IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 152 of 07 with LPA Nos.1, 2 of 2008 & CWP Nos. 1661 of 2007 and 11 of 2008. Judgment reserved on: 26.02.2008 Date of decision: 28th May, 2008 LPA No. 152/2007 H.P.State Forest Corporation Ltd. Appellant. Versus Ram Lal and others. Respondents LPA No. 1/2008 Suresh Kumar and others. Appellants. Versus State of H.P. and others. Respondents LPA No. 2/2008 State of H.P and another. Appellants. Versus Ram Lal and others. Respondents CWP No. 1661 of 2007 Rumel Singh. Petitioner. Versus State of H.P and others. Respondents CWP No. 11 of 2008 Sita Ram and others. Petitioners. Versus State of H.P and others. Respondents. Coram The Hon’ble Mr. Justice Jagdish Bhalla, CJ. The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. LPA No. 152/2007 For the appellant: Ms. Jyotsana Rewal Dua, Advocate For respondents No.9 & 10: Mr. R.K.Bawa, Advocate General with Mr. J.K.Verma, Dy. Advocate General. For the applicant. : Mr. Ajay Mohan Goel, Advocate LPA No. 1/2008 For the appellants: Ms. Jyotsana Rewal Dua, Advocate For respondents No. : Mr. R.K.Bawa, Advocate General 1 to 3. with Mr. J.K.Verma, Dy. Advocate General For the respondent No.4. : Mr. Baldev Singh, Advocate Amicus Curiae. Vinay Kuthiala, Advocate LPA No. 2/2008 For the appellants: Mr. R.K.Bawa, Advocate General with Mr. J.K.Verma, Dy. Advocate General. For the respondent No.1. : Mr. Baldev Singh, Advocate CWP No. 1661/2007 For the petitioner: Mr. Deepak Kaushal, Advocate. For the respondents. Mr. R.K.Bawa, Advocate General with Mr. J.K.Verma, Dy. Advocate General. CWP No. 11 of 2008 For the petitioners: Mr. Ajay Mohan Goel, Advocate. For the respondents: Mr. R.K.Bawa, Advocate General with Mr. J.K.Verma, Dy. Advocate General. Per Deepak Gupta, J. This group of cases is being disposed of by a common judgement as similar questions of law and facts are involved in the same. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. A learned Single Judge of this Court decided CWP 1358 of 2001 vide judgement dated 23.11.2007 whereby he has totally banned the cutting and felling of trees in the State of Himachal Pradesh relying on the various orders passed by the Apex Court in T.N.Godaverman’s case WP(C) No. 202 of 1995. The learned single Judge after discussing the various orders of the Apex Court issued the following directions:- i) the order passed by the Hon’ble Supreme Court on 12.12.1996 in T.N. Godavaraman’s case is in operation and consequently there cannot be any green felling in the entire State of H.P. either in Government owned forest or private as well as removal of fallen trees, diseased trees and dry standing timber; ii) the State has failed to obtain appropriate orders from the Hon’ble Supreme Court on the recommendations of the Expert Committee dated 15th February, 1997 placed by the State Government by way of affidavit dated 21.2.1997 in Godavaraman’s case; iii) the State has further failed to obtain orders from the Hon’ble Supreme Court even after the filing of the affidavit on 2nd May, 1997 as admitted by the Principal Secretary (Forest) in his affidavit dated 25.5.1997; iv) the Hon’ble Supreme Court has directed on 14th February, 2000 the State Government not to give effect to any notification for the commencement of silviculture operation; v) the State has not obtained any orders from the Hon’ble Supreme Court on the basis of the affidavit filed it pursuant to the orders dated 14.2.2000 as stated by the State; vi) the State Government has granted permission for felling of green trees merely on the basis of the recommendations of the Expert Committee dated 15th February, 1997 as admitted by the Secretary (Forest) to the Government of H.P. in his affidavit dated 25.5.1997; and vii) there cannot be any felling or removal of khair trees in the State of H.P. till the necessary clarification is sought by the parties from the Hon’ble Supreme Court with regard to the definition of the word ‘forest’ grown on private lands. These directions issued by the learned Single Judge have been challenged before us in LPA No. 152 of 07, LPA No.1 of 2008 and LPA No. 2 of 2008. The petitioners in CWP No. 1661 of 2007 and CWP No. 11 of 2008 have also challenged the correctness of these directions. According to the petitioners the orders of the Apex Court in T.N.Godaverman’s case were only in respect of the forest land and could not be applied to all land in the State of Himachal Pradesh. It is further submitted that the reports of the Expert Committees did not require to be approved by the Supreme Court. The stand of the State and other appellants is that once the Expert Committees submitted their reports no further orders were required from the Supreme Court. It is contended that copies of the reports were filed before the Apex Court only to apprise it of the fact that the Committees had submitted the reports consequent to the directions of the Court. It is also contended that the directions of the learned Single Judge prohibiting the removal of fallen trees, diseased trees and dry standing timber is against the orders passed by the Apex Court. It is further prayed that the projects which have been approved by the Central Government have also come to a standstill due to the orders of the learned Single Judge and therefore the entire development in the State of Himachal Pradesh has come to a grinding halt. Another ground raised is that the order of the Apex Court were not applicable to the Khair trees, especially the Khair trees grown on non-forest land. To understand and appreciate the contentions of the parties, it would be apposite to quote certain orders of the Apex Court in the T.N.Godaverman’s case. The main order in this case was passed on 12.12.1996. The Apex Court in the said order widened the meaning given to the word ‘forest’ in the Forest Conservation Act and held that the same should be read in the following terms : “It has emerged at the hearing, that there is a misconception in certain quarters about the true scope of the Forest Conservation Act, 1980 (for short the `Act') and the meaning of the word "forest" used therein. There is also a resulting misconception about the need of prior approval of the Central Government, as required by Section 2 of the Act, in respect of certain activities in the forest area which are more often of a commercial nature. It is necessary to clarify that position. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and 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 cover all statutorily recognized forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(1) 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. “ Thereafter the Apex Court issued directions some of which were general in nature and some specific to certain States. For the purpose of deciding the present dispute the relevant directions which are required to be considered are the following:- “I. General : 1. In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the Central Government is required for any non- forest activity within the area of any "forest". In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or ply-wood mills, and mining of any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure total cessation of all such activities forthwith. 2. xxx…xxx…xxx 3. The felling of trees in all forests is to remain suspended except in accordance with the Working Plans of the State Governments, as approved by the Central Government. In the absence of any Working Plan in any particular State, such as Arunachal Pradesh, where the permit system exists, the felling under the permits can be done only by the Forest Department of the State Government or the State Forest Corporation. 4. xxx…xxx…xxx 5. Each State Government should constitute within one month an Expert Committee to: (i) Identify areas which are "forests", irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land of such forest; (ii) identify areas which were earlier forests but stand degraded, denuded or cleared; and (iii) identify areas covered by plantation trees belonging to the Government and those belonging to private persons. 6. Each State Government should within two months, file a report regarding:- (i) the number of saw mills, veneer and plywood mills actually operating within the State, with particulars of their real ownership; (ii) the licensed and actual capacity of these mills for stock and sawing; (iii) their proximity to the nearest forest; (iv) their source of timber. 7. Each State Government should constitute within one month, an Expert Committee to assess : (i) the sustainable capacity of the forests of the State qua saw mills and timber based industry; (ii) the number of existing saw mills which can safely be sustained in the State; (iii) the optimum distance from the forest, qua that State, at which the saw mill should be located. 8. The Expert Committees so constituted should be requested to give its report within one month of being constituted. 9. Each State Government would constitute a Committee comprising of the Principal Chief Conservator of Forests and another Senior Officer to oversee the compliance of this order and file status reports. II. FOR THE STATE OF JAMMU & KASHMIR: xxx… xxx… xxx… xxx… III. FOR THE STATE OF HIMACHAL PRADESH AND THE HILL REGIONS OF THE STATES OF UTTAR PRADESH AND WEST BENGAL: 1. There will be no felling of trees permitted in any forest, public or private. This ban will not affect felling in any private plantation comprising of trees planted in any area which is not a `forest'; and which has not been converted from an earlier "forest". This ban will not apply to permits granted to the right holders for their bonafide personal use in Himachal Pradesh. 2. In a `forest', the State Government may either departmentally or through the State Forest Corporation remove fallen trees or fell and remove diseased or dry standing timber from areas other than those notified under Section 18 or Section 35 of the Wild Life Protection Act, 1972 or any other Act banning such felling or removal of trees. 3. For this purpose, the State Government is to constitute an expert Committee comprising a representative from MOEF, a representative of the State Government, two private experts of eminence and the MD of the State Forest Corporation (as Member Secretary), who will fix the qualitative and quantitative norms for the felling of fallen trees and diseased and standing timber. The State shall ensure that the trees so felled and removed are in accordance with these norms. 4. Felling of trees in any forest or any clearance of forest land in execution of projects shall be in strict conformity with the Forest Conservation Act, 1980 and any other laws applying thereto. Moreover, any trees so felled, and the disposal of such trees shall be done exclusively by the State Forest Corporation and no private agency is to be involved in any aspect thereof. xxx… xxx… xxx… xxx… xxx… The earlier orders made in these matters shall be read, modified wherever necessary to this extent. This order is to continue, until further orders. This order will operate and be complied with by all concerned, notwithstanding any order at variance, made or which my be made hereafter, by any authority, including the Central or any State Government or any court (including High Court) or Tribunal.” (Emphasis supplied) Another order was passed by the Apex Court on 14.2.2000, relevant portion of which reads as follows:- “Issue notice to all the respondents. In the meantime, we restrain respondents Nos. 2 to 32 from ordering the removal of dead, diseased, dying or wind-fallen trees, drift wood and grasses etc. from any National Park or Game sanctuary or forest. If any order to this effect has already been passed by any of the respondent-States, the operation of the same shall stand immediately stayed.” However, this portion of the order was modified on 28.2.2000 and the word Forest was ordered to be deleted. In the same order the Apex Court had also issued specific directions in respect of the State of Himachal Pradesh in the following terms:- “It is submitted by the amicus curiae that it has been reported in the Press that the State of Himachal Pradesh has passed some orders lifting the ban on felling of trees in that State. It is submitted that by order dated 12th December, 1996 of this Court in WP(c) No. 202/1995 felling of trees in any forest, public or private has been banned and this order has not been varied so far. He, therefore, submits that if there is any order issued by the State of Himachal Pradesh giving permission to the felling of trees, that would amount to contravention of this Court’s order dated 12th December, 1996 and would therefore, be bad in law. We issue notice to the State of Himachal Pradesh to file an affidavit within three weeks so as to inform the Court whether any such order has been passed. We make it clear that if any such order has been passed, the operation of the same shall remain stayed till further orders by this Court.” Pursuant to the orders dated 12.12.1996 passed by the Apex Court the State of Himachal Pradesh constituted an Expert Committee in terms of General Directions 5 and 7. The Expert Committee submitted its report. The State Government filed an affidavit before the Apex Court on 21st February, 1997, annexing therewith the copy of the report. When the report was submitted certain submissions were made. However, no order has been brought to our notice specifically pointing out that the Apex Court has either accepted or rejected this report of the Committee. The State Government also constituted an Expert Committee in terms of the direction No.3 in respect of the specific directions relating to the State of Himachal Pradesh and other hill regions, to fix the norms and standards for felling of fallen trees, diseased trees and dry standing timber. The report of the Committee was filed in the Apex Court on 2nd May, 1997. In response to the orders of the Apex Court dated 14.2.2000 referred to above the State of H.P filed another affidavit which reads as follows:- “ That, after reviewing the progress of preparation of Working Plans, and their consequent approval by the Central Government, the State Government on 25th November 1999 has only reiterated its intention as expressed in the earlier decision taken on 11th February, 1997 and already placed before this Hon’ble Court by the affidavit dated 2.5.1997. Neither the cabinet decision dated 11.2.1997 nor its reiteration dated 25.11.1999 have actually been implemented in deference to the pending of the above matter before this Hon’ble Court. This decision of the State Government was based on its bonafide understanding that the Hon’ble Court’s interim directions of 12th December 1996 had been passed due to the concern of this Hon’ble Court about non- adherence by the State Governments to the various provisions and guidelines of the Forest (Conservation) Act, 1980. This inter alia included the working of the forests only under the Working Plans approved by the Central Government. The directions clearly express the Hon’ble Court’s concern regarding lack of scientific management of the forests, and require the States to not only prepare Working Plans, but to also seek approval of the Central Government before applying their prescriptions, including felling of trees. This interpretation was further reinforced on receipt of directions of this Hon’ble Court, issued on 15 January 1998, whereby it was again stressed that: “Working Plans for all forest Divisions shall be prepared by the State Governments and got approved from the Government of India. Forest working shall be carried out strictly in accordance with the approved prescriptions of the Working Plans. (copy of State Government decision of 25.11.1999 is enclosed as A-3.) It is reiterated that no felling of trees has taken place consequent to the impugned decision of 25.11.1999 taken by the replying State (copy of the letter dated 18.2.2000 issued by State Government as stated in this para is enclosed as A-4).” It will be pertinent to mention that in this affidavit the State Government has clearly admitted that the working plans were required to be approved by the Central Government. According to the State, the working plan were got actually approved from the State Government. It was also stated that no felling of trees has taken place consequent to the decision dated 25.11.1999. Some of the petitions before us are in respect of felling of Khair trees. The Supreme Court dealt with matters concerning the felling of Khair trees in the State of Jammu and Kashmir. The Court observed that the orders passed