoutchouc, catechu, wood-oil,

resin, natural varnish, bark, lac, mahua flowers,

mahua seeds, kuth and myrabolams, and

(b) the following when found in, or brought from a

forest, that is to say –

(i) trees and leaves, flowers and fruits, and all other

parts or produce not hereinbefore mentioned, of

trees,

(ii) plants not being trees (including grass, creepers,

reeds and moss), and all parts or produce of such

plants,

(iii) wild animals and skins, tusks, horns, bones, silk,

cocoons, honey and wax, and all other parts or

produce of animals, and

(iv) peat, surface soil, rock and minerals (including

lime-stone, laterite, mineral oils, and all products of

mines or quarries).”

Thus, it appears to us that various restrictions, regulations

and prohibitions in different clauses in Section 4 of PLPA can be

invoked necessarily in respect of forest lands. Whereas, Section

3 of PLPA contemplates the issuance of a general notification in

respect of any area subject to erosion or likely to become liable

to erosion when it appears to the State Government that it is

desirable to provide for the conservation of sub-soil water or the

prevention of erosion. As noted earlier, one of the objectives of

PLPA is to prevent erosion of land which may be caused due to

deforestation. When the State Government is satisfied that as a

result of deforestation or impending deforestation, erosion of a

particular area out of the area notified under Section 3 is likely

to take place, the State Government may exercise the power

under Section 4 by issuing a special order. The reason is that

the measures provided in Section 4 are intended to prevent

deforestation of a forest area. Section 3 of PLPA contemplates

the issuance of a notification in respect of a larger area when it

is desirable to provide for the conservation of sub-soil water or

prevention of erosion. When the State Government is satisfied

that deforestation of a forest area forming part of a larger area

notified under Section 3 is likely to lead to erosion of soil, the

power under Section 4 can be exercised. Therefore, it follows that

the specific land in respect of which a special order under section

4 of PLPA has been issued will have all the trappings of a forest

governed by clauses (ii) to (iv) of Section 2 of the 1980 Forest Act.

Therefore, in respect of the lands covered by special orders under

Section 4 of PLPA, the State Government or authorities of the

State can permit diversion to non-forest use only after prior

approval of the Central Government is granted in accordance

with Section 2 of the 1980 Forest Act.

48. Clause (a) of Section 5 of PLPA provides for restricting or

prohibiting the cultivation of any land ordinarily under

cultivation prior to the publication of the notification under

Section 3. However, the power under Section 5 to restrict or

prohibit can be exercised in a case where prior to the publication

of the notification under Section 3, quarrying of any stone or the

burning of any lime was being made. Thus, there is a marked

difference between the language used in Section 4 and that in

Section 5 of PLPA. However, as noted earlier, it is not necessary

for us to decide the issue whether a land forming a part of a

special notification under Section 5 of PLPA ipso facto becomes

a forest under the 1980 Forest Act.

THE EFFECT OF THE STAND TAKEN BY THE STATE

GOVERNMENT IN PLEADINGS / AFFIDAVITS AND

CORRESPONDENCE.

49. At this stage, it is relevant to note that on 08th December

1996 an affidavit was filed by Mr. Banarsi Dass, Principal Chief

Conservator of Forests of the State of Haryana in Civil Writ

Petition No.171 of 1996. The said civil writ petition was dealt

with by this Court in the 1997 Godavarman’s case1 in its

judgment dated 12th December 1996. The stand taken in the

said affidavit was that the State was treating the lands notified

under Sections 4 and 5 of PLPA as forests. It must be noted

here that a similar stand was taken by the State Government

even in the subsequent correspondence/ affidavits/pleadings.

In the letter dated 21st December 1992 addressed by the

Deputy Inspector General of Forests of the Government of India

to the Principal Chief Conservator of Forests, the Government

of Haryana, it was stated that the area notified under Sections

4 and 5 of the PLPA has been recorded as forest in the

Government record. As stated in the said letter, this factual

position has been noted on the basis of what is stated in the

letter dated 09th December 1992 addressed by the Principal

Chief Conservator of Forests of the Government of Haryana.

