245

ROLE OF THE JUDICIARY TOWARDS

After the industrial revolution, commercial pressure, local demands and

urbanization have resulted in rapid destruction of vegetation cover throughout the

world. Protection of forests during the last few years has become not only a matter of

national concern but for global importance. Decline in environmental quality has been

evidenced by increasing pollution, loss of flora and fauna, excessive concentration of

harmful chemicals in the atmosphere and food chains are posing threat to life support

system. This has drawn the attention of all the nations including developed,

developing and underdeveloped. How could the judiciary remain a silent spectator

when the subject has acquired high importance and become a matter of caution and

judicial notice. The courts have used their wisdom in deciding several substantive

issues relating to the use of forest resources. Since, the last few years the Supreme

Court of India has taken the task of comprehensive conservation and protection of

forests across the country. In dealing with the issues of saw mill, mining, tribal

dependency, minor forest produce, dams, infrastructure projects, the Supreme Court

had balancing the competing claims and projects while at the same time trying to

interprete and differentiate between the genuine and bonafide needs of the local

inhabitants, with that of necessity of biodiversity conservation. Through, series of

illuminating judgments, orders and directions, the Supreme Court using its writ

jurisdiction and interpreted various legislations through purposeful construction so as

to ensure its implementation in its true letter and spirit.

6.1 Role of the Court on Rights of Forest Dwellers :

For industrial growth and progress, energy is indispensable; exploitation of

resources available from forest cannot be ruled out. In Banwasi Seva Ashram vs.

State of Uttar Pradesh & Ors.1 the question that required detailed consideration was

related to the claims of the adivasis, living within Dudhi and Rabertsganj tehsils in the

district of Mirzapur in Uttar Pradesh, to land and related rights. The land so required

by the state was for setting up the Rihand Super Thermal Power Project of the

N.T.P.C. Systematic attempt was made to obstruct to the forest dwellers from free

movement. The count granted the land that was sought to be acquired by following

the process of land Acquisition Act.

The Court, in trying to balance the twin needs of development while

upholding the traditional rights of forest dwellers, held :

Indisputable, forests are a much wanted national asset. On

account of the depletion thereof, ecology has been disturbed; climate

has undergone a major change and rains have become scanty. These

have long term adverse effects on national economy as also on the

living process. At the same time, we cannot loose sight of the fact that

for industrial growth as also for provision of improved living facilities,

there is great demand in this country for energy such as electricity......

A scheme to generate electricity, therefore, is of national importance

and cannot be differed.2

1
A.I.R. 1987 S.C. 374
2
ibid Pp 376 – 378
 247

The Court said the concept of sustainable development demanded that the

oustees be rehabilitated after examining their rights. Directions regarding

demarcation, expeditious settlement of rights, granting of appropriate title deed to the

claimants were also given.

In Fatesang Gimba Vasava & Ors. Vs. State of Gujarat & Ors.3 the writ

petitions were preferred by the adivasis, known as Kotwalias and Vansfodias in

Gujarat, where the main grievance is that they are being harassed by the officers of

the Forest Department with a view to deprive them of the privileges conferred upon

them by the State government. These petitioners have their residence in reserved

forests and they claim certain privileges in regard to the collection of forest produce

including bamboo. According to them, they have privileges to collect a certain

quantity of bamboo per family from the reserved forests for the purpose of making

toplas, supdas, palas etc. for their livelihood.

While establishing the petitioners – who were kotwalias and vonsfodias – as

tribals, the court quoted the Gujarat Manual, which lays down that ‘Aboriginal or hill

tribe’ includes persons who are residents of forest tracts and who depend entirely on

manual labour for their living, and usually eke out their subsistence by labour in the

forest and by the collection and sale or barter of forest produce. In light of the above

the Court held that, Bamboo being a tree would certainly fall within the definition of

‘forest produce’, but toplas, supdas and palas made out of bamboo chips, would not

fall within the definition of forest produce.

3
A.I.R. 1987 Guj 9
 248

In Suresh Lohiya vs. State of Maharashtra & Ors.4, the question involved in

the case wheather bamboo mats are a forest produce under the Indian Forest Act and

hence, wheather the order of confiscation of bamboo belonging to the appellant was in

accordance with law. The owner of the bamboo mat had approached the Supreme

Court by way of this appeal. The appeal was allowed and it was held that bamboo mat

is not a forest produce in the eyes of the Act, and the order of confiscation passed by

the Conservator of Forest was not in accordance with law.

In the Second Banwasi Seva Ashram vs. State of Uttar Pradesh,5 the court

imposed more responsibilities on the NTPC to find out alternative plots, render

resettlement and subsistence allowance, give free transportation, reserve jobs and

provide facilities of roads, water supply, health care and electricity.

People displaced due to implementation of projects should be properly

rehabilated. They can also be assigned lands in reserved forest for cultivation.

However such assignment is not without limit.6 The facts of State of Orissa vs. Duti

Sahu7 show that the local people were assigned forest area for cultivation. The

Supreme Court, interfered with transit permits granted to them, on the basis of this

assignment. It also held that since the grant was only for cultivation, the respondents

did not have any right to deforest the land and to cut and take the trees that belonged

to the government much less without permission.

4
A.I.R. 1987 SC 103
5
(1992) 2 S.C.C 202
6
Leclakrishnan. P. : Environmental Law in India (Laxis Nexis, 2002) p – 15
7
A.I.R. 1997 S.C 1040
 249

In Pradeep Krishan vs. Uniton of India,8 the Supreme Court suggested :

If one of the reasons for the shrinkage is the entry of villagers

and tribals living in and around the sanctuaries and the national parks,

there can be no doubt that urgent steps must be taken to prevent any

destruction or damage to the environment, the flora and fauna and

wildlife in the areas.

Besides felling trees, certain other acts are also prohibited in reserved forests.

Nobody can hunt, shoot or fish or trespass or pasture cattle in contravention of the

rules. Further, once the State Government declares an area a sanctuary or national

park, the limits of rights and claims are determined.9 In Animal and Environment

Legal Defence Fund vs. Union of India,10 the Supreme Court had to resolve a

dispute between two neighbouring states on the rights of tribals. The government of

Madhya Pradesh allowed fishing permits to the displaced tribal people in Toltadoh

reservoir within Pench National Park. The government of Maharashtra objected on

environmental grounds such as potential danger of felling trees, harm to crocodiles

and turtles in the reservoir, disturbance to water birds and migratory birds and the

possibility of lighting fires and throwing garbage and polythene bages around and into

the reservoir. The fact that displaced persons were not systematically rehabilitated

weighed more in the balance. The court observed :

……. while every attempt must be made to preserve the fragile

ecology of the forest area and protect the Tiger Reserve, the right of

the tirbals formally living in the area to keep body and soul together
8
A.I.R. 1997 S.C 2040 at p – 2047
9
Leelakrishnan. P. : Environmental Law in India (Lexis Nexis, 2002) p – 16
10
A.I.R 1997 S.C 1071
 250

must receive proper consideration. Undoubtedly, every effort should be

made to ensure that the tribal, were resettled, are in a position to earn

their livelihood.11

The observations in both the cases are relevant in assessing the symbiotic

relationship between the tribals and the forest. Tribal people were considered

protectors of forest in the past. Only when men from plains began mixing with them

and when needs of development started to displace them from their habitat, were the

tribals seen as a group posing a threat to the environment. Time was when the tribal

people constituted the best friends of the (Forest) Department and served to inform in

advance the movement of strangers in the forest and the commission of forest

offences. They were also the guides and the eyes and ears to the forest. With the

increasing strictrues on their access to and use of the resources that their habitat once

provided them and which they used to take for granted, they have now tended to

identified themselves with the settlers, encroachers and deprecators of forest wealth

who pay them a moiety for their services in furtherance of their own nefarious

interests.12

Similarly, in Mulla Mohmadali vs. State of Gujarat,13 the contractors entered

into an agreement with Jagirdars to cut standing trees thinking that the latter had

proprietary rights alleged to have been granted under the Chhota Udaipur State. The

old position was clear : Jagirdars had no rights to cut trees in reserved forests. This

position had not changed. The Supreme Court held that the contractors could have no

11
ibid p – 1073
12
Madhav Menon T, ‘Law and Tribal Societies in Kerala’ in (1985) Cohin University Law Review 157
at Pp 170 – 71
13
A.I.R. 1993 S.C 335
 251

greater rights than those of the Jagirdars. The same situation exists in the case of

other forest dwellers and tribal people who may not have more or greater rights than

those they had before the formal legal system became applicable.

