NARINDER SINGH & ORS. versus DIVESH BHUTANI & ORS.
[2022] 15 S.C.R. 1066, Supreme Court of India, 2022
Outcome: Disposed off
Segment: Ratio
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   [2022] 15 S.C.R. 1066
1066
NARINDER SINGH & ORS.
v.
DIVESH BHUTANI & ORS.
(Civil Appeal No. 10294 of 2013)
JULY 21, 2022
[A. M. KHANWILKAR, ABHAY S. OKA AND
C. T. RAVIKUMAR, JJ.]
Forest (Conservation) Act, 1980 – s.2 – Punjab Land
Preservation Act, 1900 [As amended by Punjab land preservation
(Haryana Amendment) Act, 2019] – s.4 – Forest Act, 1927 – Whether
a land covered under a special order issued by the State Government
u/s. 4 of the PLPA is a ‘forest land’ within the meaning of the 1980
Forest Act – Held: The lands covered by the special orders issued
u/s. 4 of PLPA have all the trappings of forest lands within the
meaning of s.2 of the 1980 Forest Act and, therefore, the State
Government or competent authority cannot permit its use for non-
forest activities without the prior approval of the Central
Government w.e.f. 25.10.1980 – Prior permission of the Central
Government is the quintessence to allow any change of user of
forest or so to say deemed forest land – Even during the subsistence
of the special orders u/s. 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 s.2 of the 1980 Forest Act, to that extent, the restrictions imposed
by the special orders u/s. 4 of PLPA will not apply in view of the
language used in the opening part of s.2 of the 1980 Forest Act – It
is
also clarified that only because there is a notification issued u/s.
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.
Disposing of the appeals and writ petitions, the Court
HELD: 1. The various restrictions, regulations and
prohibitions in different clauses in Section 4 of Punjab Land
Preservation Act, 1900 (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
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to erosion or likely to become liable to erosion when it appears
to the State Government that it is desirable to provide for the
conservation of sub-soil water or the prevention of erosion. As
noted earlier, one of the objectives of PLPA is to prevent erosion
of land which may be caused due to deforestation. When the State
Government is satisfied that as a result of deforestation or
impending deforestation, erosion of a particular area out of the
area notified under Section 3 is likely to take place, the State
Government may exercise the power under Section 4 by issuing
a special order. The reason is that the measures provided in
Section 4 are intended to prevent deforestation of a forest area.
Section 3 of PLPA contemplates the issuance of a notification in
respect of a larger area when it is desirable to provide for the
conservation of sub-soil water or prevention of erosion. When
the State Government is satisfied that deforestation of a forest
area forming part of a larger area notified under Section 3 is likely
to lead to erosion of soil, the power under Section 4 can be
exercised. Therefore, it follows that the specific land in respect
of which a special order under section 4 of PLPA has been issued
will have all the trappings of a forest governed by clauses (ii) to
(iv) of Section 2 of the 1980 Forest Act. Therefore, in respect of
the lands covered by special orders under Section 4 of PLPA,
the State Government or authorities of the State can
permit
diversion to non-forest use only after prior approval of the Central
Government is granted in accordance with Section 2 of the 1980
Forest Act. [Para 47][1104-A-F]
2. 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 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. [Para 48][1104-F-H]
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
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3. In this group of petitions, this Court is concerned with
three special orders under Section 4 issued on 18th August 1992
in respect of the said three villages. The effect of the said orders
is that the lands referred to therein are forest lands within the
meaning of Section 2 of the 1980 Forest Act. Even if such orders
are cancelled or amended or rescinded or their duration comes
to an end, the status of the lands covered by the same as forest
lands governed by Section 2 of the 1980 Forest Act cannot be
altered without following the due process provided therein. Once
a land is found to be a ‘forest’ within the meaning of the 1980
Forest Act, its user for non-forest purposes will be always
governed by Section 2 of the 1980 Forest Act. Secondly, clause
(i) of Section 2 provides that even in the case of a reserved forest
under the 1927 Forest Act, the State Government cannot pass an
order declaring that the same shall cease to be a reserved forest,
without the prior approval of the Central Government. Thirdly,
Section 2 starts with a non obstante clause which overrides anything
contained in any other law for the time being in force in a State
which will include all State and Central legislations applicable to
the State. Therefore, prima facie, the 2019 Amendment Act
enacted by the State Legislature would be repugnant to and
violative of Section 2 of the 1980 Forest Act, if construed
otherwise. Hence, whether the
2019 Amendment Act is given
effect or not, it will not change the status of the lands covered by
the special orders under Section 4 of PLPA as the said lands
possess all the trappings of a forest with effect from 25th October
1980 within the meaning of the 1980 Forest Act. Therefore, it is
not necessary 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.
[Para 63][1114-D-H; 1115-A-B]
4. The lands covered by the special orders issued under
Section 4 of PLPA have all the trappings of forest lands within
the meaning of Section 2 of the 1980 Forest Act and, therefore,
the State Government or competent authority cannot permit its
use for non-forest activities without the prior approval of the
Central Government with effect from 25th October 1980. Prior
permission of the Central Government is the quintessence to
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allow any change of user of forest or so to say deemed forest
land. This Court 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. This Court
may 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. [Para 64][1115-C-E]
T.N. Godavarman Thirumulkpad v. Union of India and
Ors. (1997) 2 SCC 267 : [1996] 9 Suppl. SCR 982; T.
N. Godavarman Thirumulkpad v. Union of India and
Ors. (2008) 16 SCC 401; M.C. Mehta v. Union of India
and Ors. (2004) 12 SCC 118 : [2004] 3 SCR 126; M.C.
Mehta v. Union of India & Ors.(2008) 17 SCC 294 :
[2008] 8 SCR 828; B.S. Sandhu v. Government of India
and Ors (2014) 12 SCC 172; M.C. Mehta (Kant Enclave
Matters, In Re.) v. Union of India & Ors. (2018) 18
SCC 397 : [2018] 11 SCR 384; Rajeev Suri v. Delhi
Development Authority and Others (2021) SCC online
SC 7; Citizens for Green Doon and Others v. Union of
India and Others (2021) SCC
OnLine SC 1243 –
referred to.
Vijay Bansal & Others v. State of Haryana & others
2009 SCC online P & H 8073; Laxman Ichharam v.
The Divisional Forest Officer, Raigarh AIR 1953 Nagpur
page 51 – referred to.
Case Law Reference
[1996] 9 Suppl. SCR 982
referred to
Para 15
(2008) 16 SCC 401
referred to
Para 15
[2004] 3 SCR 126
referred to
Para 15
[2008] 8 SCR 828
referred to
Para 15
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
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[2014] 6 SCR 329
referred to
Para 15
[2018] 11 SCR 384
referred to
Para 16
CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil Appeal
No.10294 of 2013
From the Judgment and Order dated 03.05.2013 of the National
Green Tribunal, Principal Bench, New Delhi in Application No.42 of
2013.
With
Civil Appeal Nos.8454 of 2014, 8173 of 2016, 11000 of 2013 and
Writ Petition (Civil) Nos.1008, 1031 And 1320 of 2021.
Tushar Mehta, SG, K. M. Natraj, Ms. Aishwarya Bhati, ASGs,
Anil Grover, Sr. AAG, B. K. Satija, AAG, Arun Bhardwaj, Vikas Singh,
Sanjay Parikh, Colin Gonsalves, Manoj Swarup, Narender Hooda, D.
N. Goburdhun, Sr. Advs., Ajay Bansal, Rahul Kr. Sharma, Navin Gupta,
Samar Vijay Singh, Abhishek Sharma, Ms. Gauraan, Sanjay Kumar Visen,
Dr. Monika Gusain, Ms. Babita Mishra, Sarad Kr. Singhania, Gurmeet
Singh Makker, Sumit Teterwal, Vanshdeep Dalmia, Chinmayee Chandra,
Ms. Monisha Handa, Rajul Shrivastav, Mohit D. Ram, Ms. Srishti
Agnihotri, Satwick Parikh, Ms. Sanjana Thomas, Kawalpreet Kaur,
Haider Ali, Ms. Amit Shukla, Satya Mitra, Neelmani Pant, Raghav Bhatia,
Arunesh Grover, Ankit Swarup, Shekhar G. Devasa, Manish Tiwari,
Shashi Bhushan Nagar, Ms. Satvisa Pattanayak, M/s Devasa & Co.,
Aakarsh Kamra, Ms. Gauri Goburdhun, Ms. Sunita Singh Chauhan,
Hitesh Kumar Sharma, S. K. Rajora, Akhileshwar Jha, E. Vinay Kumar,
Naresh Kumar, Ms. Ranjeeta Rohatgi, Sourabh Tandon, Ms. Charu
Narula, Anuj Gupta, Tejaswi Kumar Pradhan, Manoranjan
Paikaray,
Ritwick Dutta, Rahul Choudhary, Ms. K. V. Bharathi Upadhyaya, Kedar
Nath Tripathy, Sibo Sankar Mishra, Vijay Kumar, Ms. Manjeet Kirpal,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
1. The broad issue involved in these appeals and writ petitions is
“Whether a land covered under a special order issued by the Government
of Haryana under Section 4 of the Punjab Land Preservation Act, 1900
(for short, ‘PLPA’) is a ‘forest land’ within the meaning of the Forest
(Conservation) Act, 1980 (for short, ‘the 1980 Forest Act’)?”
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FACTUAL ASPECTS
2. Civil Appeal No.10294 of 2013, Civil Appeal No.8454 of 2014,
Civil Appeal No.8173 of 2016 and Civil Appeal No.11000 of 2013 take
exception to the orders passed by the National Green Tribunal (for short,
‘the NGT’).
3. Civil Appeal No.10294 of 2013 takes exception to the order
dated 03rd May 2013 passed by the NGT in Original Application No.42
of 2013. The said application was filed for inviting the attention of the
NGT to the illegal non-forest activities of the encroachers on the lands
bearing Khasra Nos.1359, 1374 and 1378 of Village Anangpur Tehsil
Ballabhgarh, District Faridabad in the State of Haryana. The NGT passed
the impugned order restraining the carrying on of any non-forest activities
on the subject lands. The NGT proceeded on the footing that the lands
at village Anangpur covered by the order dated 18th August 1992 issued
under Section 4 of PLPA were forest lands within the meaning of the
1980 Forest Act. Before the said order dated 18th August 1992 was
passed, a notification dated 10th April 1992 under Section 3 of PLPA
was issued notifying the entire area covered by Ballabhgarh Tehsil of
Faridabad District. The appellants are running marriage halls on the land
subject matter of the said order dated 18th August 1992, issued under
Section 4 of PLPA.
4. Civil Appeal No.8173 of 2016 impugns the order dated 16th
May 2016 passed by the NGT in Original Application No.519 of 2015.