Record of Discussions in a meeting of Principal Chief

Conservator of Forests held under the Chairmanship of

Director General of Forests and Special Secretary (DGF&SS) of

the Government of India on 25th August 2014 is placed on

record along with a note submitted by Shri A.D.N. Rao, the

learned counsel. The meeting was attended by various officers

of the Ministry of Environment, Forests and Climate Change

as well as the Principal Chief Conservator of Forests of

Government of Haryana - Shri C.R. Jojriwal. It is noted in

paragraph 2 that subject to the approval of this Court various

areas stated therein shall be mandatorily treated as a ‘forest’

for the purposes of the 1980 Forest Act. The lands which were

to be mandatorily treated as forests were divided into two

categories. Category (A) was of Recorded Forest Areas and

Category (B) of Forests by Dictionary meaning. In clause (c) of

Category (A), it is provided that the areas covered by the

notifications issued under Sections 4 and 5 of PLPA shall be

treated as forests for the purposes of the 1980 Forest Act. The

stand of the Government of Haryana is also reflected in the

decision of the Division Bench of Punjab and Haryana High

Court in the case of Vijay Bansal7

. The said decision, rendered

on 15th May 2009, proceeded to hold that the areas forming

parts of notification under Section 3 of PLPA in respect of

which restrictions have been imposed under Sections 4 and 5

of PLPA are to be treated as forest lands for the purposes of

1980 Forest Act. An application being C.M. No.12170 of 2009

was filed in the said case by the State of Haryana seeking

modification of the judgment. Prayer 5 of the said application

is relevant which is reproduced for convenience.

“(5) It has been accordingly prayed that only those

lands where clearing, breaking-up or cultivation

has been prohibited by a special order notified

under Section 4(a) or 5(a) of the PLPA, 1900 may

be treated as ‘forest lands’ as has been so held by

the Hon’ble Supreme Court in M.C. Mehta’s case

(supra) and not those lands in respect whereto

general restrictions have been imposed under

Section 4(c) and (d) or Section 5(c) and (d) of the

PLPA, 1900.”

In the said application, there is a specific pleading that the

lands covered by the notifications under Sections 4 and 5 of

PLPA were treated as forest lands.

50. The Division Bench of the Punjab and Haryana High

Court by the order dated 04th December 2009 accepted the

aforesaid prayer and held that those lands which are covered

by notifications imposing restrictions/prohibitions under

clause (a) of Section 4 and clause (a) of Section 5 of PLPA are

declared as ‘forest lands’ for the purposes of 1980 Forest Act.

Thus, this was the categorical stand taken by the State

Government in the pending proceedings on oath.

51. We may note here that the statements made on behalf of

the State Government in the letters, affidavits and pleadings

cannot be conclusive to decide the issue of the status of the

lands covered by a special notification under Section 4 of PLPA.

The finding on the issue cannot be based only on the stand taken

earlier by the State Government in the correspondence and

affidavits. Independently of the stand taken as aforesaid, on a

careful analysis of Section 4 of PLPA, we have come to a

conclusion that the lands covered by the special orders under

Section 4 of PLPA have all the trappings of a forest within the

meaning of Section 2 of the 1980 Forest Act. Therefore, we have

held that the lands covered by the special notification under

Section 4 will be forest lands within the meaning of Section 2 of

the 1980 Forest Act.

EARLIER DECISIONS OF THIS COURT

52. The 1997 Godavarman’s case does not even refer to the

legal effect of the orders under Sections 4 and 5 of PLPA. Even

the 2008 Godavarman’s case does not consider the aforesaid

issue. In paragraph 21, this Court directed that mining activity

in the areas covered by orders under Section 4 and 5 of PLPA

shall be prohibited on the ground that the said lands were

recorded as forests in government records. The 1st M.C. Mehta’s

case was decided by a Bench of two Hon’ble Judges. As can be

seen from paragraph 79 of the said decision, the issue of the

legal effect of the orders under Sections 4 and 5 of PLPA very

much arose before the Bench in the context of the applicability

of Section 2 of the 1980 Forest Act. However, in paragraph 82,

the Bench specifically observed that it is not necessary to decide

the legal effect of the orders under Sections 4 and 5 of PLPA.

This Court relied upon only the affidavits filed on behalf of the

State Government including the affidavit of Shri Banarasi Dass.

This Court observed that the State Government cannot take a

somersault and take a stand contrary to what is stated in their

earlier affidavits. Thus, the issue which we have decided about

the legal effect of Section 4 of PLPA was not decided by this Court

in the said case. The 3rd M.C. Mehta was decided by a Bench of

two Hon’ble Judges. From the first two paragraphs of the

decision, it is apparent that this Court dealt with an application

made by M/s. R. Kant & Co. The issue was about the

contravention of the order dated 18th August 1992 under Section

4 in respect of certain lands in village Anangpur. The Bench

dealt with contention that the land notified under the said order

dated 18th August 1992 was not a forest. Even in this judgment,

we find that a closer examination was not made of the scheme

of Section 4 of PLPA and its legal effect vis-à-vis Section 2 of the

1980 Forest Act. Even the decision of the Punjab and Haryana

High Court in the case of Vijay Bansal7 does not deal with the

issue of the legal effect of orders under Sections 4 and 5 of PLPA

Act.

53. The decision of a Bench of two Hon’ble Judges of this Court

in the case of B.S. Sandhu5 dealt with the order dated 12th

October 2004 passed by a Division Bench of Punjab and

Haryana High Court. The appellant before this Court Mr.B.S.

Sandhu had contended before the High Court that the lands in

village Karoran in District Ropar in possession of Forest Hill Golf

and Country Club, of which he was the proprietor, were not

forest lands and the lands were either agricultural lands or

uncultivable waste lands. The High Court did not accept the said

contention and held that Village Karoran has been notified

under Section 3 of PLPA and is regulated by prohibitory

directions under Sections 4 and 5 of PLPA. Therefore, it was

held that the lands in the entire village were forests within the

meaning of the 1980 Forest Act. In paragraph 18 of the said

decision, this Court held thus:

“18. It will be clear from the language of Section

3 of the PLP Act, 1900 extracted above that for

the better preservation and protection of any

local area, situated within or adjacent to

Shivalik mountain range which is liable to be

affected by deboisement of forests in that range

or by the action of “cho”, such Government may

by notification make a direction accordingly.

The expression “local area” has not been defined

in the PLP Act, 1900 and may include not only

“forest land” but also other land. In Section 4 of

the PLP Act, 1900 extracted above, the local

Government was empowered by general or

special order, temporarily or permanently to

regulate, restrict or prohibit various activities

mentioned in clauses (a), (b), (c), (d), (e), (f) and

(g) thereof. A reading of these clauses would

show that activities such as cultivation,

pasturing of sheep and goats and erection of

buildings by the inhabitants of towns and

villages situated within the limits of the area

notified under Section 3 can be regulated,

restricted or prohibited by a general or special

order of the local Government. All these

activities are not normally carried on in forests.

Similarly, under Section 5 of the PLP Act, 1900,

the local Government was empowered by

special order, temporarily or permanently to

regulate, restrict or prohibit the cultivating of

any land or to admit, herd, pasture or retain

cattle generally other than sheep and goats.

These activities are also not normally carried on

in forests.”

In paragraph 19 this Court observed thus :

“19. In our view, therefore, land which is

notified under Section 3 of the PLP Act, 1900

and regulated by orders of the local Government

under Sections 4 and 5 of the PLP Act, 1900

may or may not be “forest land”. Therefore, the

conclusion of the High Court in the impugned

order that the entire land of Village Karoran,

District Ropar, which has been notified under

Section 3 of the PLP Act, 1900 and is regulated

by the prohibitory directions notified under

Sections 4 and 5 thereof is “forest land” is not

at all correct in law. The basis for inclusion of

the entire area in Village Karoran, District

Ropar, in the list of forest areas in the State of

Punjab pursuant to the order dated 12-12-1996

of this Court in T.N. Godavarman

Thirumulpad v. Union of India [T.N.

Godavarman Thirumulpad v. Union of India,

(1997) 2 SCC 267] is legally not correct.

Similarly, the conclusion of the High Court in

the impugned order [Court on Its Own

Motion v. State of Punjab, (2004) 4 RCR (Civil)

619 : (2005) 2 ICC 16 (P&H)] that the entire land

in Village Karoran, District Ropar, having been

notified under Section 3 of the PLP Act, 1900

and being under the regulatory regime of

Sections 4 and 5 of the said Act is “forest land”

is also legally not correct.”

What is material are the observations made in paragraph 23 of

the said decision which read thus:

“23. We have also examined the two decisions

of this Court in the first and second

cases of M.C. Mehta [M.C. Mehta v. Union of

India, (2004) 12 SCC 118] , [M.C. Mehta v. Union

of India, (2008) 17 SCC 294] cited on behalf of

the State of Punjab and we find that the

aforesaid decisions have been rendered in the

case of Aravalli Hills in the State of Haryana

and it was held therein that as the State Forest

Department had been treating and showing the

areas as “forest”, in fact and in law, the area was

forest and non-forest activities could not be

allowed in such areas without the prior

permission of the Central Government under

Section 2 of the Forest (Conservation) Act, 1980.

In these two decisions, this Court has not

enquired into the basis of inclusion of the areas

in forest by the State Forest Department nor

has this Court considered as to whether a

land becomes “forest land” by mere

inclusion of the same under the notification

under Section 3 of the PLP Act, 1900. In the

present case, on the other hand, the State

Government has in its affidavit stated before

this Court that the basis of inclusion of the

entire land of Village Karoran, District Ropar, in

forest areas in the records of the Forest

Department of Government of Punjab was that

the land was closed under the PLP Act, 1900

and we have found this basis as not correct in

law.”

54. The Bench has not gone into the scheme of the 1927

Forest Act and the object sought to be achieved by PLPA. Thus,

the entire emphasis of the appellant in B.S. Sandhu’s case5

was that mere inclusion of an area in the notification under

Section 3 of PLPA will not ipso facto lead to the conclusion that

the area is a forest for the purposes of 1980 Forest Act.

55. Thus, essentially in the case of B.S. Sandhu5

, this Court

dealt with a notification under Section 3 of PLPA which was

applicable to the entire village in question. Though Sections 4

and 5 are referred in the said decision, it is not clear whether

there was a special order issued under Sections 4 in respect of

the lands of Mr. B.S. Sandhu. Moreover, the said decision

overlooks that one of the objects of PLPA was to prevent

deforestation as the same may result in erosion of soil. The

Court did not notice that the restrictions provided in Section 4

show that the same can be applied only to the lands having

trappings of a forest within the meaning of the 1980 Forest Act.

The decision in the case of B.S. Sandhu5

, with great respect,

does not take note of these crucial legal and factual aspects.

THE OTHER ISSUES

56. We may note here that the petitioners in Writ Petition

(Civil) No.1031 of 2021 represented by the learned senior

counsel Shri Vikas Singh are claiming that they are residents

of Villages Anangpur, Mewla Maharajpur and Ankhir covered

by three separate orders issued on 18th August 1992 under

Section 4. A perusal of the said orders on record of Civil Appeal

No.10294 of 2013 will show that the orders are special orders

relating to only certain specific lands mentioned therein in the

schedules thereto. The lands in the schedule are specific lands

described by reference to Killa or other relevant numbers. Even

the area of the lands covered has been incorporated. The

notifications do not relate to the entire village. The same are in

respect of specific lands in the said three villages. By placing

reliance on the figures quoted in the additional affidavit of the

State of Haryana and by producing certain maps, Shri Vikas

Singh, the learned senior counsel tried to contend that if the

contentions of some of the intervenors are accepted, the entire

districts of Gurugram and Faridabad will be forests within the

meaning of Section 2 of 1980 Forest Act. On this aspect, what

is relevant is the chart incorporated by the State Government

in paragraph 50 of the additional affidavit. We are reproducing

the chart for a ready reference:

AREAS NOTIFIED UNDER PLP ACT, 1900 (AREA IN HECTARE)

N. District

Geographical

Area

Notified area under PLP Act, 1900

U/S 4

and/or

5 (By

special

order)

U/S 4 (By

General

order)