In this way the Indian Judiciary Continued to interpret the existing legislations

and extend the meaning of forest, which covered with trees, shrubs, vegetation and its

dwellers. Such a wide meaning is necessary for the preservation of forest land,

maintenance of ecology and prevention of environmental degradation.

6.2 Forest Protection : Some Judicial Perspectives in Mining Cases :

In Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar

Pradesh14 is significant as the first case requiring the Supreme Court to balance

environmental and ecological integrity against industrial demands on forest resources.

The case arose from haphazard and dangerous limestone quarrying practices in the

Mussoorie Hill Range of the Himalayas. Miners blasted out the hills with dynamite,

extracting limestone form thousands of acres. The miners also dug deep into the

hillsides, an illegal practice which resulted in cave-ins and slumping. As a result, the

hillsides were stripped of vegetation. Landslides killed villagers and destroyed their

homes, cattle and agricultural lands. Mining operations upset the hydrological system

of the Dehradun Valley. Springs dried up and severe water shortages occurred in the

valley, an area formerly blessed with abundant water supplies. At the same time,

mining debris clogged river channels and during the monsoon season severe flooding

occurred.15

14
A.I.R. 1988 S.C 2187
15
Divan & Rosencranz : Environmental Law And Policy in India (Oxford 2001) p – 308
 252

The Supreme Court played an activist role in this litigation, essentially

conducting a comprehensive environmental review and analysis of the national need

for mining operations located in the Dehradun Valley. In addition, the court provided

for funding and administrative oversight of reforestation of the region. The court

appointed an expert committee (the Bhargava Committee) to assess the mines. In

March, 1985, the court, upon the recommendations of the Bhargava Committee,

ordered that the most dangerous mines and those falling within the Mussoorie city

board limits be denied leases and that their operations cases immediately. The second

committee (the Bandopadhyay Committee) was empowered to consider plan

submitted by the miners to safeguard the environment and to hear the claims of people

adversely affected by the mining. In 1987, the court concluded after review of the

Bandopadhyay Committee’s report that based on ecological considerations alone,

mining in the valley should case.

In Ambica Quarry Works etc. vs. State of Gujarat & Ors,16 the appeal centre

around the question of how to strike a balance between the need of exploitation of the

mineral resources lying hidden in the forests and the preservation of the ecological

balance and to arrest the growing environmental deterioration. The Supreme Court

made in categorically clear that renewal of a license can be made only on getting prior

permission from the central government. The Forest (Conservation) Act was passed in

order to arrest ecological imbalance, a consequence of deforestation.

16
A.I.R. 1987 S.C. 1072
 253

In Samatha vs. State of Andhra Pradesh,17 the guidelines for bureaucrats

assessing an application to mine in a forest were set out by the Supreme Court. The

Count held that, mining operations, though detrimental to forest growth, are part of

layout of the industry, provision should be made for investment or infrastructural

planning to reforest the area; and to protect environment and regenerate forest. The

Ministry of Environment and Forests and all Secretaries of all the State Governments

holding charge of Forest Departments have a duty to prevent mining operations are

carried on within the reserved forest or other forest area, it is their duty to ensure that

the industry or enterprise does not denude the forest to become a menace to human

nor a source to destroy flora and fauna and biodiversity. No distinction can be made

between the Government Forest and Private forests in the matter of forest wealth of

the nation and in the matter of environment and ecology.

Tarun Bharat Sangh, Alwar vs. Union of India,18 or popularly known as

Sariska Case is another example of prohibition of mining in forest area. Open-cast

mining of lime stone and marble in the Alwar District was disturbing aquifers, springs

and the water holding capacity of the Aravalli. The use of dynamite had scared and

devastated the hills. The court directed the listed mines to stop forthwith. The Central

Government was directed to submit a report within 3 months on the state

government’s proposal to delete 5.02 sq. kms from the protected area. Mines situated

outside the protected forests within the tiger reserve were permitted to continue for 4

months, within which period they were permitted to approach the Central Government

for permission to continue their operations. If no permission was obtained, they were

directed to cease mining activity.