In Original Application No.519 of 2015, a prayer
was made to stop the
commercial and non-forest activities on the lands bearing Khasra No.182
Min, RECT No.61, Kila No.19 (8-0), 20/1(0-7) and 22/2 (7-17) of Village
Ankhir, Tehsil Ballabhgarh, District Faridabad in the State of Haryana.
The said lands were the subject matter of another order issued on 18th
August 1992 by the Government of Haryana in the exercise of the power
under Section 4 of PLPA in respect of certain lands in village Ankhir.
The NGT held that the lands covered by the said order under Section 4
were forest lands within the meaning of the 1980 Forest Act.
5. Civil Appeal No.11000 of 2013 takes exception to the same
order dated 03rd May 2013 passed by the NGT in Original Application
No.42 of 2013, which is also the subject matter of challenge in Civil
Appeal No.10294 of 2013. The appellants claim to be the owners of a
restaurant on the land subject matter of the order dated 18th August
1992, issued under Section 4 of PLPA.
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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6. Civil Appeal No.8454 of 2014 also takes exception to the same
order dated 03rd May 2013 of the NGT. The appellants therein are having
marriage halls on the subject land.
7. The petitioners in Writ Petition (Civil) No.1031 of 2021 have
invoked Article 32 of the Constitution of India. The petitioners claim to
be the holders of the lands in Villages Anangpur, Ankhir and Mewla
Maharajpur (for short, ‘the said three villages’) in Tehsil Ballabhgarh,
District Faribadad in the State of Haryana. The lands held by them are
the subject matter of the three separate orders dated 18th August 1992
issued under Section 4 of PLPA in respect of certain lands in the said
three villages. The petition is based on a Public Notice dated 21st August
2021 issued by the Municipal Corporation of Faridabad informing that in
compliance with the orders passed by this Court, a time of two days has
been granted to the members of the public to remove illegally constructed
farm houses/banquet halls/ structures on forest lands, failing which the
Municipal Corporation and Forest Department of the State Government
will undertake action to remove the said structures on 23rd August 2021.
In the writ petition, it is contended that the said notice was issued based
on the orders passed by this Court from time to time in the Petitions for
Special Leave to Appeal (Civil) Nos.7220-7221 of 2017 (Municipal
Corporation of Faridabad v. Khori Gaon Residents
Welfare
Association through its President). A declaration was prayed for that
the orders dated 18th August 1992 issued under Section 4 of PLPA were
illegal apart from praying for the other reliefs. It was contended that the
said orders dated 18th August 1992 were illegal as the compliance with
the mandatory provisions of Sections 3, 6, 7 and 14 of PLPA was not
made. A prayer was also made for issuing a writ of mandamus to the
State of Haryana to notify and implement the Punjab Land Preservation
(Haryana Amendment) Act, 2019 (for short, ‘the 2019 Amendment Act’).
8. The petitioner in Writ Petition (Civil) No.1008 of 2021 claims to
be a resident of Village Ankhir. He claims to be the owner of the land
bearing Khasra Nos.32 and 39 of Village Ankhir. One of the contentions
raised by the petitioner is that the construction on the subject lands was
made before 18th August 1992. Therefore, a direction is sought to restrain
the respondents from disturbing the peaceful possession of the petitioner
over the subject land and from demolishing structures thereon.
9. The petitioners in Writ Petition (Civil) No.1320 of 2021 claim to
be the residents of Village Old Lakkarpur Khori. They contend that the
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Faridabad Municipal Corporation acting in collusion and connivance with
the owners of the hotels and farmhouses mentioned in the petition has
illegally demolished their structures. It is contended that the said Municipal
Corporation has implemented orders passed by this Court in the Petitions
for Special Leave to Appeal Nos.7220-7221 of 2017 by picking and
choosing some structures while not disturbing the hotels and farmhouses
constructed on the lands subject matter of the orders passed under Section
4 of PLPA. The prayer in the petition is for issuing a writ of mandamus,
directing the respondents to restore possession of the petitioners in respect
of their residential structures in Village Old Lakkarpur Khori.
SUBMISSIONS OF THE PETITIONERS/APPELLANTS
10. Shri Vikas Singh, the learned Senior Counsel appearing for
the petitioners in Writ Petition (Civil) No.1031 of 2021, has made detailed
submissions. His primary submission is that merely because the subject
lands are covered by the notifications/orders issued by the State of
Haryana under Sections 3, 4 and 5 of PLPA, the same cannot be ipso
facto treated as forest lands within the meaning of the 1980 Forest Act.
He submitted that though the lands in question have been shown as
unclassified forests in the records of the State Forest Department, it is
not conclusive as the Forest Department is only a supervisory department.
He invited our attention to the scheme of PLPA and particularly, Sections
3, 4 and
5. He pointed out that a notification under Section 3 of PLPA
can be issued only when, according to the opinion of the State
Government, conservation of sub-soil water or the prevention of erosion
is needed in any area subject to erosion or likely to become liable to
erosion. He submitted that the orders under Sections 4 and 5 of PLPA
could only be issued in respect of the lands covered by a valid notification
under Section 3. His submission is that issuing a proper notification under
Section 3 of PLPA is a sine qua non for issuing the orders under Sections
4 and 5 of PLPA. His submission is that a notification under Section 3 of
PLPA was not issued regarding any of the lands in the said three villages.
He relied upon the notification dated 17th October 1989 issued under the
Punjab Land Revenue Act, 1887 (for short, ‘the Land Revenue Act’)
and contended that by the said notification, the State Government varied
the limits of Tehsil Ballabhgarh, District Faridabad by excluding the area
of the said three villages. He submitted that after 17th October 1989, a
notification under Section 3 of PLPA was not issued regarding the lands
in the said three villages. Therefore, the orders issued in respect of the
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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three villages under Sections 4 and 5 are illegal. He pointed out that
after the amendment made in 1926 to PLPA, the orders contemplated
under Sections 4 and 5 could be issued only for a temporary period. He
submitted that once the period specified in the orders under Sections 4
and 5 expires, the restrictions imposed by the said orders cease to apply.
He pointed out that in any case, the orders dated 18th August 1992 issued
under Section 4 of PLPA prohibit certain activities such as clearing or
breaking up of lands and quarrying of the stones, etc., without permission
of the authorities mentioned therein. Thus, the only restriction imposed
by the orders under Section 4 is of prohibiting certain activities without
obtaining prior permission from the authorities mentioned therein. He
urged that the provisions of PLPA are not intended to protect any forest
or forest activities.
11. He invited our attention to the provisions of the Indian Forest
Act, 1927 (for short, ‘the 1927 Forest Act’). He submitted that the Act
deals with three categories of forest lands. The first category is of the
reserved forests covered by Sections 3 to 27. The second category is of
the protected forests or waste-lands which are the property of the
Government and not included in the reserved forests. Sections 29 to 34
enable the State Government to notify such lands as protected forests.
The third category is of private lands. Sections 35 to
38 allow the State
Government to regulate or prohibit certain activities, such as, breaking
up or clearing of land for cultivation, etc., in any forest or waste lands.
He pointed out that the important difference between Section 4 of PLPA
and Section 35 of the 1927 Act is that Section 4 contains permissive or
enabling provisions, and Section 35 is completely prohibitory. He urged
that what is prohibited under Section 35 cannot be permitted even by the
authorities. He submitted that even the lands covered by Sections 35 to
38 of the 1927 Act, which are private lands with forests, do not vest in
the Government. He pointed out that the acquisition of such lands can
be made under the Land Acquisition Act, 1894 by the State Government
or upon the request of the owners, which should be made within not less
than three months from the notification issued under Section 35 and not
later than twelve years from the date of such notification. He urged that
the 1927 Act is the appropriate legislation dealing with forests. The fact
that the provisions of Sections 35 to 38 dealing with private lands have
been included in Chapter V of the 1927 Act fortifies the submission of
the petitioners that PLPA is not a legislation which deals with or is intended
to deal with forests on private properties.
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12. Without prejudice to the submission that PLPA does not deal
with forests at all, the learned senior counsel submitted that after the
1927 Forest Act came into force, the provisions of the PLPA, to the
extent to which the same deal with lands which fall within the domain of
the 1927 Forest Act, became inoperative being repugnant to the 1927
Forest Act. The 1927 Forest Act is a central legislation, which must
prevail. Hence, if any private land is to be treated as a forest land, the
same must satisfy the tests laid down in Chapter V of the 1927 Forest
Act.
13. Another limb of his argument is that the subject lands were a
part of the controlled area notified under Section 29 of the Faridabad
Complex (Development and Regulation) Act, 1971 (for short, ‘the 1971
Act’) and in fact, the final development plan covering the subject lands
was prepared and notified on 17th December 1991. The development
plan under the 1971 Act is prepared after following a detailed procedure
of assessment of areas which are likely to be notified as controlled areas
for the purposes of planned development. Once a land is designated as
a controlled area, it will cease to be a forest.
14. The learned senior counsel urged that as mandated by Section
6 of PLPA, no inquiry was conducted before imposing the regulations
and restrictions under Sections 4 and 5 of PLPA. Public notice of the
Government Orders dated 18th August 1992 was not published in
accordance with Section 7 of PLPA.
Moreover, under Section 7(b), the
land owners are entitled to receive compensation from the State
Government on account of restrictions imposed by Sections 4 or 5 of
PLPA. But the land owners affected by the orders dated 18th August
1992 have not been paid any compensation. He submitted that even
Section 37 of the 1927 Forest Act provides for payment of compensation
to the owners of the private lands having a forest. He urged that assuming
that the orders dated 18th August 1992 under Section 4 are legal, the
petitioners ought to have been paid adequate compensation. He submitted
that once the 2019 Amendment Act is allowed to be implemented by
modifying the order dated 1st March 2019 passed in Writ Petition (Civil)
No.4677 of 1985, the entire issue will be ironed out. He submitted that
the 2019 Amendment Act seeks to strike a balance between the rights
of the land owners and the need to have environmental protection.
15. Referring to the decision of this Court in the case of T.N.
Godavarman Thirumulkpad v. Union of India and Ors.1 (1997
1 (1997) 2 SCC 267
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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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 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 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
2 (2008) 16 SCC 401
3 (2004) 12 SCC 118
4 (2008) 17 SCC 294
5 (2014) 12 SCC 172
6 (2018) 18 SCC 397
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and Gurugram will have to be treated as forests under the 1980 Forest
Act, which will have disastrous consequences.