U/S

Section 3

Total

Notified

area

% of

column 7

with total

Geographical

Area of

District

1 2 3 4 5 6 7 8

1 Panchkula 89800 4310 70476 89800 89800 100.00%

2 Ambala 157400 1613 8562 157400 157400 100.00%

3 Yamunanagar 176800 2498 72693 176800 176800 100.00%

4 Kurushetra 153000 8 0 8 8 0.01%

5 Kaithal 231700 0 0 0 0 0.00%

6 Karnal 252000 0 0 0 0 0.00%

7 Panipat 126800 0 0 0 0 0.00%

8 Sonipat 212200 1867 0 1867 1867 0.88%

9 Rohtak 174500 221 0 221 221 0.13%

10 Jhajjar 183400 210 0 210 210 0.11%

11 Gurugram 125800 6821 125800 125800 125800 100.00%

12 Faridabad 74100 5611 14610 74100 74100 100.00%

13 Palwal 135900 25 0 135900 135900 100.00%

14 Mewat 150700 6432 130677 150700 150700 100.00%

15 Mahendergarh 189900 1089 189900 189900 189900 100.00%

16 Rewari 159400 971 159400 159400 159400 100.00%

17 Hisar 398300 0 0 0 0 0.00%

18 Fatehabad 253800 0 0 0 0 0.00%

19 Sirsa 427700 0 0 0 0 0.00%

20 Bhiwani 328300 62 221299 328300 328300 100.00%

21 Charkhi Dadri 149500 0 92669 149500 149500 100.00%

22 Jind 270200 0 0 0 0 0.00%

Total (State) 4421200 31738 1086086 1739907 1739907 39.35%

57. Thus, the special orders under Sections 4 and 5 in

respect of 22 districts of Haryana including the districts of

Gurugram and Faridabad cover only an area of 31,738 hectare,

out of the total area of 44,21,200 hectares. In at least 8

districts, not a single land is governed by special orders under

Sections 4 and 5. Hence, only about 7.1% of the total lands in

22 districts are covered by special orders issued under

Sections 4 and 5 of PLPA. Going by these figures of the lands

covered by the special orders under Section 4 and 5, the

percentage of the lands covered by special orders under

Section 4 must be insignificant as compared to the total area

of the districts. Thus, the picture tried to be projected by the

petitioners and the State Government is completely misleading

and fallacious.

58. In this group of appeals, we are concerned only with the

three separate orders dated 18th August 1992 in relation to the

said three villages. A submission was canvassed that there was

no notification issued under Section 3 of PLPA covering the

said three villages. It is contended that the requisite procedure

was not followed. We may note here that it is too late in the day

to challenge the said orders after the lapse of more than 20

years. The ground of the gross delay is itself sufficient to

negative the said challenge. The State Government cannot be

called upon to show compliance with procedural aspects for

the first time after lapse of more than 20 years. Therefore, it

will not be appropriate to entertain a challenge to the said

orders on the ground of non-compliance with the procedural

provisions of Sections 6 and 7 after lapse of more than 20

years. Reliance was placed on a notification dated 17th October

1989 issued by the State Government under Section 5 of the

Punjab Land Revenue Act, 1887. By the said notification, the

State Government excluded certain areas from the limits of

Ballabhgarh Tehsil in Faridabad District. A new Tehsil was

formed of the said excluded areas known as Faridabad Tehsil.

However, on 10th April 1992, a notification was issued under

Section 3 of PLPA in respect of the entire Tehsil of Ballabhgarh.

The three special orders dated 18th August 1992 are in respect

of specifically described lands in the said three villages in

Tehsil of Ballabhgarh. Therefore, apart from the gross delay, it

cannot be accepted that the special orders under Section 4

dated 18th August 1992 were not preceded by a general order

under Section 3 of PLPA in respect of Tehsil Ballabhgarh. The

three special orders specifically refer to a due inquiry made by

the State Government for coming to the conclusion that

prohibitions contained in the said orders are necessary for the

purpose of giving effect to the provisions of PLPA.

59. Another argument canvassed was that the said three

villages are covered by controlled areas declared under the

1971 Act as well as a final development plan. In view of the

language used by Section 2 of the 1980 Forest Act, the said

provision overrides all other laws applicable to the State of

Haryana including the Central laws. Moreover, once it is found

that the lands covered by the said three orders dated 18th

August 1992 are forest lands covered by clauses (ii) to (iv) of

Section 2 of the 1980 Forest Act, its status as forest lands

cannot be altered unless Section 2 is followed.