17
A.I.R. 1997 S.C. 3297
18
A.I.R. 1992 S.C. 514
 254

6.3 Eco – Tourism And the Role of Judiciary towards Forest

Protection :

There are differing views on the benefits of eco-tourism. While it provides

opportunities for nature lovers to experience its beauty and appreciate its importance,

its promotion also results in polluting and harming the environment.19

Eco-tourism was one of the objects of the project for a biological park, which

was examined in Niyamavedi vs. State of Kerala.20 Petitioners contend that the

proposed project for Biological Park would result in denudation of forest in the State

of Kerala and if the project materializes it would pose threat to the environment and

ecology. The project was designed after consulting many experts who gave full

support to watching wildlife at close quarters, without interfering with the sanctity of

flora and fauna. The Kerala High Court held that the government’s decision to

establish a park after such consultation was a policy decision which could not be

interfered with. According to the Court, the object of a biological park, not being a

non-forest purpose, prior approval of the Central Government was not necessary.

In Nagarahole Budakattu Hakku Sthapana Samithi vs. State of Karnataka,21

the establishment of a restaurant with boarding and lodging, in the midst of the

Nagarahole National Park was the main issue. On the basis of 18 year lease from the

government, the lessee, a private company, renovated old buildings for the

establishment of the facility. The Court held that once an area was declared a National

Park no one has any right on or over the land unless it is specifically granted.

19
Leelakrishnan. P. : Environmental Law in India (Lexis Nexis 2002) p – 22
20
A.I.R. 1993 Ker 262
21
A.I.R. 1997 Kant 288
 255

In Union of India vs. Kamath Holiday Resorts Pvt. Ltd.,22 the collector leased

out a site in a reserve forest area for putting up a snack bar and restaurant to cater to

the needs of the tourists visiting the forest. Since the area leased out was within a

Union Territory, the collector did not deem it necessary to comply with the procedure

under Sec. 2 of the Forest Conservation Act. The Conservator of Forest challenged

the grant of the said lease.

The court directed the collector to send a proposal, incorporating the

objections of the Conservator of Forest, to the Central Government as required under

the Forest Conservation Act. On receipt of the proposal and after obtaining advice

from the Advisory Committee, the Central Government would pass orders. The

collector shall, thereafter, abide by the order and the entire exercise was required to be

over within a period of three months from the date of the decision.

An artificial deviation of the flow of a river in forest land for the purpose of

augmenting facilities of a motel was challenged in M.C. Mehta vs. Kamalnath.23

Quashing prior approval for the lease and imposing on the motel the responsibility of

restoration of environment and ecology of the area, the Supreme Court observed :

Our legal system – based on English Common Law – includes

the public trust doctrine as part of its jurisprudence. The state is the

trustee of all natural resources, which are by nature meant for public

use and enjoyment. Public at large is the beneficiary of the sea-shore,

running waters, air, forests and ecologically fragile lands. The state as

22
A.I.R. 1996 S.C 1940
23
(1997) 1 S.C.C. 388
 256

a trustee is under a legal duty to protect the natural resources. These

resources meant for public use cannot be converted into private

ownership.

On the facts of the case, the court found that the bank of the river, which was

part of protected forest, had been leased out for commercial purpose and held that the

State Government committed a patent breach of public trust by leasing out the

ecologically fragile land for a hotel.24

In Supreme Court Monitoring Committee vs. Mussoorie – Dehradun

Development Authority & Ors,25 the case involves the question of construction of

large residential and commercial buildings taking place in various areas in Mussoorie

without the consent of the Central Government and in violation of the order passed by

the Supreme Court in T. N. Godavarman Case. The petitioner was a monitoring

committee appointed by Supreme Court for monitoring the environmental aspects of

the Doon Valley. The petitioner filed the writ petition in public interest pointing out

that the Mussoorie – Dehradun Development Authority (MDDA) had sanctioned

construction plans in a large number of private forest estates in Mussoorie without the

permission of the Central Government as required by the Forest Conservation Act.

The Supreme Court held that the term ‘Forest land’ therefore, has to be

understood as including an extensive track of land covered with trees and

undergrowth, sometimes intermingled with pasture, that is, it will have to be

understood in the broad dictionary sense. Any building activity permitted within the

24
ibid p – 413
25
(1997) 11 S.C.C. 605
 257

forest area would certainly be a non-forest activity, which requires the prior approval

of the Central Government.

