Shobha Phadanvis Vs. the State of Maharashtra and Others - Court Judgment

Excerpt:
1. in pursuance of the order of transfer of original writ petition no.1277/2000 by honble high court of bombay, nagpur bench this application is taken on file. the applicant has filed this application to protect the forest cover of maharashtra, particularly in the forest area of district chandrapur and gadchilori by way of prohibiting/preventing the illegal cutting and smuggling of seasonal wood. the applicant was member of state legislative assembly (m.l.a.) when the application was filed and she tried to bring the issues raised in this application on floor of the state legislature through various legislatives methods. however, she could not get the required responses and hence filed this application. the applicant submits that in the month of november 1999 she received a complaint that.....

Judgment:

1. In pursuance of the order of transfer of original Writ Petition No.1277/2000 by Honble High Court of Bombay, Nagpur Bench this application is taken on file. The Applicant has filed this application to protect the forest cover of Maharashtra, particularly in the forest area of District Chandrapur and Gadchilori by way of prohibiting/preventing the illegal cutting and smuggling of seasonal wood. The Applicant was Member of State Legislative Assembly (M.L.A.) when the Application was filed and she tried to bring the issues raised in this Application on floor of the State Legislature through various legislatives methods. However, she could not get the required responses and hence filed this Application. The Applicant submits that in the month of November 1999 she received a complaint that there was illegal cutting of the forest involving teak and seasonal wood in Chimur-Wahangaon compartment No.57 of 536 Hectare. Upon verification, she found that this illegal activity was going on the site. She further submits that she raised this issue in the Legislature and was not satisfied with the reply of the Government and therefore, she personally went to the site with prior intimation to the Government officials on 29th December 1999 and a panchnama was made about the forest cutting which is part of the record.

2. The Applicant also submits that she visited the depot of forest department wherein it was noticed that countless pieces of wood without hammering, re-numbering are deposited which are left over after material portion of the tree is removed and therefore, she came to know that there is huge illegal cutting of forest wood. She further submits that she immediately gave the information of said fact to the Chief Secretary and the Forest Secretary who also conducted the inspection through the Department officials. During such inspection they noticed that in the forest depot, wood is being deposited without there being any number or hammer. The Applicant, therefore, claims that important part of the teak and forest trees were taken away and rest of the balance is deposited in the forest depot showing there is as if, nothing that has happened. She also submits that detailed representation along with videography has been submitted to the Government. However, no substantial action has been taken so far.

3. She has raised important observations of this visit to high-light the illegality in cutting of the forest tree:

a) In Sironcha Forest, old œMatruvruksha? trees are illegally cut and smuggled out. Similar wood cutting is observed in œWakshan? compartment. In Ankisa depot, forest woods have been stored without any number and without following any due procedure.

b) Artificial conflagration is caused so that the entire bottom of the tree is destroyed in order to destroy the evidence.

c) Without there being marking, hammering and ascertaining the length and breadth of the tree, the trees which are lying on the spot, after important and costly middle portion is removed, are deposited in the forest depot.

4. The Applicant, therefore, approached the Honble High Court and sought to save remaining forest by adopting immediate measures for the sound forest management activities. The Applicant further submits that the State Government is collecting funds under Section 6 of the Maharashtra Forest Department Act 1983. Inspite of collection of such funds, there is no proper utilization thereof for protection of the Forests.

5. The Applicant further submits that the State has sufficient resources of funds for the Forest protection and development activities as the State is collecting tax on sale of forest produce under Section 6 of the Maharashtra Forest Department (Tax on Sale on Forest Produce by Govt. or Forest Development Corporation) Act 1983. This tax amount is recoverable and that tax, after deducting the expenses for its collection, has to be used for the purpose of protection and development of the Forest. The Applicant claims that by November 2001, the State of Maharashtra had collected about Rs.125 crores under this tax head, but has not used the same towards protection and development of Forest. The Applicant has also raised various technical issues, such as non preparation of appropriate working plans for the forest areas, non preparation of the master plan for conservation of forest for a period of 30 years, non availability of detailed forest maps by carrying out detailed survey and also marking of the Forest boundaries. The Applicant has prayed for suitable directions to implement an integrated master plan for protection and development of Forest. The Applicant has also further claimed that the conflagration is one of the reasons for destruction of fire. It is claimed that the artificial forest fires are set specially in the month of March and April to facilitate the Tendu leaves collection by the Tendu Contractors. The Applicant has also raised issue of safety of the forest personnel and the issue of restricted mobility due to non availability of the transport vehicles for the forest personnel for effective monitoring and vigilance. The Applicant has sought involvement of the local people in the forest management which can also provide them employment and also, develop a sense of responsibility amongst the local people towards forest protection and development. The Applicant has given several suggestions for consideration while preparing the master plan including suitable legislative amendments, administrative delegation of powers, preparation of working Manuals, Development of intelligence cell, removal of encroachment over the forest lands, sample census of forest areas, and settlement of revenue of forest records. The Applicant has finally prayed for various reliefs towards the protection and development of the forest areas in the State which are summarized in brief as below :-

a) Formation of the Expert committee to inquire the entire matter.

b) The State be restrained from using the funds collected under section 6 of the Maharashtra Forest Department (Tax on sale of forest Produce by Government or Forest Development Corporation) Act 1983 for any other purpose except development of forest in the area of destructions of Chandrapur, Gadchiroli and Bhandara.

c) Direct the State to give details of utilization of the above said tax amount collected so far.

d) Direct the State Government to frame master plan for Protection and Development of Forest and disclose the implementation status of the said master plan from time to time.

6. This petition was heard by the Honble High Court of Judicature of Bombay, Nagpur Bench and several directions have been issued from time to time for implementation. The important orders and directions issued by the Honble High Court are referred hereafter for highlighting the importance given by the Honble High Court to this Application which is mainly for the protection and development for Forest area in the State of Maharashtra and the steps taken by the Government upon those directions. On 20th July 2000, the Bench had expressed its surprise on the contents of the Affidavit filed by the Intervener Association which made specific allegations regarding the tree cutting, mainly due to the fact that though the Court was ceased of the matter and had issued directions to the Government to take immediate steps in the matter, still illegal felling of the trees is going on without any obstruction and the Forest Department, except for registering preliminary offence report, has not been able to prevent such illegal felling of trees. The Court also directed the State Government to constitute High Power Committee consisting of Chief Secretary, Finance Secretary, Forest Secretary, Home Secretary, Director General of Police, Principal Chief Conservator of Forest and Chief Conservator of Forest (Protection). This Committee was directed to implement immediately the measures suggested by SIT which was constituted by Order dated 20th April 2000. The Court in its order dated 10th October 2000 has taken on record the Report of the High Power Committee and also noted that the suggestions and recommendations stated in the Report need to be implemented in a time bound and effective manner and therefore, the Court decided to continue hearing the matter to ensure the effective implementation with this High Power Committee Report. The Court in its order dated 4th May 2001 has recorded that:

œMr. Kaptan, learned counsel appearing for Maharashtra Forest Rangers Association, one of the intervener in the matter submitted that he has personally visited the forest area in Sironcha, Alapalli, Bhamragad in Gadchiroli Region and found that illicit felling of timber in various area continues unabated. It is submitted that in case the Revenue and Forest Department undertake an exercise to demarcate their respective land i.e. the forest land and revenue land, it will go long way in regulating the steps to prevent the illicit felling of timber. It is also suggested that the two departments should also carry out the tree census around the area having human habitation in respect of their lands, as these areas are prone to illicit felling of timber and that can also act as a check in detecting the illicit felling of timber.

Our attention is also drawn to the fact that the transport of illicit fell timber from the Forest Region still continues unabated through rivers passing through there namely Godavari, Pranhita and Indrawati and unless as effective patrolling is made by the speed hosts and round the clock surveillance is kept, it will be difficult to check the same.?

7. The Court in its order dated 27th April 2002 has noted that:-

œThough this Court has been feeded with lot of information and material on the subject, but still it finds that High Power Committee appointed by this Court has not taken any concrete steps to implement various interim orders passed by this Court from time to time¦.. ?