60. A vague attempt was made to contend that firstly the

lands covered by special orders under Section 4 can be treated

as forests within the meaning of the 1980 Forest Act only from

the date of the respective orders and that it will continue to be

a forest for a limited duration for which the said special orders

are in force. Both the arguments do not commend us at all.

An occasion for passing special orders under Section 4 arises

when the lands in respect of which special orders are sought

to be issued, are forest lands. It is true that, to such lands,

Section 2 of the 1980 Forest Act will apply from 25th October

1980 when the same was brought into force. Once a land is

covered by the sweep of Section 2 of the 1980 Forest Act,

whether the special orders under Section 4 continue to be in

force or not, the lands covered by the said notifications will

continue to fall in the category of forests covered by Section 2

of the 1980 Forest Act.

THE 2019 AMENDMENT ACT

61. The State Government as well as the appellants have

relied upon the 2019 Amendment Act. Our attention was also

invited to the order dated 01st March 2019 in Writ Petition

(Civil) No.4677 of 1985 (M.C. Mehta v. Union of India & Ors.).

By the said order, this Court directed that the 2019

Amendment Act shall not be acted upon without permission of

this Court. I.A.No.93600/2021 has been filed by the State of

Haryana in Writ Petition (Civil) No.4677 of 1985 seeking

permission to implement the provisions of 2019 Amendment

Act. In one of our orders passed in this group of appeals, we

had observed that the said prayer can be considered in this

group itself.

62. By the 2019 Amendment Act, Section 3 has been

substituted from the date of publication of the Amendment Act

in the Government Gazette. Substituted Section 3

contemplates the State Government issuing a preliminary

notification before issuing a final notification under Section 3.

It also provides for inviting objections to the preliminary

notification and giving a hearing to the objectors. Section 3A

was added which provides that the provisions of PLPA shall not

apply, amongst others, to the lands included in the final

development plans or any other town improvement plans or

schemes published under the provisions of the said Act of

1971, the Haryana Development and Regulation of Urban

Areas Act, 1975 etc. A proviso has been added to Section 4

laying down that the period of validity of any order issued

under Section 4 shall not exceed the period of validity of the

corresponding notification under Section 3. Section 23 was

incorporated in the principal Act by the 2019 Amendment Act.

It provides that the orders and notifications issued under PLPA

shall be deemed to have been amended so as to exclude the

categories of land covered under Section 3A with effect from

the date of issuance or publication of such orders or

notification. Moreover, clause (c) of sub-section (2) of Section

23 provides that after the expiry of the period stated in such

orders or notifications, the regulations, restrictions or

prohibitions imposed shall cease to exist. Another important

feature of the 2019 Amendment Act is that Section 4A has been

incorporated. It provides that in respect of the areas notified

under Section 3, the State Government may, in the whole or

any part of such areas, by general order temporarily regulate,

restrict or prohibit the cutting of trees and timber. Sub-section

(3) of Section 4A provides that all subsisting general orders

issued under Section 4 prior to the date of commencement of

2019 Amendment Act shall be deemed to have been issued

under Section 4A. A note appended to Section 4A clarifies that

all the subsisting general orders issued under Section 4 or

notifications made thereunder prior to the publication of the

2019 Amendment Act shall be solely for the purpose of

temporarily regulating, restricting or prohibiting felling of trees

and not for regulating any other activity or imposing

restrictions or change in the permissible land use for such

area. Sub-section (2) of Section 1 of 2019 Amendment Act is

of some importance. It lays down that the said Amendment Act

shall be deemed to have come into force from 01st November

1966 except unless expressly provided otherwise.