by the officials of the State of Jammu and Kashmir permitting felling of Khair trees were against the earlier orders passed by the Court. On 4th May, 1998 counsel for the State of Jammu and Kashmir was directed to give names of officials who had passed such orders. On the next date, i.e. 5th May, 1998 detailed order was passed and contempt notices were issued to a number of officials of the State of Jammu and Kashmir. Thereafter the contemnor tendered their apologies and the State of Jammu and Kashmir assured the Apex Court that no felling of Khair trees from any forest or from private land would be permitted until the issue is decided by the Apex Court. No subsequent order has been brought to our notice permitting felling of Khair trees. One of us (Deepak Gupta, J.) had dealt with the question as to whether the reports of the Committees constituted under the General Directions of the Apex Court were required to be approved by the Apex Court in CWP No. 203 of 2001, wherein it was held as follows: “Shri Kuldip Singh Kanwar has submitted that the judgment in Godavarman’s case (supra) will not affect the rights of his clients since the apex Court in the petitioners’ case had earlier passed a judgment dismissing the appeal filed by the State of Himachal Pradesh. According to him, the bar to felling the trees will not apply in cases where a decision has already been taken by the apex Court permitting such felling of trees. He submits that even otherwise, the case of the petitioners falls out-side the ambit of the order in Godavarman’s case, since in the case, the land in question as per revenue record is depicted as “Ghasani” land and is not forest land. He further submits that the recommendations of the Committee relied upon by the respondents have not been accepted by the apex Court or by the State and as such cannot be enforced. On the other hand Shri M.S.Chandel, learned Advocate General submits that consequent upon the direction of the apex Court to set up Expert Committee to identify areas which are “forest” irrespective of whether they are so notified, recognized or classified under any law, and irrespective of the ownership of the land of such forest. The Committee made the following recommendations with regard to private land:- “As the private lands be considered as forests under private ownership, it was decided that a compact block of wooded land above 5 ha. in extent will be “forest” for the purpose of forest (Conservation) Act, 1980.” According to the respondents, the land of the petitioners is about 10 hectares and is one compact block of land which is heavily wooded and as such the same falls within the definition of “forest” as recommended by the Committee. It is further submitted this report has been submitted to the apex Court and it is under these circumstances that the State Government has not granted permission to fell trees. After hearing learned counsel for the parties and going through the entire record, I feel that it would not be appropriate for this Court to issue any directions or give any findings in the present case. The entire dispute revolves around the interpretation to be given to the orders of the apex Court. The report of the Committee has also been placed before the apex Court. In case the apex Court accepts the report of the Committee then obviously the trees cannot be permitted to be felled. There is no material on record to show whether the report has been accepted or rejected by the apex Court. The appeal arising out of contempt matter has also been dismissed by the apex Court by giving aforesaid directions. It would not be out of place to mention that when the appeal arising out of contempt matter was disposed of by the apex Court apparently, the petitioners did not bring it to the notice of the apex Court that the present writ petition is pending before this Court. In view of the fact that the whole dispute revolves around the question relating to felling of trees which is under the active consideration of the apex Court in Godavarman’s case (supra), in which case the apex Court had ordered that no Court should allow felling of trees, it would not be appropriate for this Court to express any opinion in the matter. The remedy of the petitioners, if any, is to approach the Supreme Court of India.” As far as the report of the Expert Committees constituted under General Directions 5 and 7 of the Apex Court are concerned, we are of the considered opinion that the same were not only required to be placed before the Apex Court but the approval of the Apex Court was required before the State could act on the basis of the said reports. Not only had the Supreme Court directed that two Expert Committees should be constituted to identify the areas which are forest, etc. and also to assess the sustainable capacity of forest in respect of saw mills but the State was also required to constitute a third Committee to over-see the compliance of the orders and file status report. When the Supreme Court directed that the status report be filed it obviously meant that the Supreme Court would look into the report and pass further orders. Once status reports were filed, it was but obvious that the Supreme Court would have decided whether to accept the report of the Committee or not. However, as far as the report of the Committee constituted under direction 3 of the directions issued specifically in relation to Himachal Pradesh is concerned, it has to be read in conjunction with the permission granted in direction-2 therein. The Apex Court in direction