18. The learned counsel appearing for the appellants in Civil Appeal
No.8173 of 2016 firstly urged that the Faridabad Tehsil has not been
notified under Section 3 of PLPA. He pointed out that Ballabhgarh and
Faridabad are the Tehsils within District Faridabad. The notification under
Section 3 of PLPA dated 10th April 1992 is only in respect of Ballabhgarh
Tehsil. His submission is that there was no notification issued under
Section 3 of PLPA in respect of the land of the appellants in village
Ankhir and therefore, the order under Section 4 is illegal. He submitted
that the 1927 Forest Act provides for a grant of compensation in respect
of the private lands declared as forests. He submitted that there is an
inconsistency between the 1927 Forest Act which is a Central legislation
and PLPA which is a State Legislation. He urged that under Sections 4,
29 and 35 of the 1927 Forest Act, there is a provision to declare lands of
different categories as forests. However, the same can be done only
after prior notice and after granting an opportunity of being heard to the
affected persons. Moreover, under Section 37 of the 1927 Forest Act,
there is a provision for acquiring private land declared as a forest and
consequently, there is a provision regarding payment of compensation.
Assuming that the lands covered by the orders issued under Section 4
and
5 of PLPA are forests under the 1980 Forest Act, there is no provision
for giving a hearing to the owners/affected persons before issuing the
orders. There is no provision for acquiring such lands and only a limited
compensation is payable under PLPA to the owners. He pointed out the
earlier affidavits filed on behalf of the State of Haryana. The First
Affidavit is of Shri Banarsi Dass, Principal Chief Conservator of Forests,
Haryana which is dated 08th December 1996. He also pointed out the
affidavit dated 25th February 1997 filed by Shri S.K. Maheswari,
Commissioner and Secretary to the Government of Haryana, Forest
Department. He submitted that assuming that the contentions raised in
both the affidavits are correct, the area covered by the notifications
under Sections 4 and 5 of PLPA will continue to be the forest only
during the currency of the periods specified in the orders. The learned
counsel also relied upon the decisions of this Court in the case of B. S.
Sandhu5 in support of his case that the lands covered by the orders
passed under Sections 4 and 5 are not necessarily forests within the
meaning of the 1980 Forest Act. He submitted that the limited object of
PLPA was to preserve sub-soil water and to stop soil erosion. He
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submitted that PLPA was never intended to deal with forests or forest
lands. He submitted that whether a particular land is a forest within the
meaning of the 1980 Forest Act, is an issue to be considered and decided
in the facts of each case. Lastly, he urged that Section 4 of PLPA prohibits
only certain activities without permission of the authorities named therein.
This is an indication that the lands covered by the orders under Section
4 are not forests.
19. The submissions of the appellants in Civil Appeal No.10294 of
2013 are also similar. In addition, a submission was made that as required
by Section 7 of PLPA, notifications/orders under Sections 3, 4 and 5
were not published in vernacular language.The appellants also relied
upon the provisions of Section 29 of the 1971 Act and Section 27 of the
National Capital Region Planning Board Act, 1985 (for short, ‘the NCR
Act’). He submitted that the NCR Act will have an overriding effect
over PLPA, which is a State Act.
THE SUBMISSIONS OF THE STATE GOVERNMENT
20. The learned Solicitor General of India appearing for the State
Government extensively relied upon the Additional Affidavit filed by Shri
Suresh Dalal, Addl. Principal Chief Conservator of Forest, Haryana. He
submitted that the effect of the 1980 Forest Act is that except for certain
purposes mentioned in Section 2, forest lands can always be diverted for
non-forest use with the prior permission of the
Central Government.
Our attention was invited to various provisions of PLPA and amendments
carried out thereto from time to time. He submitted that the Statement
of Objects and Reasons of the 2019 Amendment Act makes it clear that
the object of PLPA was not to extinguish property rights. The learned
counsel urged that the main object was to prevent erosion of soil and
conservation of sub-soil water. It was contended that PLPA has no
connection whatsoever with the issue of forests. He submitted that the
only decision of this Court that deals with the effect of the orders under
Sections 4 and 5 is in the case of B. S. Sandhu5, which clearly holds
that a land covered by such orders may or may not be a forest. His
submission is that the decision in the 3rd M.C. Mehtacase6 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
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and 5 of PLPA, and therefore, the entire area covering the said Districts
cannot be a forest. It was pointed out that about 39.35% of the
geographical area of the State of Haryana has been notified under PLPA.
His submission is that all the lands notified under PLPA cannot be treated
as forest lands under the 1980 Forest Act as the consequences thereof
will be disastrous. Our attention was invited to paragraph 81 of the said
Additional Affidavit, in which it is pointed out that about 59 public projects
have come up in the areas notified under Sections 3, 4 and 5 of PLPA.
The projects/structures include CRPF Group Centre, Terminal Ballistic
Research Laboratory, Police Lines, Government ITI College, etc.He
laid emphasis on the 2019 Amendment Act. It was submitted that as
there is no challenge to the validity of the 2019 Amendment Act, the
State Government may be permitted to implement the same. The learned
counsel further stated that the only factual statement made in the earlier
affidavits dated 08th December 1996 and 25th February 1997 is that the
areas notified under Sections 4 and 5 of PLPA were being shown as
State regulated forest areas during the currency of the notifications.
However, that practice was discontinued later. The affidavits do not
deal with the status of the notified lands.
SUBMISSIONS OF THE INTERVENORS/APPLICANTS
21. The learned senior counsel Shri Colin Gonsalves appearing
for the applicant in I.A. No. 33254 of 2022 firstly
submitted that the
claim made by the State that very large areas of the State and in particular
Faridabad and Gurgaon districts have been notified under PLPA is
fallacious. For that purpose, he relied upon the statistics produced by the
State Government itself in its additional affidavit. He submitted that a
very tall and incorrect claim has been made by the State Government
that nearly 40% of the area of the State will be a forest if the lands
notified under Sections 3 and 4 of PLPA are treated as forest lands.
Relying upon paragraph 50 of the said affidavit, he pointed out that out
of the geographical area of 1,25,800 hectares of Gurugram district, the
special orders under Sections 4 and 5 cover only an area of 6821 hectares.
Similarly, out of the geographical area of 74,100 hectares of Faridabad
district, only an area of 5611 hectares has been covered by the special
orders under Sections 4 and 5 of PLPA. He pointed out that as stated in
paragraph 49 of the same affidavit, the total area of the forests under
the 1927 Forest Act and unclassified forests represents 3.31 per cent of
the geographical area of the State. He submitted that even the State
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Government has taken a consistent stand that the areas covered by
notifications issued under clause (a) of Sections 4 and 5 of PLPA are
forests within the meaning of the 1980 Forest Act. He submitted that the
same stand was specifically taken by the State Government in I.A. filed
by it before the High Court in the case of Vijay Bansal & Others v.
State of Haryana & others7. He urged that Section 2 of the 1980
Forest Act overrides all the laws for the time being in force in the State.
He submitted that the only effect of Section 2 of the 1980 Act is that
there is an embargo on the State Government or any other authority on
passing an order permitting the use of any forest land for non-forest
purposes without the prior approval of the Central Government. He
submitted that as far as the order dated 18th August 1992 under Section
4 of the PLPA in respect of the lands in village Anangpur is concerned,
the issue has been concluded in the 3rd M.C. Mehtacase6 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 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
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records maintained by the Forest Department are also government
records. The learned Amicus curiae also made brief submissions.
CONSIDERATION OF SUBMISSIONS
THE APPROACH OF THE COURT IN INTERPRETING
THE LAWS RELATING TO FORESTS AND THE
ENVIRONMENT
25. While interpreting the laws relating to forests, the Courts will
be guided by the following considerations:
i.
Under clause (a) Article 48A forming a part of Chapter IV
containing the Directive Principles of State Policy, it is the
obligation of the State to protect and improve the
environment and to safeguard the forests;
ii.
Under clause (g) of Article 51A of the Constitution, it is a
fundamental duty of every citizen to protect and preserve
the natural environment, including forests, rivers, lakes and
wildlife etc.;
iii.
Article 21 of the Constitution confers a fundamental right
on the individuals to live in a pollution-free environment.
Forests are, in a sense, lungs which generate oxygen for
the survival of human beings. The forests play a very
important role in our ecosystem to prevent pollution. The
presence of forests is necessary for enabling the citizens to
enjoy their right to live in a pollution-free environment;
iv.
It is well settled that the Public Trust Doctrine is a part of
our jurisprudence. Under the said doctrine, the State is a
trustee of natural resources, such as sea shores, running
waters, forests etc. The public at large is the beneficiary of
these natural resources. The State being
a trustee of natural
resources is under a legal duty to protect the natural
resources. The public trust doctrine is a tool for exerting
long-established public rights over short-term public rights
and private gains;
v.
Precautionary principle has been accepted as a part of the
law of the land. A conjoint reading of Articles 21, 48A and
51-A(g) of the Constitution of India will show that the State
is under a mandate to protect and improve the environment
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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 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:
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“1. The right to development is an inalienable human
right by virtue of which every human person and all
peoples are entitled to participate in, contribute to, and
enjoy economic, social, cultural and political development,
in which all human rights and fundamental freedoms can
be fully realized.”
508. The right to development, thus, is intrinsically
connected to the preservance of a dignified life. It
is not limited to the idea of infrastructural
development, rather, it entails human development
as the basis of all development. The jurisprudence
in environmental matters must acknowledge that
there is immense inter-dependence 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 Others9 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 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
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Development”, the United Nations Environment
Programme has recommended the adoption of such an
approach in the following terms:
“Environmental rule of law integrates the critical
environmental needs with the essential elements of the
rule of law, and provides the basis for reforming
environmental governance. It prioritizes environmental
sustainability by connecting it with fundamental rights
and obligations. It implicitly reflects universal moral
values and ethical norms of behaviour, and it provides a
foundation for environmental rights and obligations.
Without environmental rule of law and the enforcement
of legal rights and obligations, environmental governance
may be arbitrary, that is, discretionary, subjective, and
unpredictable.”
FORESTS UNDER THE 1927 FOREST ACT
26. The concept of forest under the 1927 Forest Act appears to
be different from the concept of forest under the 1980 Forest Act. The
analysis of the provisions of both the enactments will show that their
spheres of operation are not the same though there may be some overlap.
27. The 1927 Forest Act deals with reserved forests (Chapter II),
village forests (Chapter III) and protected forests (Chapter IV). Chapter
V contains provisions which apply to forests which are not vested in the
State Government. First three categories of forests are on the lands
vesting in the State. Under the 1927 Forest Act, every forest does not
ipso facto become a reserved
forest or a protected forest. Chapter II
contains an elaborate procedure for declaring any land vested in the
State Government as a reserved forest. Only after following an elaborate
process laid down in Chapter II that a land vesting in the State Government
can be declared as a reserved forest. Once a notification is issued under
Section 20 in the official gazette declaring a particular land as a reserved
forest, prohibitions contained in Sections 26 of the 1927 Forest Act apply.
Section 26 reads thus:
“26. Acts prohibited in such forests.–(1) Any person who–
(a) makes any fresh clearing prohibited by section 5, or
(b) sets fire to a reserved forest, or, in contravention of any
rules made by the State Government in this behalf, kindles any
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fire, or 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-
(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.
