TaxTMI 
TaxTMI 
2009 (3) TMI 1087
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...., Upanishadas, Smritis etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main moto of social life is to live in harmony with nature. It was regarded as a sacred duty of every one to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora fauna and every species of life. 3. With a view to make provision for better protection and management of forests in the State, Maharaja of Travancore enacted "The Travancore Forest Regulations of 1068" [for short, "the Regulations"]. Clause 3 of the Regulations provided that Diwan of the State could, with the sanction of Maharaja constitute any land at the disposal of Government a reserved forest after following the procedure prescribed in Clause 4, i.e., publication of notification in Government Gazette containing proposal for declaring the particular land as a reserved forest, holding of inquiry by the Forest Settlement Offic....
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....of the erstwhile States, large tracts of reserved forest/forest land were unauthorisedly occupied/encroached and used for non-forest purposes. After formation of the new State, the Government took a serious view of the unauthorised occupation/encroachment of forest land and decided that encroachments made after 1.4.1957 will be removed. However, that decision remained on papers and nothing appears to have been done to remove unauthorised occupation/encroachments of forest land despite the fact that the legislature of the new State enacted the Kerala Forest Act, 1961 [for short, "the 1961 Act"] for protecting forests. After about four years, the State Government constituted range based committees for demarcation of encroached portions of forest land. The State Government also constituted a committee under the chairmanship of Shri K.P. Radhakrishna Menon, Special Collector (Forest Conservation) for preparing a scheme for protection of valuable forests in the State and also for suggesting solution to the problem created due to settlement of large number of persons in the areas declared as reserved forests. After considering the report of the committee, the State Government i....
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....orest Environment & Wild Life (C) Department. No. 51289/FGI/83/AD Trivandmm Dated: 26.6.1986 From The Agricultural Production Commissioner & Secretary (Agriculture & Forests) To, The Secretary to Government of India, Ministry of Forest and Environment, Department of Forest and Wild Life, Government of India, Krishi Bhavan, New Delhi. Sir, Sub: Forests-Assignment of Forest Lands which have already come under Agricultural occupations-clearance under Forest Conservation Act requested. Several forest areas in Kerala came to be exposed to human occupation particularly since 1956, primarily due to the very heavy pressure of population and secondarily due to Governmental programmes like colonization schemes, grow more food schemes, arable land scheme, hydro power projects, plantations etc. In the sixties and seventies, the perspective was one of providing land based employment to landless people. It was on account of this that some of the above schemes came under implementation. Forest lands were transferred for non forest purposes. Pressure built up for further expansion into forest areas adjoining converted lands. Government did carry out evictions of unauthorised encroac....
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.... also very authentic having been prepared after following the statutory formalities under the Survey and Boundaries Act including detailed field survey. So far occupations in Udumpanchola taluk have not been subjected to further joint field verification referred to above. The lands proposed to be assigned have actually ceased to be forest lands years back. They are forest lands only on record. Townships with colleges, Schools, hospitals, etc. have come up in many of these places. These lands cannot be restored to their original status of vegetation or ecology and for that purpose thousands of families occupying these areas cannot be evicted. So far as the areas other than Udumpanchola taluk are concerned, extent of occupations has been assessed only on the basis of ocular estimation. Permanent demarcation of the line of control through a regular survey will have to be done before the occupants are assigned lands. In the occupied lands, there is some residual tree growth of very sparse distribution. Such residual tree growth can be salvaged before title deeds are given. The Chief Conservator of Forests has recommended that for compensatory afforestation revenue land will have to....
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....ation of pre-1.1.1977 encroachments in Kerala subject to the fulfillment of following conditions, (i) Ground verification & demarcation of area to be regularized in favour of individual encroachers shall be done by the State Government. (ii) Regularisation of encroachments shall not be done in favour of encroachers otherwise found eligible either in the midst of the forest area or in Periyar Tiger (sic) shifted on the fringe of the forests, for which excess area available for eligible encroachers may be utilized. (iii) Detailed map showing demarcation of the area to be regularized in favour of individual encroachers shall be got prepared. (iv) Regularisation of encroachments in favour of eligible encroachers shall not be done in excess of assignment permissible as per Kerala Land Assignment Rules, 1988. The excess area with such encroachers shall be taken back from the possession of the encroachers and shall be utilized for shifting eligible encroachers from the midst of the forest areas or from Periyar Tiger Reserve area. (v) A comprehensive scheme for soil conservation and agro forestry shall be prepared and implemented as a time bound programme to check accelerated soil ero....
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....yams (title deeds) issued in respect of forest land without obtaining approval of the Central Government should be quashed. In the affidavit filed on behalf of the appellant before the High Court, it was claimed that regularization of unauthorised occupation/encroachments of forest land will adversely affect the environment and wildlife and ultimately the population of the State. 9. In the counter affidavit filed on behalf of the State Government, it was averred that due to pressure of population and due to implementation of Colonisation Scheme, Arable Land Assignment Scheme, Grow More Food Programme, Hydro-Electric Irrigation projects, plantations etc. considerable extent of forest lands in the State had been exposed to human habitation and such forest lands had been actually used for non-forest purposes and converted into populated areas with structures and improvements; that in those days people were not conscious of the fact that the maintenance of forest was required for ecological balance and substantial extent of forest lands had been transformed into agricultural holdings and human settlements and there is no scope for reverting them into forests; that because of high dens....