8. The Court in its order dated 3rd May 2002 has noted that :-

œOur anxiety is to see that the State take up the programme of implementation as per the National Wild Life Action Plan and pursuant to the forest report on the State of forest in the State of Maharashtra and dire need on the part of the State to protect and preserve it when we refer to forest which includes (wild life) and National Forestry Action Programme for management, so far as to regain the lost forest for carrying out a forest station in a phased manner. It is with this anxiety and as a first step, we are calling upon the State to at least make available basic-necessary funds to the Forest Department, so that at least the Forest Department get activated and take immediate measures required for preservation and protection of forest, from all its aspect as this is the main reason that the Forest Department feels helplessness in the protection and conservation of forest.?

9. The Court further directed the Principal Chief Conservator of Forest (PCCF) to prepare a white paper by way of action plan for implementation of the High Power Committee Report and also interim orders passed at various occasions. The Court further directed the PCCF to prepare a comprehensive and Integrated Action Plan, even making it clear that the service in Forest Department is not inferior to that in the Police Department, and is rather very challenging. The Court further directed all the Judicial Authorities and Courts to take up the cases involving Forest Offences on priority basis. The Court further directed the Chief Conservator of Forest not to renew any new Saw Mill licenses and cancel all such licenses of Saw Mills in Sironcha area and further not to permit any Saw Mill to operate in a Region as it is detrimental to the interest of Forest. The Court on 30th April 2004, passed an order that directing the State to comply with the Policy decision taken by Central Government for Protecting environment and therefore, restricting felling of trees within 10 K.M. area notified as eco sensitive area from the boundaries of National Park or Sanctuary. On 4th October 2004, the Court further clarified that if the Court is furnished all the necessary data and steps taken by the State Government in taking up the matter with the competent Authority, it may be possible to consider the applications filed by Intervener as well as the State Government for the review. The Honble High Court further noted that State Government has failed to furnish any official data as to the state of affairs relating to the forest cover or report of any committee constituted under the directions of the Honble Supreme Court to appreciate the concerns raised. The Court in its order dated 27th April 2005 has emphasized that the Court was required to pass the order dated 30th April 2004 on the application filed by the Interveners in CA-3045/2004. Thereafter, the State Government has not come before the Court with a comprehensive plan in order to make any commitment to as to what steps it is going to take in order to preserve the Eco-sensitive and Eco Fragile Zones around the National Parks and Wild Life Sanctuary. On the other hand, persons affected have sought intervention which was considered by the High Court on its individual merits and appropriate orders came to be passed. The Court also made it clear that the order dated 30th April 2004 has to be read in context of the Notification dated 26th April 2005 issued by the Ministry of Environment and Forest and in cases, State Government has got clearance to carry out non-forest activities from the Ministry of Environment and Forest, they can bring it to the notice of this Court and proceed in accordance with the working plan sanctioned by the Central Government.

10. The Court in its order dated May 3, 2012, extensively dealt with subject of the incidents of forest fires.

œThe respective Amicus Curie appearing in this matter have voiced concerned on growing number of fire incidents which are taking place in and around reserved forest. In two of the matters, the reserved forest i.e. Tadoba, Andheri Tigre Reserve Chandrapur is involved while in the third matter, the grievance is general.?

Mr. C.S. Kaptan, the Learned Amicus Curie however, had urged that even grass, small shrub/plants constitute and contribute environment and damage to them affects biodiversity which disturb ecology in the area. The High court further noted that, œFrom the details of the suspects who have been caught as mischief mongers, it appears that the local persons residing in some of the villages have created the problem. This cannot be said with certainty as investigations into the same are still going on. However, as the residents of such persons in various forest areas are inevitable for some time in future, a mechanism needs to be evolved to monitor their movements so as to prohibit them from causing such fires. This will also help honest villagers in undertaking their day-to-day activities without any fear.? The High Court in its order dated 5th July, 2002 had raised concern by referring MoEF letter dated 26/11/2001 regarding unutilized Forest development tax amount and also, inadequate fund allocation to forestry sector in the State.

11. We have heard Learned A.G.P. for the State. None appeared for the Applicant. We are at loss to, therefore, to know whether the Applicant desired to add anything further than what is stated in her Application/petition.