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(3) Whenever fire is caused willfully or by gross negligence in a
reserved forest, the State Government may (notwithstanding that
any penalty has been inflicted under this section) direct that in
such forest or any portion there of the exercise of all rights of
pasture or to forest produce shall be suspended for such period as
it thinks fit.
 (emphasis added)
In the context of clause (a) of Sub-Section (1) of Section 26,
Section 5 of the 1927 Forest Act is also relevant which reads thus:
“5. Bar of accrual of forest-rights.-After the issue of a
notification under section 4, no right shall be acquired in or over
the land comprised in such notification, except by succession or
under a grant or contract in writing made or entered into by or on
behalf of the Government or some person in whom such right
was vested when the notification was issued; and no fresh
clearings for cultivation or for any other purpose shall be
made in such land except in accordance with such rules as
may be made by the State Government in this behalf.”
 (emphasis added)
28. There is a power vested in the State Government under Section
28 to assign to any village community the rights of the State Government
over any land which has been constituted as a reserved forest. Once
this power is exercised in respect of a reserved forest, it becomes a
village forest.
29. Under Chapter IV of the 1927 Forest Act, there is a power
vested in the State
Government to declare any forest land or waste-land
vested in it, which is not included in a reserved forest, as a protected
forest. The consequences of a land being declared as a protected forest
are not as stringent as the consequences of the declaration of a land as
a reserved forest. Sections 30 and Section 33 are relevant for that
purpose, which read thus:
“30. Power to issue notification reserving trees, etc.–The
State Government may, by notification in the Official Gazette,
(a) declare any trees or class of trees in a protected forest to
be reserved from a date fixed by, the notification;
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(b) declare that any portion of such forest specified in the
notification shall be closed for such term, not exceeding thirty
years, as the State Government thinks fit, and that the rights of
private persons, if any, over such portion shall be suspended
during such terms, provided that the remainder of such forest
be sufficient, and in a locality reasonably convenient, for the
due exercise of the right suspended in the portion so closed; 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;
(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;
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(g) permits cattle to damage any such tree;
(h) infringes any rule made under section 32,
shall be punishable with imprisonment for a term which may
extend to six months, or with fine which may extend to five
hundred rupees, or with both.
(2) Whenever fire is caused wilfully or by gross negligence in
a protected forest, the State Government may, notwithstanding
that any penalty has been inflicted under this section, direct
that in such forest or any portion thereof the exercise of any
right of pasture or to forest-produce shall be suspended for
such period as it thinks fit.”
 (emphasis added)
30. Chapter V of the 1927 Forest Act applies to forests or waste-
lands not being the property of the Government. Thus, Chapter V applies
to forests on private properties as the title of the Chapter is “Of the
control of forests and lands not being property of Government”. Sections
35 to 37 are relevant which read thus:
“35. Protection of forests for special purposes.-(1) The State
Government may, by notification in the Official Gazette, regulate
or prohibit in any forest or waste-land
(a) the breaking up or clearing of land for cultivation;
(b) the pasturing of cattle; or
(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;
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(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 sub-section (1) nor shall
any work be begun under sub-section (2), until after the issue of a
notice to the owner of such forest or land calling on him to show
cause, within a reasonable period to be specified in such notice,
why such notification should not be made or work constructed, as
the case may be, and until his objections, if any, and any evidence
he may produce in support of the same, have been heard by an
officer duly appointed in that behalf and have been considered by
the State Government.
36. Power to assume management of forests.–
(1) In case of neglect of, or wilful disobedience to, any regulation
or prohibition under section 35, or if the purposes of any work to
be-constructed 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
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land shall be acquired for public purposes, and the State
Government shall require such forest or land accordingly.”
31. Once a notification is issued by exercising the power under
sub-section (1) of Section 35, there is a complete prohibition on breaking
up or clearing forest lands for cultivation, the pasturing of cattle or clearing
of vegetation. There is a power to assume management of such private
forests by exercising the power under Section 36. There is also a power
to acquire such private land. In fact, under sub-section (2) of Section 37,
an option is given to the owner of a forest land comprised in any notification
issued under Section 35 to require the State Government to acquire such
forest land. But the owner must make a requisition at any time not less
than three months from the date of the notification or more than twelve
years from the said date.
32. Though, the 1927 Forest Act does not define the terms ‘forest’,
‘reserved forest’ and ‘protected forest’, a forest land does not become
a reserved forest unless a notification is issued under Section 20 of the
1927 Forest Act. Similarly, a forest can be declared as a protected forest
only by publishing a notification under Section 29 of the 1927 Forest Act.
CONCEPT OF FORESTS UNDER THE 1980 FOREST
ACT
33. Now, we come to the 1980 Forest Act. This is a complementary
enactment, dealing with matters concerning conservation of forests. In
its statement of
objects and reasons, it is noted that deforestation is
causing ecological imbalance and is leading to environmental deterioration.
It also notes that a widespread concern has been caused due to
deforestation taking place on a large scale in our country.
The preamble of the 1980 Forest Act recites that:-
“An Act to provide for the conservation of forests and for
matters connected therewith or ancillary or incidental thereto.”
(emphasis added)
It must be borne in mind that the 1927 Forest Act is a pre-
Constitution 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.
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The depletion of the green cover was one of the consequences of
deforestation. Cutting down forests led to environmental degradation.
Since the forests absorb carbon dioxide, its destruction considerably
affects the ability of the nature to keep emissions out of the atmosphere.
This is one of the causes of global warming. The law relating to the
environment gradually evolved during the last three decades in the light
of the Constitutional provisions and ever-increasing awareness and
growing concern about environmental degradation. Perhaps, to prevent
large-scale deforestation, the Legislature thought it fit to come out with
another legislation for protecting the forests.
34. The 1980 Forest Act came into force with effect from 25th
October 1980. It has only 5 Sections. The most important is Section 2
which reads thus:
“2. Restriction on the dereservation of forests or use of
forest land for non-forest purpose.—
Notwithstanding anything contained in any other law for the
time being in force in a State, no State Government or other
authority shall make, except with the prior approval of the
Central Government, any order directing—
(i) that any reserved forest (within the meaning of the
expression “reserved forest” in any law for the time being
in force in that State) or any portion thereof, shall cease to
be reserved;
(ii) that any forest land or any portion thereof may be used
for any “non-forest” purpose.
[(iii) that any forest land or any portion
thereof may be
assigned by way of lease or otherwise to any private person
or to any authority, corporation, agency or any other
organization not owned, managed or controlled by
Government;
(iv) that any forest land or any portion thereof may be cleared
of trees which have grown naturally in that land or portion,
for the purpose of using it for reafforestation.]
[Explanation—For the purposes of this section non-forest purpose
means the breaking up or clearing of any forest land or portion
thereof for
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing
plants, horticultural crops or medicinal plants;
(b) any purpose other than reafforestation,
but does not include any work relating or ancillary to conservation,
development and management of forests and wild life, namely,
the establishment of check-posts, fire lines, wireless
communications and construction of fencing, bridges and culverts,
dams waterholes, trench marks, boundary marks, pipelines or other
like purposes.]
[emphasis added]
35. Section 2 overrides all the laws applicable to a particular State
which will include not only the laws of that particular State but also the
relevant Central laws applicable to that particular State. Clause (i) of
Section 2 applies to a reserved forest within the meaning of any law for
the time being in force in that State. Clauses (ii), (iii) and (iv) of Section
2 apply to “any forest land”. As clause (i) specifically refers to a reserved
forest within the meaning of any law in force, it is obvious that clauses
(ii), (iii) and (iv) apply to any other forest, whether or not recognized or
declared as such under any law in force in that State. Hence, clauses
(ii), (iii) and (iv) of Section 2 apply to any forest land which may not be
necessarily a reserved forest or a protected forest or a private forest
governed by Chapter V under the 1927 Forest Act. Restrictions imposed
by Section 2 (except clause (i)
thereof) apply to every forest land in
respect of which no declarations have been made either under the 1927
Forest Act or any other law relating to the forests in force in that State.
36. Before we deal with the concept of a forest under the 1980
Forest Act, we must note here that this enactment does not provide for
an absolute prohibition on the use of any forest land or a part thereof for
any non-forest purposes. The State Government or any other authority
can always permit the use of any forest land or any portion thereof for
non-forest purposes only with the prior approval of the Central
Government. In a sense, this enactment provides for permissive use of
forest land for non-forest activities with the prior approval of the Central
Government. Therefore, the owner of a private land which is a forest
within the meaning of Section 2 can convert its use for non-forest purposes
only after obtaining requisite permission of the State Government or
concerned competent authority. However, the State Government or the
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competent authority, as the case may be, cannot permit such use for
non-forest activities without obtaining prior approval from the Central
Government. This provision has been made to check further depletion
of already depleted green cover and to ensure that only such non-forest
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 non-forest use of forest
lands. While exercising the power to approve non-forest use, the Central
Government is under a mandate to keep in mind the principles of
sustainable development as evolved by this Court including in its decision
in the case of Rajeev Suri8. The embargo imposed by Section 2 ensures
that the development and use of a forest land for non-forest use is
governed by the principle of sustainable development. In a sense, Section
2 promotes the development work on forest land only to the extent it can
be sustained while
alleviating environmental concerns. The power given
to the Central Government under Section 2 must be exercised by adopting
scientific and consistent yardsticks for applying the principles of
sustainable development.
38. Now, coming to the meaning of “forest” or “any forest land”
covered by Section 2, this Court in 1997 Godavaraman’s case1 has
explained the legal position. Paragraphs 3 and 4 of the said decision read
thus:-
“3. It has emerged at the hearing, that there is a misconception in
certain quarters about the true scope of the Forest Conservation
Act, 1980 (for short “the Act”) and the meaning of the word
“forest” used therein. There is also a resulting misconception about
the need of prior approval of the Central Government, as required
by Section 2 of the Act, in respect of certain activities in the forest
area which are more often of a commercial nature. It is necessary
to clarify that position.
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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4. The Forest Conservation Act, 1980 was enacted with a view
to check further deforestation which ultimately results in ecological
imbalance; and therefore, the provisions made therein for the
conservation of forests and for matters connected therewith, must
apply to all forests irrespective of the nature of ownership or
classification thereof. The word “forest” must be understood
according to its dictionary meaning. This description covers
all statutorily recognised forests, whether designated as
reserved, protected or otherwise for the purpose of Section
2(i) of the Forest Conservation Act. The term “forest land”,
occurring in Section 2, will not only include “forest” as
understood in the dictionary sense, but also any area
recorded as forest in the Government record irrespective
of the ownership. This is how it has to be understood for
the purpose of Section 2 of the Act. The provisions enacted
in the Forest Conservation Act, 1980 for the conservation
of forests and the matters connected therewith must apply
clearly to all forests so understood irrespective of the
ownership or classification thereof. This aspect has been made
abundantly clear in the decisions of this Court in Ambica Quarry
Works v. State of Gujarat [(1987) 1 SCC 213], Rural Litigation
and Entitlement Kendra v. State of U.P. [1989 Supp (1) SCC
504] and recently in the order dated 29-11-1996 (Supreme Court
Monitoring Committee v. Mussoorie Dehradun
Development
Authority [ WP (C) No 749 of 1995 decided on 29-11-1996]).