6.4 Godavarman Case : A Highwater Mark in Forest Protection :

In 1995, T.N. Godavarman Thirumulpad filled a writ petition with the

Supreme Court of India to protect a part of the Nilgiris forest from deforestation by

illegal timber felling. The Supreme Court clubbed the Godavarman Case with another

writ petition with similar issues, and expanded its scope from ceasing illegal

operations in particular forests into a reformation of the entire country’s forest

governance and management.26 This case represent the single biggest judicial

intervention in forest administration in the country. The case was initially filed in the

Supreme Court in order to give effect to the provisions of the National Forest Policy

of 1988. The Court formed the opinion that the matter requires a further in-depth

hearing to examine all the aspects relating to the National Forest Policy.

The balance between environment and development is necessarily to be

maintained. This idea of sustainable development had its influence on the judiciary in

interpreting the provisions of laws relating to the forest. Various dimensions of this

problem came to be examined by courts. T. N. Godavarman Thirumulkpad vs.

Union of India,27 is a remarkable illustration. In view of the significance of the

problem, the Court gave notice to both the Central Government and State

Governments enabling them to present their views. The pronouncements of the court

can be summarized as follows :

26
Rosencranz & Lele : Supreme Court and India’s Forests in Economic & Political weekly (Feb. 2,
2008)
27
A.I.R. 1997 S.C 1228 at Pp 1230 – 1233
 258

 Forest includes the area noted in the government records as forest, irrespective

of ownership.

 Mining licence in such an area without prior approval is violative of the FCA.

All on-going activity under such invalid licence must cease. The State

Governments have to take necessary remedial measures.

 Running sawmills of any kind is a non-forest activity. All saw mills within a

distance of 100 kilometers from the border of the State of Arunachal Pradesh

are to be wound up.

 Responsibility is imposed on each State Government to report on the number

of sawmills, actual capacity of the mills, proximity to the nearest forest and

their sources of timber.

 Complete ban on felling of trees in the tropical wet ever-green forests in

Arunachal Pradesh is essential ‘because of their significance to maintain

ecological balance needed to preserve biodiversity’. Felling of forests in other

states except in accordance with working plans is suspended.

 Movement of the cut trees and timber is banned with the exception of certified

timber required for defence purposes.

 Each State Government should constitute expert committees to identify forest

areas, denuded forests and covered by plantation trees and to assess the

sustainable capacity of the forest qua saw mills.

 In the State of Jammu and Kashmir, no private agencies should deal in felled

trees or in timber. No permission should be given for sawmills within a

distance of eight kilometers from the boundary of demarcated forest area.

 In Tamil Nadu the tribals who are part of the social forestry programme in

respect of patta lands other than forests may continue to grow and cut trees
 259

according to the government scheme and in accordance with the law

applicable.

 Plantations are not allowed to expand further and encroach upon forests by

way of clearing or otherwise.

The case came back within four months for review of the follow up action as

directed by the Court. Interestingly, the Court proceeded to constitute a High Power

Committee to oversee the strict and faithful implementation of its orders in the North

Eastern region. Directions were given that this Committee should prepare an

inventory of all timber, whether in transit or lying in mills and to examine whether the

use or sale of timber or timber products could be permitted through the state forest

corporations under its overall supervision. That the collection of minor forest

produces, including bamboo, could be exempted from the ban, is a significant holding

of the Court. Unlicensed saw mills and veneer and plywood industries in the states of

Maharashtra and Uttar Pradesh were directed to be closed. All shade trees felled in

janmam areas in Tamil Nadu were ordered to be delivered by the plantations to the

State Government. However, plantations were permitted to fell fuel trees subject to

certain restrictions. No further clearing in janmam lands by plantations was allowed

by the court.28

6.4.1 Godavarman Case towards Saw Mills And Wood Based Industries :

The Court in it’s order dated 12-12-1996 directed that all ongoing activities

within any forest without the prior approval of the Central Government must cease

forthwith. The Court made it absolutely clear that the running of saw mills of any

28
Leelakrishnan P. : Environmental Law in India (Lexis Nexis 2002) p – 25
 260

kind, including, veneer or plywood mills are not permissible without prior Central

Government approval. Specifically concerned about the danger to the tropical wet

evergreen forest of Tirap and Changlang in Arunachal Pradesh, the Court directed the

immediate closure of all saw mills, plywood mills and veneer mills within a distance

of 100 kms from the border of Assam. Further, in order to stop the trade in timber the

Court directed that there shall be a complete ban on the movement of cut trees and

timber from any of the seven North Eastern States to any other State.