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....nounced in a public function organized in Nadumkandom in Idukki district on 20.3.1993. The State Government's policy decision was taken and declared by the then Chief Minister of the State to regularise the encroachments made prior to 1.1.1977 and action was pursued as per the guidelines issued by the Government of India for regularisation of encroachments. The cut off date was decided after careful consideration of the population pressure on forest land and the need for protecting the forest land. Ext.P-19 rules are notified for assignment of the encroached land after obtaining sanction and those rules are valid. These rules are framed for speedy regularisation on getting concurrence from Government of India. No new forest lands are assigned for creation of township. There is no cause for attracting the proceedings under Article 226 of the Constitution. No prejudice is caused to the petitioner and hence the petitioner is not entitled to claim relief against the respondents. 10. In a separate affidavit filed on behalf of the Central Government, it was averred that approval was accorded to the diversion of forest land measuring 28,588.159 hectares because the State Government h....
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....ion made by the Full Bench of the High Court that the 1980 Act is prospective and is not applicable to the cases involving use of forest land for non-forest purpose prior to 25.10.1980 is ex facie erroneous and is liable to be set aside, else the same is likely to be misused by the State Governments for regularizing the encroachments of forest land made prior to 25.10.1980 without seeking prior approval of the Central Government. He further argued that the State Government should not be permitted to regularize unauthorised occupation/encroachment of 10,000 hectares of forest land made after 1.1.1977 without obtaining prior approval of the Central Government and the latter should not give such approval else the encroachment of forest land will continue. In the end, learned Counsel argued that a mandamus be issued to the Central Government to ensure total compliance of the conditions incorporated in letter dated 23.3.1993. 13. Shri Amarendra Sharan, learned Additional Solicitor General argued that in view of non obstante clause contained in Section 2 of the 1980 Act, the Government of Kerala could not have assigned any part of forest land or reserved forest to unauthorised occupants....
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..... Sections 3, 4, 7 and 22 of the Kerala Forest Act, 1961 (for short 'the 1961 Act), Sections 2, 3 and 3A of the 1980 Act and the relevant portions of the policy framed by the Government of India for regularization of encroachments on forest land, which have bearing on the decision of this appeal, read as under: Kerala Forest Act, 1961 3. Power to reserve forests.- The Government may constitute any land at the disposal of the Government a Reserved Forest in the manner hereinafter provided. 4. Notification by Government.- Whenever it is proposed to constitute any land a Reserved Forest, the Government shall publish a notification in the Gazette.- (a) specifying as nearly as possible, the situation and limits of such land; (b) declaring that it is proposed to constitute such land a Reserved Forest; and (c) appointing an officer (hereinafter called the Forest Settlement Officer) to inquire into and determine the existence, nature and extent of any rights claimed, by or alleged to exist in favour of any person in or over any land comprised within such limits, or to any forest produce of such land and to deal with the same as provided in this Act. The officer appointed under C....
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....ot;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 organisation 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 purpose of this section, "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for- (a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants; (b) any purpose other than reafforestation; but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts....
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....f the competent authority, the following measures are suggested for review of the old encroachments and effective implementation of the pronouncement made in this regard in the National Forest Policy, 1988. 2.1 All the cases of subsisting encroachments where the State Governments stand committed to regularize on account of past commitments may be submitted to this Ministry for seeking prior approval under the Forest (Conservation) Act, 1980. Such proposals should invariably conform to the criteria given below: 1. PRE-1980 ENCROACHMENTS WHERE THE STATE GOVERNMENT HAD TAKEN A DECISION BEFORE ENACTMENT OF THE FOREST (CONSERVATION) ACT, 1980, TO REGULARIZE 'ELIGIBLE' CATEGORY OF ENCROACHMENTS. 1.1 Such cases are those where the State Governments had evolved certain eligibility criteria in accordance with local needs and conditions and had taken a decision to regularize such encroachments but could not implement their decision either wholly or partially before the enactment of the Forest (Conservation) Act, on 25.10.80. 1.2 All such cases should be individually reviewed. For this purpose the State Government may appoint a joint team of the Revenue, Forest and Tribal Welfare ....
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....the prescribed conditions, are those which fulfilled the eligibility criteria evolved by the State Government as per decision taken before 25.10.1980 for regularization of encroachments. The objective is limited to permitting implementation of decisions taken before 25.10.1980 which could not be implemented because the enactment of Forest (Conservation) Act, 1980 intervened. It is therefore quite clear that while all encroachments that can be considered as eligible for regularization would have taken place before 25.10.1980, all encroachments that had taken place before 25.10.1980 would not be eligible for regularization - they may be ineligible because either they do not meet the eligibility criteria or are not covered by any decision taken before 25.10.1980. Thus, if the decision on regularization of encroachments in a State covered only encroachments up to a date earlier than 25.10.1980, the guidelines on regularization of encroachments do not envisage that the State Government would now survey encroachments between that date and 25.10.1980 and propose regularization. The latter encroachments though occurring before 25.10.1980 are not covered by any regularization decision taken....