The earlier decision of this Court in State of Bihar v. Banshi Ram
Modi [(1985) 3 SCC 643] has, therefore, to be understood in the
light of these subsequent decisions. We consider it necessary to
reiterate this settled position emerging from the decisions of this
Court to dispel the doubt, if any, in the perception of any State
Government or authority. This has become necessary also because
of the stand taken on behalf of the State of Rajasthan, even at this
late stage, relating to permissions granted for mining in such area
which is clearly contrary to the decisions of this Court. It is
reasonable to assume that any State Government which has failed
to appreciate the correct position in law so far, will forthwith
correct its stance and take the necessary remedial measures
without any further delay.”
[emphasis added]
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Thus, according to the aforesaid decision, Section 2 applies to
three categories of forests:
i.
Statutorily recognized forests such as reserved or protected
forests to which clause (i) of Section 2 is applicable;
ii.
The forests as understood in accordance with dictionary
sense and
iii.
Any area recorded as a forest in Government records.
So far as the first category of forests is concerned, it poses no
difficulty as the forests under the said category covered by Clause (i) of
Section 2 are statutorily recognized forests.
39. It is the second category which poses some difficulty. As the
object of Section 2 of the 1980 Forest Act is to ensure that only sustainable
growth/development takes place on forest lands. The need for giving a
wider meaning to “forest” or “forest land” contemplated by the 1980
Forest Act can be well understood and justified. Moreover, the object of
the 1980 Forest Act is to prevent ecological imbalance resulting from
deforestation. The provision is aimed at protecting inter-dependence
between the right to development of an individual and the right to the
natural environment of the public at large. The Legislature has used the
words “any forest” in Clauses (ii) to (iv) of Section 2 after referring to
the reserved forests in Clause (i) of Section 2. The intention is to bring
all the forests, whether covered by the 1927 Forest Act or not, within the
sweep of the 1980 Forest Act. A dictionary always contains the meaning
of the words as
they are understood by people for generations. It contains
the meaning of a word which is already legitimized. Lexicographers
include a word in the dictionary when it is used by many in the same
way. Therefore, forest as understood by its dictionary meaning is covered
by Section 2.
40. Hence, the question is what is the dictionary meaning of the
word ‘forest’. Most of the well-known dictionaries are more or less
consistent when it comes to the meaning of the word ‘forest’. The
erstwhile Nagpur High Court in the case of Laxman Ichharam v. The
Divisional Forest Officer, Raigarh10 made an attempt to define
‘forests’ by referring to dictionary meaning of the word ‘forest’ in the
Oxford English dictionary. Paragraph 13 of the said decision reads thus:
10 AIR 1953 Nagpur page 51
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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“13. The term ‘forest’ has not been defined anywhere in the Forest
Act. In the absence of such a definition the word ‘forest’ must be
taken in its ordinary dictionary sense. The Shorter Oxford
English Dictionary, Vol.I, gives the following meaning to it:
‘1. An extensive tract of land covered with trees and undergrowth,
sometimes intermingled with pasture……….
2. Law. A woodland district, usually belonging to the king, set
apart for hunting wild beasts and game etc.,………
3. A wild uncultivated waste.”
The Cambridge dictionary defines a forest as under:
“a large area of land covered with trees and plants usually
larger than a wood, or the trees and plants themselves.”
Merriam-Webster dictionary defines a forest as under:-
“1
: a dense growth of trees and underbrush covering large
tract
2
: a attract of wooded land in England formerly owned by
the sovereign and used for game
3
: something resembling a forest especially in profusion or
lushness.”
Therefore, when we consider the meaning of a forest or forest
land within the meaning of Clauses (ii) to (iv) of Section 2, it has to be a
large or extensive tract of land having a dense growth of trees, thickets,
mangroves etc. A small isolated plot of land will not come within the
ambit of Clauses (ii) to (iv) of Section 2 merely because there are some
trees or thickets thereon, as opposed to extensive tract of land covered
with dense growth of trees and underbrush or plants
resembling a forest
in profusion or lushness.
41. If a land is shown as a forest in Government records, it will be
governed by Section 2. A Government record is a record maintained by
its various departments. A Government record is always made after
following a certain process. Only the entries made after following due
process can be a part of any Government record. Government records
will include land or revenue records, being statutory documents. For the
same reason, it will also include the record of the forest department.
After all, the forest department is the custodian of forests. It is this
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department of the State which is under an obligation to protect the forests
for upholding the constitutional mandate. Further, it is this department
which identifies the forest lands and maintains a record. Therefore, the
record maintained by the Forest Department of forest lands after duly
identifying the forest lands will necessarily be a Government record.
42. Whether a particular land is a ‘forest land’ within the meaning
of Clauses (ii) to (iv) of Section 2 of the 1980 Forest Act, is a question
which is required to be decided in the facts of each case in the light of
the aforesaid parameters.
43. Clause (i) of Section 2 mandates that no reserved or declared
forest should be divested of its status by the State Government without
prior approval of the Central Government. The effect of Clause (i) is
that the State Government cannot exercise the power under Section 27
of the 1927 Forest Act of declaring that a particular land will cease to be
a reserved forest unless there is prior approval from the Central
Government. The test for the grant of prior approval which we have laid
down above will also apply to such prior approval. In this background,
we proceed to discuss the issue which we have been called upon to
decide in this group of cases.
THE IMPACT OF THE NOTIFICATIONS/ORDERS
ISSUED UNDER PLPA
44. PLPA was published in the Government Gazette of Punjab on
15th November 1900. PLPA was brought into force from that very day.
A photocopy of the
proceedings of the Council of the Lieutenant Governor
of Punjab along with a photocopy of the Gazette dated 15th November
1900 has been placed on record. Reliance was placed on the address of
Hon’ble Mr H.C. Fanshawe while tabling the Bill of PLPA. His address
reflects the intention of the legislature. The proceedings record that:
“The Hon’ble Mr. Fanshawe moved for leave to introduce a Bill
to provide for the better preservation and protection of certain
portions of the territories of the Punjab situate within or adjacent
to the Siwalik Mountain range or affected or liable to be affected
by the action of streams and torrents, such as are commonly called
chos flowing through or from, or by the deboisement of forests
within, that range.”
Mr. Fanshawe in his address, further notes that prior to 1852, the
waste-lands of Siwaliks were well protected by trees and bushes and
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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grass. He further stated that grass and trees on the hillsides have been
largely destroyed. He, therefore, stated that legislative action is required
to be taken to check the evils in question. In the Preamble of PLPA, as
originally enacted, it is stated thus :
“Act to provide for the better preservation and protection of
certain portions of the territories of the Punjab situate within
or adjacent to the Siwalik mountain range or affected or
liable to be affected by the deboisement of forests within
that range, or by the action of streams and torrents, such as are
commonly called chos flowing through or from it.”
 [emphasis added]
45. The Preamble specifically refers to the deboisement of the
forests. The dictionary meaning of the word “deboisement” is
“deforestation”. Thus, the object of PLPA is also to protect the territories
likely to be affected by deforestation. It is argued that PLPA has been
enacted essentially for the conservation of sub-soil water or the prevention
of erosion and it has nothing to do with forests. Deforestation is one of
the accepted and recognized causes of erosion of soil. There is an article
published on the website of the World Wildlife Fund. The article deals
with deforestation and recognizes it as a cause of soil erosion. The relevant
portion of the said article reads thus:
“Deforestation
Without plant cover, erosion can occur and sweep the land
into rivers. The agricultural plants
that often replace the
trees cannot hold onto the soil and many of these plants,
such as coffee, cotton, palm oil, soybean and wheat, can
actually worsen soil erosion. And as land loses its fertile soil,
agricultural produces move on, clear more forest and continue
the cycle of soil loss.”
(emphasis added)
Thus, one of the objects of PLPA undoubtedly appears to be the
protection and preservation of forests as it is one of the measures for
preventing erosion of soil. Significantly, Clause (c) of Section 2 of PLPA
provides that the expressions, ‘tree’, ‘timber’, ‘forest-produce’ and ‘cattle’
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shall have the same meaning which is assigned in Section 2 of the 1927
Forest Act.
46. The material Sections in PLPA are Sections 3 to 7. Firstly, we
are dealing with Section 3, which reads thus:
“3. Notification of areas— Whenever it appears to the Provincial
Government that it is desirable to provide for the conservation of
sub-soil water or the prevention of erosion in any area subject to
erosion or likely to become liable to erosion, such Government
may by notification make a direction accordingly.”
Section 3 enables the State Government to notify an area subject
to erosion or likely to become liable to erosion. When it appears to the
State Government that it is desirable to provide for the conservation of
sub-soil water or the prevention of erosion in any area subject to erosion
or likely to become liable to erosion, the State Government may by a
notification issue a direction accordingly. By the inclusion of any area in
a notification under Section 3, per se, there are no constraints or
restrictions imposed on the use of the lands. There is nothing in Section
3 to suggest that the power to issue notification can be exercised
necessarily in respect of forest lands. The lands covered by the
notification may also include non-forest lands. However, in respect of
the areas notified under Section 3, the State Government can exercise
the powers under Section 5A. Section 5A reads thus:
“5-A. Power to require execution of works and taking of
measures.— In
respect of areas notified under section 3
generally or the whole or any part of any such area, the Provincial
Government may, by general or special order, direct—
(a) the levelling, terracing, drainage and embanking of fields;
(b) the construction of earth-works in fields and ravines;
(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
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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Government, be necessary for carrying out the purposes of this
Act.”
Before the amendment made in the year 1926, Sections 4 and 5
empowered the State Government to pass general or special orders
providing for regulations, restrictions and prohibitions as mentioned in
the said sections either temporarily or permanently. However, by the
1926 amendment, the word ‘permanently’ has been deleted. Sections 4
and 5 of PLPA, as they stood before the 2019 Amendment Act, read
thus:
“4. Power to regulate, restrict or prohibit, by general or
special order, within notified areas, certain matters.-In
respect of areas notified under section 3 generally or the whole or
any part of any such area, the Provincial Government may, by
general or special order temporarily regulate, restrict or prohibit-
(a)
the clearing or breaking up or cultivating of land not
ordinarily under cultivation prior to the publication of
the notification under section 3;
(b)
the quarrying of stone or the burning of lime at places
where such stone or lime had not ordinarily been so
quarried or burnt prior to the publication of the
notification under section 3;
(c)
the cutting of trees or timber, or the collection or
removal or subjection to any manufacturing process,
otherwise than as described in clause (b) of this sub-
section of any forest-produce other than grass, save
for bonafide domestic or agricultural purposes of
rightholder in such area;
(d)
the
setting on fire of trees, timber or forest produce;
(e)
the admission, herding, pasturing or retention of sheep, goats
or camels;
(f)
the examination of forest-produce passing out of any such
area; and
(g)
the granting of permits to the inhabitants of towns and
villages situate within the limits or in the vicinity of any
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such area, to take any tree, timber or forest produce for
their own use therefrom, or to pasture sheep, goats or camels
or to cultivate or erect buildings therein and the production
and return of such permits by such persons.