12. The Government authorities have submitted Affidavits and Progress Reports in this Writ Petition on several occasions. The Special Investigation Team had submitted the Report dated 16th June 2000 as per the Court orders and have proposed several measures for effective protection of the forest. The report of Special Investigation Team is on record. Chief Secretary, Govt. of Maharashtra filed an Affidavit on 26th June 2002, elaborately explaining the efforts being taken by the State Government for protection and development of the forests in the State. The Affidavit further gives details of the revenue collected on account of Forest Development Tax and its utilization through the budgetary appropriations which reveals that till the year 2002, a sum of about Rs.196 crores was collected as Forest Development Tax and the expenditure incurred was about Rs.60 crores. This action plan seems to be submitted in 2002 but copy of the same is not available on record, which is also mentioned in High Court order dated 29/06/2007.

13. It is also submitted in the Affidavit that although the expenditure incurred through appropriations is shown to be below the tax collection, this is mainly because the expenditure refers to expenditure under certain specified schemes mentioned in the budget that have been advanced from the tax collected under the Act. It is claimed that work of plantation and other allied activities are undertaken through many other schemes also and since, these schemes are financed from the Consolidated Fund and therefore, the actual amount expended on the work of plantation and allied activities is much greater than the expenditure referred to above. The Affidavit further refers to various efforts being made to get additional funds available for the forest protection and development activities either through Central Government or through lateral agencies. The Affidavit further mentions that the Forest Department is being provided with the required man power and the Forest Department has been advised to prepare an action plan as per the Courts order.

14. The Principal Chief Conservator of Forest has filed a detailed Affidavit on 18th June 2007 and has submitted pointwise progress on the various directions given by the Honble High Court. Some of the important aspects of the submissions are as follows :

i) The State is attempting to increase involvement of the villagers in prevention and suppression of fires through Joint Forest Management Programme. However, the necessary co-operation from the villagers is not forthcoming due to various reasons, including criminal intentions, inadequate powers to the Forest Staff and lack of employment opportunities for the villagers.

ii) The work of shifting of villagers from the sanctuaries is still continuing. In order to reduce the forest fires, special measures like round the clock vigilance, special squads, wireless network etc. have been initiated.

iii) The several difficulties and shifting of villagers and villages have been listed in the Affidavit.

15. The Forest Department has also filed an Affidavit dated 16th June 2007 mentioning that two Committees were appointed by Government of Maharashtra, one for Vidarbha Region and another for Western Maharashtra to suggest recommendations for effective control of fires. The recommendations made by the above Committees have been accepted by the State Government.

16. We have referred to the various points raised in the petition, more particularly, the illegal cutting of the Forest Trees, improper Forest Management for exploitation of the Forest Produce and depleting forest cover due to forest fires. We have also perused through the Affidavit filed by the Respondents and more particularly the Forest Department. We have also gone through the various orders and directions issued by the Honble High Court, Bombay, Nagpur Bench. This Bench of the National Green Tribunal has already delivered a Judgment in one of the similar Application No.135/13 (WZ).

17. Since 1996, the Honble Supreme Court of India has assumed the role of the principal decision maker so far as issues relating to forests and wildlife are concerned. This has been mainly due to Supreme Court's intervention through the following cases:

1. The T. N. Godavarman Thirumulkpad vs Union of India and ors (WP No 202 of 1995) concerning the implementation of the Forest Conservation Act, 1980.

2. The Centre for Environmental Law (CEL), WWF vs Union of India and ors (WP No 337 of 1995) concerning the issue of settlement of Rights in National Parks and Sanctuaries and other issues under the Wildlife (Protection) Act, 1972.

18. These cases are being heard for the last nine years and are a part of what is termed as "continuing mandamus", whereby the Courts, rather than passing final judgments, keeps on passing orders and directions with a view to monitor the functioning of the executive. They have led to fundamental changes in the pattern of forest governance and decision making.