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....phrase 'non-forest purpose'. 18. We shall now consider whether Section 2 of the 1980 Act is prospective in operation and the State Government etc. are not required to obtain prior approval of the Central Government before regularizing use of any forest land for any non-forest purpose or issue patta or grant lease to unauthorised occupants/encroachers of forest land, or the provision contained in Section 2 is applicable qua any action which the State Government or other authority may take with reference to activity undertaken in any reserved forest or any forest land prior to 25.10.1980. Undisputedly, the object of the 1980 Act is conservation of forest and to prevent depletion thereof. Therefore, the Court is bound to interpret the provisions of that Act which would further the object of the legislation. After enforcement of the 1980 Act, the State Governments were denuded of suo moto power to deal with reserved forest or forest land and permit use thereof for non-forest purposes. They could do so only after obtaining prior approval of the Central Government. However, as large tracts of reserved forests and forest land had been occupied by landless poor, who also undertoo....
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.... been accorded before the coming into force of the Act and the forest land is broken up or cleared then the section cannot apply. In the present case the State Government had not violated Section 2 in permitting the lessee by the amendment of the lease deed to win and remove felspar and quartz also in addition to mica because thereby no permission for fresh breaking up of forest land is being given. The result of taking the contrary view will be that while the digging, for purposes of winning mica can go on, the lessee would be deprived of collecting felspar or quartz which he may come across while he is carrying on mining operations for winning mica. 20. The above judgment was considered in Ambica Quarry Works v. State of Gujarat and Ors., AIR 1986 SC 1620. That was a case of renewal of lease for the minor mineral granted in Village Morai of District Valsad, State of Gujarat. The lease was granted on 8.11.1971 for a period of 10 years. Just before the expiry of the term of lease, the appellant applied for its renewal under Rule 18 of the Gujarat Minor Mineral Rules, 1966. The concerned Assistant Collector rejected the application on the ground that the land is a part of the rese....
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.... is entirely different. The appellants are asking for a renewal of the quarry leases. It will lead to further 'deforestation or at least it will not help reclaiming back the areas where deforestations have taken place. In that view of the matter, in the facts and circumstances of the case, in our opinion, the ratio of the said decision cannot be made applicable to support the appellants' demands in these cases because the facts are entirely different here. The primary purpose of the Act which must subserve the interpretation in order to implement the Act is to prevent further deforestation. The Central Government has not granted approval. If the State Government is of the opinion that it is not a case where the State Government should seek approval of the Central Government, the State Government cannot apparently seek such approval in a matter in respect of which, in our opinion, it has come to the conclusion that no renewal should be granted. 21. In Tarun Bharat Sangh, Alwar v. Union of India and Ors., 1993 Supp (3) SCC 115, this Court held that once an area is declared as protected forest, it becomes forest within the meaning of Section 2 of the 1980 Act and prior approv....
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....prevent the depletion of forests. In other words the Act intended not only to protect the existing forests but also to conserve and protect the existing forests in accordance with the provisions of the Act. In view of the prohibition for grant of lease in the reserved forest area, grant of renewal in the face of the prohibited area will be in violation of law. Therefore, the authorities though had the power, but had duty while conserving the forest to refuse to grant renewal. In that view the Government's refusal to grant renewal, therefore, cannot be said to be illegal. If they consider that renewal could be granted, even then the prior approval of the Central Government is mandatory under Section 2 of the Act. 23. In T.N. Godavarman Thirumulkpad v. Union of India and Ors., AIR 1997 SC 1228, this Court adverted to the misconception entertained in certain quarters about the true scope of the 1980 Act and the meaning of the word "forest" used therein and held: 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 for....
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.... of any forest land or any portion thereof for any non-forest purpose or grant any lease, etc. in respect of forest land to any private person or any authority, corporation, agency or organization which is not owned, managed or controlled by the Government. Another principle which emerges from these judgments is that even if any forest land or any portion thereof has been used for non-forest purpose, like undertaking of mining activity for a particular length of time, prior to the enforcement of the 1980 Act, the tenure of such activity cannot be extended by way of renewal of lease or otherwise after 25.10.1980 without obtaining prior approval of the Central Government. 25. We may now revert to the facts of the case in hand. It is not in dispute that before the enactment of the 1980 Act, the Government of Kerala had taken a policy decision to regularize the illegal/unauthorised occupation and encroachments of forest land made prior to 1.1.1977 and also to remove all unauthorised occupation/encroachments made on and after 1.1.1977. For implementation of that decision, the State Government approached and succeeded in persuading the Central Government to grant approval for diversion ....