63. In this group of petitions, we are concerned with three

special orders under Section 4 issued on 18th August 1992 in

respect of the said three villages. The effect of the said orders

is that the lands referred to therein are forest lands within the

meaning of Section 2 of the 1980 Forest Act. Even if such

orders are cancelled or amended or rescinded or their duration

comes to an end, the status of the lands covered by the same

as forest lands governed by Section 2 of the 1980 Forest Act

cannot be altered without following the due process provided

therein. Once a land is found to be a ‘forest’ within the

meaning of the 1980 Forest Act, its user for non-forest

purposes will be always governed by Section 2 of the 1980

Forest Act. Secondly, clause (i) of Section 2 provides that even

in the case of a reserved forest under the 1927 Forest Act, the

State Government cannot pass an order declaring that the

same shall cease to be a reserved forest, without the prior

approval of the Central Government. Thirdly, Section 2 starts

with a non obstante clause which overrides anything contained

in any other law for the time being in force in a State which

will include all State and Central legislations applicable to the

State. Therefore, prima facie, the 2019 Amendment Act enacted

by the State Legislature would be repugnant to and violative of

Section 2 of the 1980 Forest Act, if construed otherwise. Hence,

whether the 2019 Amendment Act is given effect or not, it will

not change the status of the lands covered by the special orders

under Section 4 of PLPA as the said lands possess all the

trappings of a forest with effect from 25th October 1980 within

the meaning of the 1980 Forest Act. Therefore, it is not

necessary for us in these petitions to deal with the issue

whether the order dated 01st March 2019 passed in Writ

Petition (Civil) No.4677 of 1985 should be modified. The said

prayer will have to be considered by the Bench dealing with the

said writ petition.

CONCLUSIONS AND OPERATIVE PART

64. Thus, we hold that the lands covered by the special orders

issued under Section 4 of PLPA have all the trappings of forest

lands within the meaning of Section 2 of the 1980 Forest Act

and, therefore, the State Government or competent authority

cannot permit its use for non-forest activities without the prior

approval of the Central Government with effect from 25th

October 1980. Prior permission of the Central Government is

the quintessence to allow any change of user of forest or so to

say deemed forest land. We may add here that even during the

subsistence of the special orders under Section 4 of PLPA, with

the approval of the Central Government, the State or a

competent authority can grant permission for non-forest use.

If such non-forest use is permitted in accordance with Section

2 of the 1980 Forest Act, to that extent, the restrictions

imposed by the special orders under Section 4 of PLPA will not

apply in view of the language used in the opening part of

Section 2 of the 1980 Forest Act. We also clarify that only

because there is a notification issued under Section 3 of PLPA,

the land which is subject matter of such notification, will not

ipso facto become a forest land within the meaning of the 1980

Forest Act.

65. Therefore, the lands covered by the special orders dated

18th August 1992 issued under Section 4 of PLPA will be

governed by the orders passed by this Court in the Petition for

Special Leave to Appeal (Civil) Nos.7220-7221 of 2017. Hence,

all the concerned authorities shall take action to remove the

remaining illegal structures standing on land covered by the

special orders and used for non-forest activities on the said

lands erected after 25th October 1980, without prior approval

of the Central Government, and further to restore status quo

ante including to undertake reforestation/afforestation

programmes in right earnest. As far as the lands covered by

special orders under Section 5 are concerned, we are not

making any adjudication. Therefore, the authorities will have

to decide the status of the lands covered by the said orders

under Section 5 on case to case basis.

66. To avoid any prejudice to the affected persons, we direct

that before the action of removal of the illegal structures

and/or action of stopping non-forest activities is taken in

respect of the lands covered by the special orders dated 18th

August 1992 issued under Section 4 of PLPA, the concerned

competent authority shall afford an opportunity of being heard

to the affected persons and conclude such proceedings finally

not later than three months from today and submit compliance

report in that regard within the same time.

67. Writ Petition (Civil) Nos. 1008 and 1031 of 2021 stand

disposed of in above terms. Civil Appeal Nos. 10294 of 2013,

8454 of 2014, 8173 of 2016 and 11000 of 2013 also stand

disposed of in above terms and the orders impugned passed by

the NGT stand modified accordingly.

68. As regards Writ Petition (Civil) No.1320 of 2021, the same

will be governed by the directions issued in Petitions for Special

Leave to Appeal (Civil) No.7220-7221 of 2017 for rehabilitation

of the eligible occupants. The petitioners can always move the

concerned authority for that purpose. Writ Petition (C) No.1320

of 2021 be disposed of accordingly.

69. There will be no order as to costs.

……..…………………J.

(A. M. KHANWILKAR)

……..…………………J.

(ABHAY S. OKA)

……..…………………J.

(C. T. RAVIKUMAR)

New Delhi;

July 21, 2022.

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