Further, each State Government was directed to file within two months a

report regarding the number of saw mills, veneer and plywood mills operating within

each State, the real owners of these mills, the licensed and actual capacity of the mills,

their proximity to the nearest forest and their source of timber. Further, the States

were also directed to constitute within one month an Expert Committee to;

 assess the sustainable capacity of the forest of the State vis-a-vis saw mills and

timber based industries;

 the number of existing saw mills that can be safely be sustained by the State;

and,

 the optimum distance from the forest at which the saw mills should be located,

In view of the large number of saw mills operating in the North Eastern

Region, the Court constituted a High Power Committee (HPC) on 04-03-1997 in

order to oversee the ‘strict and faithful implementation’ of the orders of the Court.29

29
Dutta Ritwick & Bhupender Yadav : Supreme Court on Forest Conservation (Universal 2007) p – 5
 261

The order dated 15-01-1998 was very significant and dealt at length with the

running of wood based industries specifically in the North Eastern States. The Court

in its order observed :

“Even though the proliferation of wood based industries has been the main

cause of degradation of forest in the North Eastern States, considering the extent of

forest (64% of the geographical area) and the dependence of local people on the forest

in the region it is neither feasible nor desirable to ban completely either the timber

trade or running of wood based industries. However, their number and capacities are

to be regulated …… and they are also required to be relocated in specified industrial

zones. Moreover, industrial requirements have to be subordinated to the maintenance

of environment and ecology as well as bona fide local needs.”

With a view to regulating the saw mills, the Court directed the State

Governments to notify industrial estates for locating wood based industrial units in

consultation with the Ministry of Environment and Forest. Some of the important

directions issued are as follows :

 Licenses given to all wood based industries shall stand suspended.

 Wood based industries cleared by the HPC will have the option to shift to

identified industrial estates.

 Units who do not want to shift shall be allowed to be wound up as per law.

 Licenses of units shall be renewed annually, only when on illegality is

attributed.
 262

 Number of wood based industries shall be determined strictly within the

quantity of timber that can be felled annually on a sustainable basis as

determined by approved working plan from time to time.

 There shall be a complete moratorium on the issue of new licenses for any

wood based unit for the next five years.

In its order 12-05-2001, the Court made it clear that movement of timber

products including sawn timber, veneer and plywood out side North East Shall be

permitted only if sourced from or processed in HPC cleared wood based unit situated

inside an approved industrial estate except in case of Mizoram where no industrial

estates exist. Round and hand sawn timber shall not be allowed to be transported

outside the North East except with prior approval of HPC or Ministry of Environment

and Forest.

The issue of wood based Industry and its serious implication was critically

examined in respect to the Andaman and Nicobar Islands. The applicants comprising

of Society for Andaman and Nicobar Ecology, the Bombay Natural History Society

and Kalpavriksh had brought to the attention of the Court, the serious threat to the rain

forest of the Andaman and Nicobar Islands as well as the local tribes inhabiting the

Islands due to the unrestricted activities of the large number of wood based units

functioning in the islands. Considering these impacts the Commission appointed by

the Court recommended as follows :

 There should be a complete ban on establishment of any new wood based unit

for the next ten years.

 All existing small scale wood based units (Saw Mills) should be relocated

within industrial estates, or where industrial estates are not feasible, in

locations contiguous to forest offices or otherwise convenient for the forest

department to monitor.

 This relocation should be completed within one year after which non-

complying saw mills should be closed down.

 No subsidy of any kind, including transport subsidy should be given to any

wood based unit.

 Existing medium and large scale wood based industries can be allowed to

function provided they import their entire requirement of wood and other

forest based raw material from abroad or the mainland. No subsidies should be

allowed to them.

 No timber, either as logs or as sawn timber or plywood-veneer, or in any other

form, should be transported out of the Islands through any means whatsoever.

The Court on 07-05-2002 accepted the recommendations of the Commission

and further ordered as follows :

 The licenses of all the saw mills and wood based industries shall not be

renewed after 31st March, 2003. This will not debar the authorities from

canceling licenses in accordance with law, if there is no breach of the License

conditions by the Licensees before that date.