5. Power, in certain cases to regulate, restrict or prohibit,
by special order within notified areas, certain further
matters. - In respect of any specified village or villages, or part
or parts thereof, comprised within the limits of any area notified
under section 3, the Provincial Government may, by special order,
temporarily regulate, restrict or prohibit-
(a)
the cultivating of any land ordinarily under cultivation prior
to the publication of the notification under section 3;
(b)
the quarrying of any stone or the burning of any lime at
places where such stone or lime had ordinarily been so
quarried or burnt prior to the publication of the notification
under section 3;
(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 the Writ Petitions to any order issued
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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under Section 5 of PLPA. Even the NGT in the impugned orders has
relied upon only the special orders under Section 4. Therefore, we are
confining our discussion to the question whether the lands covered by
special orders issued under Section 4 of PLPA are forest lands within
the meaning of the 1980 Forest Act. When an order is issued under
Section 4 in respect of a specifically identified area which is a part of a
larger area notified under Section 3 for imposing any of the specific
prohibitions or restrictions provided in Section 4, such an order can be
termed as a special order under Section 4. Section 3 of PLPA
contemplates the issuance of a notification in respect of a larger area
when it is desirable to provide for the conservation of sub-soil water or
prevention of erosion. When the State Government is satisfied that
deforestation of a forest area forming part of a larger area notified under
Section 3 is likely to lead to erosion of soil, the power under Section 4
can be exercised. Various clauses of sub-section (4) refer to trees, timber,
forest produce and cattle. Clause (c) of Section 2 of PLPA specifically
provides that the said words shall have the meaning severally assigned
to these expressions in Section 2 of the 1927 Forest Act. Clause (a) of
Section 4 empowers the State Government to restrict or prohibit clearing
or breaking up or cultivating of land not ordinarily under cultivation prior
to the
publication of the notification under Section 3. In the context of
Clause (a) of Section 4, we may note here that Clause (a) of sub-section
(1) of Section 26 read with Section 5 of the 1927 Forest Act prohibits
clearing of a reserved forest for cultivation. Sub-section (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 sub-section (1) of
Section 26 of the 1927 Forest Act prohibits breaking up or clearing any
land forming a part of a reserved forest for cultivation or for any other
purpose. Clause (g) of Section 4 of PLPA empowers the State
Government to prohibit or prevent quarrying of stones or burning of lime
at places where such stones or lime had not ordinarily been so quarried
or burnt prior to the notification issued under Section 3. Similar are the
restrictions imposed by clause (g) of sub-section (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
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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 sub-section (1) of Section 26 of the
1927 Forest Act. Clause (d) of Section 4 of PLPA empowers the State
Government to prohibit the setting on fire of trees, timber or forest
produce. Such restriction is also found in clauses (b) and (f) of sub-
section (1) of Section 26 in respect of a reserved forest. Clause (f) of
Section 4 empowers the State Government to regulate, restrict or prohibit
the admission, herding, pasturing or retention of sheep, goats or camels.
Clause (d) of sub-section (1) of Section 26 of the 1927 Forest Act imposes
a similar restriction on the lands forming a part of a reserved forest.
Clauses (f) and (g) of Section 4 of PLPA refer to forest produce
generated out of any such area notified under Section 4. As noted earlier,
PLPA incorporates the definition of “forest produce” in the 1927 Forest
Act in PLPA by reference. Sub-Section (4) of Section 2 of the 1927
Forest Act defines “forest produce” which reads thus:
“2(4)”forest-produce” includes -
(a) the following whether found in, or brought from, a forest or
not, that is to say:-
timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural
varnish, bark, lac, mahua flowers, mahua seeds, kuth and
myrabolams, and
(b) the
following when found in, or brought from a forest, that is
to say –
(i) trees and leaves, flowers and fruits, and all other parts or produce
not hereinbefore mentioned, of trees,
(ii) plants not being trees (including grass, creepers, reeds and
moss), and all parts or produce of such plants,
(iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey
and wax, and all other parts or produce of animals, and
(iv) peat, surface soil, rock and minerals (including lime-stone,
laterite, mineral oils, and all products of mines or quarries).”
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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Thus, it appears to us that various restrictions, regulations and
prohibitions in different clauses in Section 4 of PLPA can be invoked
necessarily in respect of forest lands. Whereas, Section 3 of PLPA
contemplates the issuance of a general notification in respect of any
area subject to erosion or likely to become liable to erosion when it
appears to the State Government that it is desirable to provide for the
conservation of sub-soil water or the prevention of erosion. As noted
earlier, one of the objectives of PLPA is to prevent erosion of land which
may be caused due to deforestation. When the State Government is
satisfied that as a result of deforestation or impending deforestation,
erosion of a particular area out of the area notified under Section 3 is
likely to take place, the State Government may exercise the power under
Section 4 by issuing a special order. The reason is that the measures
provided in Section 4 are intended to prevent deforestation of a forest
area. Section 3 of PLPA contemplates the issuance of a notification in
respect of a larger area when it is desirable to provide for the conservation
of sub-soil water or prevention of erosion. When the State Government
is satisfied that deforestation of a forest area forming part of a larger
area notified under Section 3 is likely to lead to erosion of soil, the power
under Section 4 can be exercised. Therefore, it follows that the specific
land in
respect of which a special order under section 4 of PLPA has
been issued will have all the trappings of a forest governed by clauses
(ii) to (iv) of Section 2 of the 1980 Forest Act. Therefore, in respect of
the lands covered by special orders under Section 4 of PLPA, the State
Government or authorities of the State can permit diversion to non-forest
use only after prior approval of the Central Government is granted in
accordance with Section 2 of the 1980 Forest Act.
48. Clause (a) of Section 5 of PLPA provides for restricting or
prohibiting the cultivation of any land ordinarily under cultivation prior to
the publication of the notification under Section 3. However, the power
under Section 5 to restrict or prohibit can be exercised in a case where
prior to the publication of the notification under Section 3, quarrying of
any stone or the burning of any lime was being made. Thus, there is a
marked difference between the language used in Section 4 and that in
Section 5 of PLPA. However, as noted earlier, it is not necessary for us
to decide the issue whether a land forming a part of a special notification
under Section 5 of PLPA ipso facto becomes a forest under the 1980
Forest Act.
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THE EFFECT OF THE STAND TAKEN BY THE STATE
GOVERNMENT IN PLEADINGS / AFFIDAVITS AND
CORRESPONDENCE.
49. At this stage, it is relevant to note that on 08th December 1996
an affidavit was filed by Mr. Banarsi Dass, Principal Chief Conservator
of Forests of the State of Haryana in Civil Writ Petition No.171 of 1996.
The said civil writ petition was dealt with by this Court in the 1997
Godavarman’s case1 in its judgment dated 12th December 1996. The
stand taken in the said affidavit was that the State was treating the lands
notified under Sections 4 and 5 of PLPA as forests. It must be noted
here that a similar stand was taken by the State Government even in the
subsequent correspondence/ affidavits/pleadings. In the letter dated 21st
December 1992 addressed by the Deputy Inspector General of Forests
of the Government of India to the Principal Chief Conservator of Forests,
the Government of Haryana, it was stated that the area notified under
Sections 4 and 5 of the PLPA has been recorded as forest in the
Government record. As stated in the said letter, this factual position has
been noted on the basis of what is stated in the letter dated 09th December
1992 addressed by the Principal Chief Conservator of Forests of the
Government of Haryana. Record of Discussions in a meeting of Principal
Chief Conservator of Forests held under the Chairmanship of Director
General of Forests and Special Secretary (DGF & SS) of the Government
of India on 25th August 2014 is
placed on record along with a note
submitted by Shri A.D.N. Rao, the learned counsel. The meeting was
attended by various officers of the Ministry of Environment, Forests and
Climate Change as well as the Principal Chief Conservator of Forests
of Government of Haryana - Shri C.R. Jojriwal. It is noted in paragraph
2 that subject to the approval of this Court various areas stated therein
shall be mandatorily treated as a ‘forest’ for the purposes of the 1980
Forest Act. The lands which were to be mandatorily treated as forests
were divided into two categories. Category (A) was of Recorded Forest
Areas and Category (B) of Forests by Dictionary meaning. In clause
(c) of Category (A), it is provided that the areas covered by the
notifications issued under Sections 4 and 5 of PLPA shall be treated as
forests for the purposes of the 1980 Forest Act. The stand of the
Government of Haryana is also reflected in the decision of the Division
Bench of Punjab and Haryana High Court in the case of Vijay Bansal7.
The said decision, rendered on 15th May 2009, proceeded to hold that
the areas forming parts of notification under Section 3 of PLPA in respect
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of which restrictions have been imposed under Sections 4 and 5 of PLPA
are to be treated as forest lands for the purposes of 1980 Forest Act. An
application being C.M. No.12170 of 2009 was filed in the said case by
the State of Haryana seeking modification of the judgment. Prayer 5 of
the said application is relevant which is reproduced for convenience.
“(5) It has been accordingly prayed that only those lands where
clearing, breaking-up or cultivation has been prohibited by a
special order notified under Section 4(a) or 5(a) of the PLPA,
1900 may be treated as ‘forest lands’ as has been so held by
the Hon’ble Supreme Court in M.C. Mehta’s case (supra) and
not those lands in respect whereto general restrictions have
been imposed under Section 4(c) and (d) or Section 5(c) and
(d) of the PLPA, 1900.”
In the said application, there is a specific pleading that the lands
covered by the notifications under Sections 4 and 5 of PLPA were treated
as forest lands.
50. The Division Bench of the Punjab and Haryana High Court
by the order dated 04th December 2009 accepted the aforesaid prayer
and held that those lands which are covered by notifications imposing
restrictions/prohibitions under clause (a) of Section 4 and clause (a) of
Section 5 of PLPA are declared as ‘forest lands’ for the purposes of
1980 Forest Act. Thus, this was the categorical stand taken by the State
Government in the pending proceedings on oath.