Some examples include:

a) By virtue of the Supreme Court's order dated 13.11.2000 in the CEL WWF case (W.P. No. 337 of 1995), no forest, National Park or Sanctuary can be de-reserved without the approval of the Supreme Court.

b) No non-forest activity is permitted in any National Park or Sanctuary even if prior approval under the Forest (Conservation) Act, 1980 has been obtained.

c) The interim order dated 14.2.2000 prohibited the removal of any dead or decaying trees, grasses, drift wood etc. from any area comprising a National Park or a Sanctuary notified under Section 18 or 35 of the Wildlife (Protection) Act, 1972. It was also directed that if any order to the contrary has been passed by any State Government or other authorities the operation of the same shall be stayed. In order to advise the Supreme Court on the various issues concerning forest and wildlife conservation, the Central Empowered Committee (CEC) was set up as an authority under Section 3 (3) of the Environment (Protection) Act, 1986 to adjudicate on forest and wildlife related issues. Despite its wide impact and implication on forest management and governance most environment, human rights and activists groups and also the Government are not generally aware of the current developments in the Courts.

19. The Honble Supreme Court decision in The T.N Godavaram case AIR 1997 S.C.1228 states that the word œForest? must be understood according to dictionary meaning. The term Forest land will not only include œForest?

as understood in the dictionary sense but also any area recorded as forest in the Government record irrespective of the ownership. It further says œThe felling of trees in all forest is to remain suspended except in accordance with the working plans of the State Govts. as approved by central Govt.? The above definition/criterion is applicable to the strip forests which have been notified as protected forests in Govt. records for last 30-35 years. These are being worked / managed as per working plan/approved felling programmes. Forest Conservation Act (69 of 1980) S.2- Non Forest activity- Running of Saw Mills of any kind including veneer of plywood mills and mining “ Area non forest activities “ For doing such activity in forest prior permission of Central Govt. is necessary.

20. In œTirupur Dyeing Factory Owners Association Vs. Noyyal River Ayacutdars Protection Association and Ors., (2009) 9 SCC 737? the Supreme Court considering the question of water pollution by the dyeing industries, relying upon the precautionary principles as accepted being part of law of the land and the environmental law. In Vellor Citizens' Welfare Forum Vs. Union of India, œ(1996) 5 SCC 647? and further explained in M.C. Mehta Vs. Union of India, œ(2004) 12 SCC 118?, the Apex Court observed:- "requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment."

21. The Supreme Court, thereafter, observed in paragraphs 26 and 27 as follows:-

"26. The concept of "sustainable development" has been explained that it covers the development that meets the needs of the person without compromising the ability of the future generation to meet their own needs. It means the development, that can take place and which can be sustained by nature/ecology with or without mitigation. Therefore, in such matters, the required standard is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. The development of the industries, irrigation resources and power projects are necessary to improve employment opportunities and generations of revenue; therefore, cannot be ignored. In such eventuality, a balance has to be struck, for the reason that if the activity is allowed to go, there may be irreparable damage to the environment and there may be irreparable damage to the economic interest. A Similar view has been reiterated by this Court in T.N. Godavaram Thirumulpad (104) vs. U.O.I. and Ors. (2008) 2 SCC 222; and M.C. Mehta vs. Union of India and Ors. (2009) 6 SCC 142?.

22. Natural resources are the assets of entire nation. It is the obligation of all concerned including Union Government and State Governments to conserve and not waste these resources. Article 48A of the Constitution of India requires the State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country. Under Article 51A, it is the duty of every citizen to protect and improve the natural environment including forest, lakes, rivers and wild-life and to have compassion for living creatures. In the present case, the question is about conservation, preservation and protection of forests and the ecology. When forest cover is depleting due to various reasons, what measures are required to be taken to compensate for loss of forest land and to compensate effect on the ecology, is the main question under consideration. Forests are a vital component to sustain the life support system on the earth. Forests in India have been dwindling over the years for a number of reasons which is well documented.

23. Honble Supreme Court in its order dated 6/7/2011 in W.P. No. 202 of 1995, commonly known as Lafarge Case, has given several directions for improved forest management emphasizing the importance of National Forest Policy and also, role of Independent monitoring to regulate Forest clearances. Some of the recommendations of MoEF given in their affidavit dated 29/4/2011 have been incorporated in Court directions and are related to;

(a) œCreation and regular updating of a GIS based decision support database, tentatively containing inter-alia the district-wise details of the location and boundary of (i) each plot of land that may be defined as forest for the purpose of the Forest (Conservation) Act, 1980; (ii) the core, buffer and eco-sensitive zone of the protected areas constituted as per the provisions of the Wildlife (Protection) Act, 1972; (iii) the important migratory corridors for wildlife; and (iv) the forest land diverted for non-forest purpose in the past in the district. The Survey of India toposheets in digital format, the forest cover maps prepared by the Forest Survey of India in preparation of the successive State of Forest Reports and the conditions stipulated in the approvals accorded under the Forest (Conservations) Act, 1980 for each case of diversion of forest land in the district will also be part of the proposed decision support database.