 The ecology of the area does not permit any kind of industrial activity for

which the wood is likely to be consumed. Therefore, licenses of wood based

industries shall stand cancelled but they will be permitted to exhaust the

existing stock till 31st March, 2003.

 The Union of India if it so adopts and thinks appropriate may take steps for re-

locating the dislocated wood-based industries in the main land area anywhere

in India as long as it is not within the vicinity of forest area. Henceforth for
 264

meeting the local requirements it is only the Government saw mills, which

shall operate.

 No fresh wood or logs shall be given to any of the saw mills or the wood

based industries till fresh working plans are prepared and submitted to this

Court and the approval obtained.

6.4.2 High Power Committee And Central Empowered Committee :

The increasing number of pending cases before the Supreme Court made it

difficult to examine each and every issue in detail and pass appropriate orders. The

Forest (Conservation) Act, 1980 did not provide for any opportunity for setting up

Tribunals or Authorities to adjudicate on such issues. As saw mill owners,

encroachers, contractors and other affected people started approaching the Court, the

need was felt to urgently set up a system in place to render justice, faster if not more

effectively. Then the court relied upon sec. 3(3) of the Environment (Protection) Act,

1986 on 04-03-1997 constituted a High Power Committee (HPC) to oversee the strict

and faithful implementation of the orders of the Court in the north-eastern region. The

committee was entrusted the task of overseeing the preparation of inventory of all

timber in all forms. On 09-05-2002 the Court constitute an Authority at the national

level called the Central Empowered Committee (CEC). The task assigned to it

included the monitoring of the implementation of the orders of the court, removal of

encroachment, implementation of working plan, compensatory afforestation

plantations and other conservation issues. The order dated 29-10-2002 conferred

additional functions on the CEC. It was directed that no State or Union Territory shall

permit opening of any saw mills, veener, plywood industry without prior permission
 265

of the CEC. It was further directed that there shall be no relaxation of rules with

respect to grant of licence without previous concurrence of CEC.30

6.4.3 Godavarman Case towards Felling of Trees and Compensatory

Afforestation :

While dealing with the Application of M/s South Eastern Coal Ltd. seeking

permission to fell trees for mining operation, the Court dealt at length on the Forest

clearance procedure under the Forest (Conservation) Act, 1980 and the Rules framed

under it. The Court raised a pertinent question viz. whether the present practice which

is being followed, namely, of the applicant depositing money with the State

Government and requiring it to carry out the afforestation, is satisfactory or not. The

Court felt that in order to ensure regeneration of forests, the primary responsibility

should be the applicant concerned, the party that is going to use the dereserved forest.

The Courts’ order was highly innovative. For example :

 It suggested that the Government must specify the period within which the

afforestation must commence and be completed.

 Furthermore, there should be a requirement of “environmental audit” in order

to ensure that after the saplings are planted the survival rate is high.

 The Government might consider requiring each applicant who is under an

obligation to carry out afforestation to publish the results of the environmental

audit every year in a newspaper and forward the same to the Central

Government.

30
ibid Pp 10 – 12
 266

 The Applicant is not only responsible for planting trees rather it should be its

responsibility to look after and maintain the same and ensure its survival and

full growth.

On 12-05-2001, the Court laid down detailed guidelines for the felling of trees

from forest areas as well as non forest area including plantations. As per the order, the

felling of trees from forest areas could be allowed only as per the approved Working

Plans / schemes, whereas the felling of trees from non forest area could be allowed

only as per detailed guideline which are prepared by the State Government with the

concurrence of the Central Government.31

In respect of diversion of 9.872 hectares of forest land falling inside the

Ratpani Wild Life Sanctuary. The Supreme Court in its order dated 24-11-2003

permitted the use of the forest land subject to deposit of 5% of the estimated cost of

the project in the tune of Rs. 45.35 crores towards the compensatory afforestation

fund for protection and conservation of sanctuary.