51. We
may note here that the statements made on behalf of the
State Government in the letters, affidavits and pleadings cannot be
conclusive to decide the issue of the status of the lands covered by a
special notification under Section 4 of PLPA. The finding on the issue
cannot be based only on the stand taken earlier by the State Government
in the correspondence and affidavits. Independently of the stand taken
as aforesaid, on a careful analysis of Section 4 of PLPA, we have come
to a conclusion that the lands covered by the special orders under Section
4 of PLPA have all the trappings of a forest within the meaning of Section
2 of the 1980 Forest Act. Therefore, we have held that the lands covered
by the special notification under Section 4 will be forest lands within the
meaning of Section 2 of the 1980 Forest Act.
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EARLIER DECISIONS OF THIS COURT
52. The 1997 Godavarman’s case does not even refer to the
legal effect of the orders under Sections 4 and 5 of PLPA. Even the
2008 Godavarman’s case does not consider the aforesaid issue. In
paragraph 21, this Court directed that mining activity in the areas covered
by orders under Section 4 and 5 of PLPA shall be prohibited on the
ground that the said lands were recorded as forests in government records.
The 1st M.C. Mehta’s case was decided by a Bench of two Hon’ble
Judges. As can be seen from paragraph 79 of the said decision, the issue
of the legal effect of the orders under Sections 4 and 5 of PLPA very
much arose before the Bench in the context of the applicability of Section
2 of the 1980 Forest Act. However, in paragraph 82, the Bench specifically
observed that it is not necessary to decide the legal effect of the orders
under Sections 4 and 5 of PLPA. This Court relied upon only the affidavits
filed on behalf of the State Government including the affidavit of Shri
Banarasi Dass. This Court observed that the State Government cannot
take a somersault and take a stand contrary to what is stated in their
earlier affidavits. Thus, the issue which we have decided about the legal
effect of Section 4 of PLPA was not decided by this Court in the said
case. The 3rd M.C. Mehta was decided by a Bench of two Hon’ble
Judges. From the first two paragraphs of the decision, it is apparent that
this Court dealt with an application
made by M/s. R. Kant & Co. The
issue was about the contravention of the order dated 18th August 1992
under Section 4 in respect of certain lands in village Anangpur. The
Bench dealt with contention that the land notified under the said order
dated 18th August 1992 was not a forest. Even in this judgment, we find
that a closer examination was not made of the scheme of Section 4 of
PLPA and its legal effect vis-à-vis Section 2 of the 1980 Forest Act.
Even the decision of the Punjab and Haryana High Court in the case of
Vijay Bansal7 does not deal with the issue of the legal effect of orders
under Sections 4 and 5 of PLPA Act.
53. The decision of a Bench of two Hon’ble Judges of this Court
in the case of B.S. Sandhu5 dealt with the order dated 12th October
2004 passed by a Division Bench of Punjab and Haryana High Court.
The appellant before this Court Mr.B.S. Sandhu had contended before
the High Court that the lands in village Karoran in District Ropar in
possession of Forest Hill Golf and Country Club, of which he was the
proprietor, were not forest lands and the lands were either agricultural
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lands or uncultivable waste lands. The High Court did not accept the
said contention and held that Village Karoran has been notified under
Section 3 of PLPA and is regulated by prohibitory directions under
Sections 4 and 5 of PLPA. Therefore, it was held that the lands in the
entire village were forests within the meaning of the 1980 Forest Act. In
paragraph 18 of the said decision, this Court held thus:
“18. It will be clear from the language of Section 3 of the PLP
Act, 1900 extracted above that for the better preservation and
protection of any local area, situated within or adjacent to
Shivalik mountain range which is liable to be affected by
deboisement of forests in that range or by the action of “cho”,
such Government may by notification make a direction
accordingly. The expression “local area” has not been defined
in the PLP Act, 1900 and may include not only “forest land”
but also other land. In Section 4 of the PLP Act, 1900 extracted
above, the local Government was empowered by general or
special order, temporarily or permanently to regulate, restrict
or prohibit various activities mentioned in clauses (a), (b), (c),
(d), (e), (f) and (g) thereof. A reading of these clauses would
show that activities such as cultivation, pasturing of sheep and
goats and erection of buildings by the inhabitants of towns and
villages situated within the limits of the area notified under
Section 3 can be regulated, restricted
or prohibited by a general
or special order of the local Government. All these activities
are not normally carried on in forests. Similarly, under Section
5 of the PLP Act, 1900, the local Government was empowered
by special order, temporarily or permanently to regulate, restrict
or prohibit the cultivating of any land or to admit, herd, pasture
or retain cattle generally other than sheep and goats. These
activities are also not normally carried on in forests.”
In paragraph 19 this Court observed thus :
“19. In our view, therefore, land which is notified under Section
3 of the PLP Act, 1900 and regulated by orders of the local
Government under Sections 4 and 5 of the PLP Act, 1900 may
or may not be “forest land”. Therefore, the conclusion of the
High Court in the impugned order that the entire land of Village
Karoran, District Ropar, which has been notified under Section
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3 of the PLP Act, 1900 and is regulated by the prohibitory
directions notified under Sections 4 and 5 thereof is “forest
land” is not at all correct in law. The basis for inclusion of the
entire area in Village Karoran, District Ropar, in the list of
forest areas in the State of Punjab pursuant to the order dated
12-12-1996 of this Court in T.N. Godavarman
Thirumulpad v. Union of India [T.N. Godavarman
Thirumulpad v. Union of India, (1997) 2 SCC 267] is legally
not correct. Similarly, the conclusion of the High Court in the
impugned order [Court on Its Own Motion v. State of Punjab,
(2004) 4 RCR (Civil) 619 : (2005) 2 ICC 16 (P&H)] that the
entire land in Village Karoran, District Ropar, having been
notified under Section 3 of the PLP Act, 1900 and being under
the regulatory regime of Sections 4 and 5 of the said Act is
“forest land” is also legally not correct.”
What is material are the observations made in paragraph 23 of
the said decision which read thus:
“23. We have also examined the two decisions of this Court
in the first and second cases of M.C. Mehta [M.C.
Mehta v. Union of India, (2004) 12 SCC 118] , [M.C.
Mehta v. Union of India, (2008) 17 SCC 294] cited on behalf
of the State of Punjab and we find that the aforesaid decisions
have been rendered in the case of Aravalli Hills in the State
of Haryana and it was held therein that as the State Forest
Department had been treating and showing the areas as
“forest”, in fact and in law, the area was
forest and non-forest
activities could not be allowed in such areas without the prior
permission of the Central Government under Section 2 of the
Forest (Conservation) Act, 1980. In these two decisions, this
Court has not enquired into the basis of inclusion of the areas
in forest by the State Forest Department nor has this Court
considered as to whether a land becomes “forest land”
by mere inclusion of the same under the notification
under Section 3 of the PLP Act, 1900. In the present case,
on the other hand, the State Government has in its affidavit
stated before this Court that the basis of inclusion of the entire
land of Village Karoran, District Ropar, in forest areas in the
records of the Forest Department of Government of Punjab
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was that the land was closed under the PLP Act, 1900 and we
have found this basis as not correct in law.”
54. The Bench has not gone into the scheme of the 1927 Forest
Act and the object sought to be achieved by PLPA. Thus, the entire
emphasis of the appellant in B.S. Sandhu’s case5 was that mere inclusion
of an area in the notification under Section 3 of PLPA will not ipso
facto lead to the conclusion that the area is a forest for the purposes of
1980 Forest Act.
55. Thus, essentially in the case of B.S. Sandhu5, this Court dealt
with a notification under Section 3 of PLPA which was applicable to the
entire village in question. Though Sections 4 and 5 are referred in the
said decision, it is not clear whether there was a special order issued
under Sections 4 in respect of the lands of Mr. B.S. Sandhu. Moreover,
the said decision overlooks that one of the objects of PLPA was to
prevent deforestation as the same may result in erosion of soil. The
Court did not notice that the restrictions provided in Section 4 show that
the same can be applied only to the lands having trappings of a forest
within the meaning of the 1980 Forest Act. The decision in the case of
B.S. Sandhu5, with great respect, does not take note of these crucial
legal and factual aspects.
THE OTHER ISSUES
56. We may note here that the petitioners in Writ Petition (Civil)
No.1031 of 2021 represented by the learned senior counsel Shri Vikas
Singh are
claiming that they are residents of Villages Anangpur, Mewla
Maharajpur and Ankhir covered by three separate orders issued on 18th
August 1992 under Section 4. A perusal of the said orders on record of
Civil Appeal No.10294 of 2013 will show that the orders are special
orders relating to only certain specific lands mentioned therein in the
schedules thereto. The lands in the schedule are specific lands described
by reference to Killa or other relevant numbers. Even the area of the
lands covered has been incorporated. The notifications do not relate to
the entire village. The same are in respect of specific lands in the said
three villages. By placing reliance on the figures quoted in the additional
affidavit of the State of Haryana and by producing certain maps, Shri
Vikas Singh, the learned senior counsel tried to contend that if the
contentions of some of the intervenors are accepted, the entire districts
of Gurugram and Faridabad will be forests within the meaning of Section
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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 
Geogra-
phical 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 
Geogra-
phical Area 
of District 
1 
2 
3 
4 
5 
6 
7 
8 
1 
Panchkula 
89800 
4310 
70476 
89800 
89800 
100.00% 
2
Ambala
157400
1613
8562
157400
157400
100.00%
3 
Yamunanagar 
176800 
2498 
72693 
176800 
176800 
100.00% 
4 
Kurushetra 
153000 
8 
0 
8 
8 
0.01% 
5 
Kaithal 
231700 
0 
0 
0 
0 
0.00% 
6
Karnal
252000
0
0
0
0
0.00%
7 
Panipat 
126800 
0 
0 
0 
0 
0.00% 
8
Sonipat
212200
1867
0
1867
1867
0.88%
9 
Rohtak 
174500 
221 
0 
221 
221 
0.13% 
10 
Jhajjar 
183400 
210 
0 
210 
210 
0.11% 
11 
Gurugram 
125800 
6821 
125800 
125800 
125800 
100.00% 
12
Faridabad
74100
5611
14610
74100
74100
100.00%
13 
Palwal 
135900 
25 
0 
135900 
135900 
100.00% 
14 
Mewat 
150700 
6432 
130677 
150700 
150700 
100.00% 
15
Mahendergarh
189900
1089
189900
189900
189900
100.00%
16 
Rewari 
159400 
971 
159400 
159400 
159400 
100.00% 
17 
Hisar 
398300 
0 
0 
0 
0 
0.00% 
18
Fatehabad
253800
0
0
0
0
0.00%
19 
Sirsa 
427700 
0 
0 
0 
0 
0.00% 
20 
Bhiwani 
328300 
62 
221299 
328300 
328300 
100.00% 
21
Charkhi Dadri
149500
0
92669
149500
149500
100.00%
22 
Jind 
270200 
0 
0 
0 
0 
0.00% 
Total (State) 
4421200 
31738 
1086086 
1739907 
1739907 
39.35% 
57. Thus, the special orders under Sections 4 and 5 in respect of
22 districts of Haryana including the districts of Gurugram and Faridabad
cover only an area of 31,738 hectare, out of the total area of 44,21,200
hectares.In at least 8 districts, not a single land is governed by special
orders under Sections 4 and 5. Hence, only about 7.1% of the total lands
in 22 districts are covered by special orders issued under Sections 4 and
5 of PLPA. Going by these figures of the lands covered by the special
orders under Section 4 and 5, the percentage of the lands covered by
special orders under Section 4 must be insignificant as compared to the
total area of the districts. Thus, the picture tried to be projected by the
petitioners and the State Government is completely misleading and
fallacious.