(b) Completion of the exercise undertaken by each State/ UT Govt. in compliance of this Court's order dated 12.12.1996 wherein inter-alia each State/UT Government was directed to constitute an Expert Committee to identify the areas which are "forests" irrespective of whether they are so notified, recognized or classified under any law, and irrespective of the land of such "forest" and the areas which were earlier "forests" but stand degraded, denuded and cleared, culminating in preparation of Geo-referenced district forest-maps containing the details of the location and boundary of each plot of land that may be defined as "forest" for the purpose of the Forest (Conservation) Act, 1980?.

24. Considering foregoing discussion, we are of the opinion that the Application will have to be partly allowed in order to protect Environment and ecology, as well as the Forests area. Consequently, we partly allow the Application and give following directions:

1. The interim orders given by Honble High Court of Bombay, Nagpur Bench, on 30/4/2004 referred in para-9 above shall continue to operate, as the state government has not submitted the necessary data and reports on the present status of forest and an updated action plan to increase the forest cover in the state to the desired level and also, comprehensive statement of the compliance of various directions of Apex court and High Court, issued in this regard. The Tribunal is required to continue the interim orders on Pre-cautionary Principle basis in the absence of above information and Tribunal is willing to reconsider the position if the state government approaches the Tribunal with necessary data, reports and action plan. The said interim orders shall be part of this final order.

2. The Respondents shall make available necessary funds to forestry sector in the state, and especially, the required funds for rehabilitation of affected villagers/Tribals for relocation to the new habitats, without any delay, and in any case, they shall be provided with new accommodation with the required facilities, within a period of six (6) months hereafter.

3. The Respondents shall prepare a Disaster Management Plan (DMP) for protection of Forests and shall make available more number of G.P.S, fire beaters, fire brooms, fire rakes, Motor vehicle sets, Watch Towers by evolving particular standards based on scientific study and data collected, in accordance with the area of the Forests. So also, the Respondents shall provide Forests Guards, if necessary, on adhoc basis by way of stop gap arrangement by giving seasonal appointments, as part of Disaster Management Plan, to protect the Forests from untoward incidents of artificial fire caused by mischief mongers or due to accidents, particularly between onset of summer season and commencement of rainy season.

4. The Respondents may fix liability on the Licensees of Tendu leaves, for the forest fires if any, under the Public Liability Insurance Act,1991, at the time of giving licence while accepting licence fee.

5. The Respondents shall increasingly adopt advance remote Surveillance Techniques like satellite based web applications and GIS for developing decision support database, tentatively containing inter-alia the district-wise details of the location and boundary of (i) each plot of land that may be defined as forest for the purpose of the Forest (Conservation) Act, 1980; (ii) the core, buffer and eco-sensitive zone of the protected areas (iii) important migratory corridors for wildlife and (iv) the forest land diverted for non-forest purpose in the past in the district. The remote sensing tools can also be adopted for identifying the fires, among various Forest Management aspects.

6. Forest department shall place on record the report of expert committee formed in compliance of Honble Supreme Court Direction dated 12.12.1996 wherein each state government was directed to constitute an Expert Committee to identify the areas which are forests irrespective of whether they are so notified, recognised or classified under any law, and irrespective of land of such forest and the areas which were earlier forests but stands degraded, denuded and cleared. This report shall be submitted within 3 months and also, shall be made available on Forest departments website.

7. In addition to above measures, the Respondents shall comply with the standing orders of the Apex Court and High Courts regarding Forest protection and development, and may take any other steps, which are found necessary to conserve and protect the Forests in the State of Maharashtra.

8. The Respondent Nos. 1 and 2, shall display the complete information about, the number of incidents of fires in the Forest areas, area of Forest affected by such fires and any other related information in respect of the entire state, on the Departments website, which shall be updated on quarterly basis.

9. The Application is accordingly disposed of.

10. No costs.