6.4.4 Godavarman Case towards Protection of National Parks And Sanctuaries :

In 1998, the Amicus Curiae brought to the notice of the Court the illegal

felling of trees in the buffer zone of the Kanha National Park and adjoining corridors

of East Mandla Forest in the State of Madhya Pradesh. It was submitted that under the

garb of removing infected Sal trees, (said to be infected with the Sal Borer epidemic)

uninfected trees have also been cut. The Court took a very serious view of this matter

and in it’s order dated 23-02-1998, restrained the State Government of Madhya

31
ibid Pp 13 - 15
 267

Pradesh from felling any tree, even if in the opinion of the State Government, the

particular tree or trees are considered to be infected.

On 21-07-1998, the Court considered the application of the State of Madhya

Pradesh seeking permission to cut trees for the purpose of catching and killing adult

insects by using “trap-tree operation” to prevent further growth of Sal Borer. The

Court agreed to the request of the State Government and permitted it to cut Category

IV trees for use as “trap-trees” and also injured and wind fallen trees. The Court

further directed that not more than one tree per two hectares should be cut. The

felling, however, was to be done under the Supervision of the committee appointed by

the Court.

A similar issue also related to the Rajaji National Park situated in the State of

Uttaranchal. An application was filed by the then State of Uttar Pradesh seeking

permission for felling and extraction of 203 Sal trees, which were infected by the Sal

Borer epidemic. The Court allowed the extraction on the condition that it will be done

under the supervision of the scientists of the Entomology Division of the Forest

Reserch Institute, Dehradun.

Despite the above specific order, violations were taking place through out the

country. In 2001, K.M. Chinappa, representing a local NGO: Wild Life First!, filed an

Intervention Application through the Amicus Curiae, pointing out before the Court,

that despite the orders dated 12-12-1996 and 14-02-2000, mining activities were

taking place in the Kudremukh National Park in Karnataka by the Kudremukh Iron

Ore Company limited (KIOCL), a Government of India, Public Sector Unit.

The Court accepted the time period for stopping mining activities as fixed by

the Forest Advisory Committee, constituted under Section 3 of the Forest

(Conservation) Act, 1980. It meant that KIOCL was to be given five years to wind up

operation from the time its earlier lease expired (it had already expired). This meant

mining would be allowed till the end of 2005 by which time the weathered secondary

ore available in the already broken area will be exhausted. The Court, however, made

it clear that this was subject to fulfillment of the recommendations made by the

committee on ecological and other aspects.

A further violation of the order dated 14-02-2000, took place in the famous

Ranthambhore National Park and Tiger Reserve in Rajasthan, when the Central

Empowered Committee was informed that about 600 persons along with about 6,000

livestock had forcibly entered the National Park and were camping within the Core

area. The Central Empowered Committee is its order addressed to the Chief Secretary

of the State requested the Chief Secretary to immediately take steps to ensure the

compliance of the order dated 14-02-2000 wherein the grazing and removal of grasses

of trees from National Parks was strictly prohibited. It was further stated that any

removal of grass etc. would make the State liable to contempt proceedings.32

The legal canons of the Apex Court unfold the panorama of progressive

development of environmental awareness. In the seventies, Courts cater the claims of

helpless persons on the cost of environmental degradation. In the eighties, first wave

of environmental jurisprudence was being recognised. In the nineties the Court further

interpreted the environmental values into the existing law. The judiciary played an

32
Dutta Ritwick & Bhupender Yadav : Supreme Court on Forest Conservation (Universal, 2007) Pp 17
– 21
 269

important role in protecting forest and wildlife. Concept of sustainable development

implemented by the Court in various ways. Besides several judgments relating to saw

mills, mines, compensatory afforestation, the Courts endeavoured to protect the rights

of persons affected by development projects and tribal people, who has the symbiotic

relationship with forest eco-system. Relying on the doctrine of ‘Public trust’ the

Court protects and preserves the natural vegetation and upheld the controls on

exploitation of wildlife. Godavarman case is the second wave of environmental

jurisprudence where Supreme Court deals with series of issues like saw mill, mining,

dams, infrastructure projects while at the same time trying to differentiate between the

genuine and bonafide needs of the local people. The Court constitutes two committees

to monitor the outcome of the case. The role of the amicus curiae has been very

crucial at every stage as the case progressed. The term ‘Forest’ and ‘Forest land’ also

interpreted by the Court Although there is no specific case relating to eradicate the

problem of desertification decided by the Court but there are several judgments which

eliminating the evils of forest degradation and mismanagement at various levels

throughout the country.

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