58. In this group of appeals, we are concerned only with the three
separate orders dated 18th August 1992 in relation to the said three
villages. A submission was canvassed that there was no notification issued
under Section 3 of PLPA covering the said three villages. It is contended
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that the requisite procedure was not followed. We may note here that it
is too late in the day to challenge the said orders after the lapse of more
than 20 years. The ground of the gross delay is itself sufficient to negative
the said challenge. The State Government cannot be called upon to show
compliance with procedural aspects for the first time after lapse of more
than 20 years. Therefore, it will not be appropriate to entertain a challenge
to the said orders on the ground of non-compliance with the procedural
provisions of Sections 6 and 7 after lapse of more than 20 years. Reliance
was placed on a notification dated 17th October 1989 issued by the State
Government under Section 5 of the Punjab Land Revenue Act, 1887.
By the said notification, the State Government excluded certain areas
from the limits of Ballabhgarh Tehsil in Faridabad District. A new Tehsil
was formed of the said excluded areas known as Faridabad Tehsil.
However, on 10th April 1992, a notification was issued under Section 3
of PLPA in respect of the entire Tehsil of Ballabhgarh. The three special
orders dated 18th August 1992 are in respect of specifically described
lands in the said three villages in Tehsil of Ballabhgarh. Therefore, apart
from the gross delay, it cannot be accepted that the special orders under
Section 4 dated 18th August 1992 were not preceded by a general order
under Section 3 of PLPA in respect of Tehsil Ballabhgarh. The
three
special orders specifically refer to a due inquiry made by the State
Government for coming to the conclusion that prohibitions contained in
the said orders are necessary for the purpose of giving effect to the
provisions of PLPA.
59. Another argument canvassed was that the said three villages
are covered by controlled areas declared under the 1971 Act as well as
a final development plan. In view of the language used by Section 2 of
the 1980 Forest Act, the said provision overrides all other laws applicable
to the State of Haryana including the Central laws. Moreover, once it is
found that the lands covered by the said three orders dated 18th August
1992 are forest lands covered by clauses (ii) to (iv) of Section 2 of the
1980 Forest Act, its status as forest lands cannot be altered unless Section
2 is followed.
60. A vague attempt was made to contend that firstly the lands
covered by special orders under Section 4 can be treated as forests
within the meaning of the 1980 Forest Act only from the date of the
respective orders and that it will continue to be a forest for a limited
duration for which the said special orders are in force. Both the arguments
do not commend us at all. An occasion for passing special orders under
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Section 4 arises when the lands in respect of which special orders are
sought to be issued, are forest lands. It is true that, to such lands, Section
2 of the 1980 Forest Act will apply from 25th October 1980 when the
same was brought into force. Once a land is covered by the sweep of
Section 2 of the 1980 Forest Act, whether the special orders under Section
4 continue to be in force or not, the lands covered by the said notifications
will continue to fall in the category of forests covered by Section 2 of the
1980 Forest Act.
THE 2019 AMENDMENT ACT
61. The State Government as well as the appellants have relied
upon the 2019 Amendment Act. Our attention was also invited to the
order dated 01st March 2019 in Writ Petition (Civil) No.4677 of 1985
(M.C. Mehta v. Union of India & Ors.). By the said order, this Court
directed that the 2019 Amendment Act shall not be acted upon without
permission of this Court. I.A.No.93600/2021 has been filed by the State
of Haryana in Writ Petition (Civil) No.4677 of 1985 seeking permission
to implement the provisions of 2019 Amendment Act. In one of our
orders passed in this group of appeals, we had observed that the said
prayer can be considered in this group itself.
62. By the 2019 Amendment Act, Section 3 has been substituted
from the date of publication of the Amendment Act in the Government
Gazette. Substituted Section 3 contemplates the State Government issuing
a preliminary notification before issuing a final
notification under Section
3. It also provides for inviting objections to the preliminary notification
and giving a hearing to the objectors. Section 3A was added which
provides that the provisions of PLPA shall not apply, amongst others, to
the lands included in the final development plans or any other town
improvement plans or schemes published under the provisions of the
said Act of 1971, the Haryana Development and Regulation of Urban
Areas Act, 1975 etc. A proviso has been added to Section 4 laying down
that the period of validity of any order issued under Section 4 shall not
exceed the period of validity of the corresponding notification under
Section 3. Section 23 was incorporated in the principal Act by the 2019
Amendment Act. It provides that the orders and notifications issued
under PLPA shall be deemed to have been amended so as to exclude
the categories of land covered under Section 3A with effect from the
date of issuance or publication of such orders or notification. Moreover,
clause (c) of sub-section (2) of Section 23 provides that after the expiry
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
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of the period stated in such orders or notifications, the regulations,
restrictions or prohibitions imposed shall cease to exist. Another important
feature of the 2019 Amendment Act is that Section 4A has been
incorporated. It provides that in respect of the areas notified under Section
3, the State Government may, in the whole or any part of such areas, by
general order temporarily regulate, restrict or prohibit the cutting of trees
and timber. Sub-section (3) of Section 4A provides that all subsisting
general orders issued under Section 4 prior to the date of commencement
of 2019 Amendment Act shall be deemed to have been issued under
Section 4A. A note appended to Section 4A clarifies that all the subsisting
general orders issued under Section 4 or notifications made thereunder
prior to the publication of the 2019 Amendment Act shall be solely for
the purpose of temporarily regulating, restricting or prohibiting felling of
trees and not for regulating any other activity or imposing restrictions or
change in the permissible land use for such area. Sub-section (2) of
Section 1 of 2019 Amendment Act is of some importance. It lays down
that the said Amendment Act shall be deemed to have come into force
from 01st November 1966 except unless expressly provided otherwise.
63. In this group of petitions, we are concerned with three special
orders under Section 4 issued on 18th August 1992 in respect of the said
three
villages. The effect of the said orders is that the lands referred to
therein are forest lands within the meaning of Section 2 of the 1980
Forest Act. Even if such orders are cancelled or amended or rescinded
or their duration comes to an end, the status of the lands covered by the
same as forest lands governed by Section 2 of the 1980 Forest Act
cannot be altered without following the due process provided therein.
Once a land is found to be a ‘forest’ within the meaning of the 1980
Forest Act, its user for non-forest purposes will be always governed by
Section 2 of the 1980 Forest Act. Secondly, clause (i) of Section 2 provides
that even in the case of a reserved forest under the 1927 Forest Act, the
State Government cannot pass an order declaring that the same shall
cease to be a reserved forest, without the prior approval of the Central
Government. Thirdly, Section 2 starts with a non obstante clause which
overrides anything contained in any other law for the time being in force
in a State which will include all State and Central legislations applicable
to the State. Therefore, prima facie, the 2019 Amendment Act enacted
by the State Legislature would be repugnant to and violative of Section
2 of the 1980 Forest Act, if construed otherwise. Hence, whether the
2019 Amendment Act is given effect or not, it will not change the status
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of the lands covered by the special orders under Section 4 of PLPA as
the said lands possess all the trappings of a forest with effect from 25th
October 1980 within the meaning of the 1980 Forest Act. Therefore, it is
not necessary for us in these petitions to deal with the issue whether the
order dated 01st March 2019 passed in Writ Petition (Civil) No.4677 of
1985 should be modified. The said prayer will have to be considered by
the Bench dealing with the said writ petition.
CONCLUSIONS AND OPERATIVE PART
64. Thus, we hold that the lands covered by the special orders
issued under Section 4 of PLPA have all the trappings of forest lands
within the meaning of Section 2 of the 1980 Forest Act and, therefore,
the State Government or competent authority cannot permit its use for
non-forest activities without the prior approval of the Central Government
with effect from 25th October 1980. Prior permission of the Central
Government is the quintessence to allow any change of user of forest or
so to say deemed forest land. We may add here that even during the
subsistence of the special orders under Section 4 of PLPA, with the
approval of the Central Government, the State or a competent authority
can grant permission for non-forest use. If such non-forest use is permitted
in accordance with Section 2 of the 1980 Forest Act, to that extent, the
restrictions imposed by the special orders under Section 4 of PLPA will
not apply in view of the language used in the
opening part of Section 2 of
the 1980 Forest Act. We also clarify that only because there is a notification
issued under Section 3 of PLPA, the land which is subject matter of
such notification, will not ipso facto become a forest land within the
meaning of the 1980 Forest Act.
65. Therefore, the lands covered by the special orders dated 18th
August 1992 issued under Section 4 of PLPA will be governed by the
orders passed by this Court in the Petition for Special Leave to Appeal
(Civil) Nos.7220-7221 of 2017. Hence, all the concerned authorities shall
take action to remove the remaining illegal structures standing on land
covered by the special orders and used for non-forest activities on the
said lands erected after 25th October 1980, without prior approval of the
Central Government, and further to restore status quo ante including to
undertake reforestation/afforestation programmes in right earnest. As
far as the lands covered by special orders under Section 5 are concerned,
we are not making any adjudication. Therefore, the authorities will have
to decide the status of the lands covered by the said orders under Section
5 on case to case basis.
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[ABHAY S. OKA, J.]
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66. To avoid any prejudice to the affected persons, we direct that
before the action of removal of the illegal structures and/or action of
stopping non-forest activities is taken in respect of the lands covered by
the special orders dated 18th August 1992 issued under Section 4 of
PLPA, the concerned competent authority shall afford an opportunity of
being heard to the affected persons and conclude such proceedings finally
not later than three months from today and submit compliance report in
that regard within the same time.
67. Writ Petition (Civil) Nos. 1008 and 1031 of 2021 stand disposed
of in above terms. Civil Appeal Nos. 10294 of 2013, 8454 of 2014, 8173
of 2016 and 11000 of 2013 also stand disposed of in above terms and the
orders impugned passed by the NGT stand modified accordingly.
68. As regards Writ Petition (Civil) No.1320 of 2021, the same
will be governed by the directions issued in Petitions for Special Leave
to Appeal (Civil) No.7220-7221 of 2017 for rehabilitation of the eligible
occupants. The petitioners can always move the concerned authority
for that purpose. Writ Petition (C) No.1320 of 2021 be disposed of
accordingly.
69. There will be no order as to costs.
Ankit Gyan
Appeals and Writ petitions disposed of.
(Assisted by : Aarsh Choudhary, LCRA)