NARINDER SINGH & ORS. vs DIVESH BHUTANI & ORS

NARINDER SINGH & ORS. vs DIVESH BHUTANI & ORS


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO. 10294 OF 2013
NARINDER SINGH & ORS. …APPELLANT(S)
 v.
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
2
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
3
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
4
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
5
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
6
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
7
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
8
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
9
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
10
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.
11
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
12
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
1
(1997) 2 SCC 267
2
(2008) 16 SCC 401
13
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
3
(2004) 12 SCC 118
4
(2008) 17 SCC 294
5
(2014) 12 SCC 172
6
(2018) 18 SCC 397
14
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
15
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
16
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.
17
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
18
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
19
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
20
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.
21
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
22
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.
23
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
24
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
8
(2021) SCC online SC 7
25
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
26
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
9
(2021) SCC OnLine SC 1243
27
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
28
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
29
leaves any fire burning, in such manner as to
endanger such a forest;
 or who, in a reserved forest–
(c) kindles, keeps or carries any fire except at
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-
30
(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)
31
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
32
reasonably convenient, for the due exercise of
the right suspended in the portion so closed;
or
(c) prohibit, from a date fixed as aforesaid,
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;
(c) contrary to any prohibition under section
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;
33
(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
34
(a) the breaking up or clearing of land for
cultivation;
(b) the pasturing of cattle; or
(c) the firing or clearing of the vegetation;
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
35
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.”
36
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
37
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
38
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;
39
(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
40
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
41
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
42
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
43
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
44
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-
45
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
46
“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
47
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.
48
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:
49
“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
50
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
(c) of Section 2 of PLPA provides that the expressions, ‘tree’,
‘timber’, ‘forest-produce’ and ‘cattle’ shall have the same
meaning which is assigned in Section 2 of the 1927 Forest Act.
51
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:
52
“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;
(c) the provision of drains for storm water;
(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
53
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;
54
(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;
(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 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
55
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
56
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.
57
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
58
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
59
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.
60
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
61
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
62
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
63
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
64
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
65
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
66
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
67
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
68
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.
69
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
70
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
71
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)
S.
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%
72
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
73
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
74
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
75
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
76
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
77
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
78
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
79
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
80
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,
81
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.
82
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. 

Comments

Popular posts from this blog

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर