Uttarakhand High Court
Dr. Ajay Singh Rawat vs Union Of India & Another on 28 February, 2020
Bench: Sudhanshu Dhulia, Narayan Singh Dhanik
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No. 25 of 2020
Dr. Ajay Singh Rawat ....... Petitioner
Vs.
Union of India & another .......Respondents
Present: Mr. R.S. Bisht, Advocate for the petitioner.
Mr. Sanjay Bhatt, Central Government Standing Counsel for the
Union of India/respondent no.1.
Mr. S.N. Babulkar, Advocate General assisted by Mr. Paresh
Tripathi, Chief Standing Counsel for the State/respondent no. 2.
With
Writ Petition (PIL) No. 209 of 2019
Vinod Kumar Pande ....... Petitioner
Vs.
Union of India & others .......Respondents
Present: Mr. Vinod Kumar Pande, petitioner in person.
Mr. Sanjay Bhatt, Central Government Standing Counsel for the
Union of India/respondent no.1.
Mr. S.N. Babulkar, Advocate General assisted by Mr. Paresh
Tripathi, Chief Standing Counsel for the State/respondent nos. 2
to 4.
With
Writ Petition (PIL) No. 211 of 2019
Dr. Ajay Singh Rawat ....... Petitioner
Vs.
Union of India & another .......Respondents
2
Present: Mr. R.S. Bisht, Advocate for the petitioner.
Mr. Sanjay Bhatt, Central Government Standing Counsel for the
Union of India/respondent no.1.
Mr. S.N. Babulkar, Advocate General assisted by Mr. Paresh
Tripathi, Chief Standing Counsel for the State/respondent no. 2.
With
Writ Petition (PIL) No. 216 of 2019
Reenu Paul ....... Petitioner
Vs.
State of Uttarakhand & another .......Respondents
Present: None for the petitioner.
Mr. S.N. Babulkar, Advocate General assisted by Mr. Paresh
Tripathi, Chief Standing Counsel for the State/respondent no.1.
Mr. Azmeen Shiekh, Central Government Standing Counsel for the
Union of India/respondent no.2.
Coram: Hon'ble Sudhanshu Dhulia, J.
Hon'ble Narayan Singh Dhanik, J.
By the Court:-
There are four matters listed today on the Board. For the sake of convenience, Writ Petition (PIL) No. 25 of 2020 will be referred as 1, Writ Petition (PIL) No. 209 of 2019 as 2, Writ Petition (PIL) No. 211 of 2019 as 3 and Writ Petition (PIL) No. 216 of 2019 as 4.
2. All these writ petitions are in the form of Public Interest Litigation and by and large have raised the same issue. Under challenge before this Court are the two orders dated 21.11.2019 and 19.02.2020 respectively, whereby the State Government has apparently defined as to what constitutes a "forest" in Uttarakhand.
33. The earlier order dated 21.11.2019 was challenged in three petitions i.e. PIL Nos. 2, 3 & 4. English translation of the order dated 21.11.2019 has been supplied by the petitioner in Writ Petition No. 3, which is Annexure No. 3 to the writ petition, which reads as under:-
"Government of Uttarakhand Forest and Environment Section-3 No.-868/X-3-19-15(59)/2014 Dehradun: Date: 21 November 2019 Office Order The Governor, State of Uttarakhand, is pleased to grant sanction for the determination of the standards for defining a particular area as Deemed Forest in the following manner:
(a) "Forest" means the entire area notified as forest under the prevalent legislations of the State or the Centre applicable in the State of Uttarakhand.
(b) Apart from the area mentioned in para
(a) above, the area notified or recorded as forest in any of the revenue records of the State which is a compact patch of 10 hectare or more and whose canopy density is more than 60%, when measured by spherical densitometer, shall only be treated as "forest".
(c) Apart from the "forest" notified or mentioned in the aforesaid para (a) and (b) any other area, irrespective of ownership, which is a compact patch of 10 hectare or more, having more than 75% native tree species, and measured by spherical densitometer, shall only 4 be treated as "forest" whose canopy density is more than 60%, but any type or specie of garden/orchards shall not be included in the definition of the "forest"."
4. The actual challenge was only relating to clauses (b) and (c). As per clause (b), apart from what is given in clause (a), the area notified or recorded as forest in any of the revenue records of the State, which is a compact patch of 10 hectares or more, and whose canopy density is more than 60% when measured by spherical densitometer, shall be treated as "forest". As per clause
(c), where apart from the forest as defined in clauses (a) and (b), "the compact patch of 10 hectares or more, having more than 75% native tree species, and measured by spherical densitometer, shall be treated as "forest", whose canopy density is more than 60%, but any type or specie of garden/orchards shall not be included in the definition of the "forest".
5. What was apparently done by the new definition of "forest" was that large tracks of land which were till now "forest" or "forest land", have been taken out of the definition of "forest". The principal challenge to this notification was that this runs counter to what was defined as a "forest" by the Hon'ble Apex Court in the case of T.N. Godavarman Thirumulkpad Vs. Union of India (order in Writ Petitions (C) No. 202 of 1995 dated 12.12.1996 (reported in (1997)2 SCC 267), by order dated 12.12.1996.
6. A Division Bench of this Court stayed the operation and effect of this Government Order dated 5 21.11.2019, vide order dated 10.12.2019, as the Division Bench of this Court was of the opinion that prima facie the Government Order dated 21.11.2019 falls foul of the law declared by the Hon'ble Apex Court in the case of T.N. Godavarman (supra). The order dated 10.12.2019 passed by the Division Bench of this Court reads as under:-
"WPPIL No.209 of 2019, wherein a similar relief is sought, has been posted to 02.01.2019 to enable the respondents to file their counter affidavit.
2. Mr. Rajeev Singh Bisht, learned counsel for the petitioner, would draw our attention to the proceedings dated 05.12.2019, whereby the Deputy Inspector General of Forest, in the Ministry of Environment, Forest and Climate Change (Forest Conservation Division of the Government of India), informed the Principal Secretary (Forest), Government of Uttarakhand that the office order dated 21.11.2019, issued by Government of Uttarakhand on "deemed forest", was in contravention of the order passed by the Supreme Court in T.N. Godavarman Thirumulkpad Vs. Union of India (order in Writ Petitions (C) No. 202 of 1995 dated 12.12.1996 (reported in (1997)2 SCC 267); the said judgment stipulated that the term "forest land", occurring in Section 2 of the Forest Conservation Act, 1980, would not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government records irrespective of the ownership.6
3. The said proceedings dated 05.12.2019 goes on to add that, as per the order of the Supreme Court, the Forest Conservation Act, 1980 shall be applicable to all areas recorded as "forest" in any Government records, and any other area that has been considered to confirm the dictionary meaning of forest; the area recorded as forest in any Government records should be considered without any qualification; more over the State/Union Territories should not issue any communication that violates any order passed by the Supreme Court especially the said order dated 12.12.1996; and all States/Union Territories should also ensure that, while interpreting any clarification/communication issued from the Ministry of Environment and Forest, the letter and spirit of the order of the Supreme Court dated 12.12.1996 is not violated.
4. From the contents of the aforesaid letter it is evident that, even according to the Government of India, the office order issued by the Government of Uttarakhand dated 21.11.2019 is in violation of the order of the Supreme Court in T.N. Godavarman Thirumulkpad.
5. As it does appear, prima facie, that the Government order dated 21.11.2019 falls foul of the law declared by the Supreme Court, in T.N. Godavarman, there shall be interim stay of the said order, pending further orders in this writ petition."7
7. In the above order, there is also a reference of proceedings dated 05.12.2019 whereby the Ministry of Environment and Forest has also expressed its objections to the definition of forest given in Government Order dated 21.11.2019, as it was against the definition of forest given by the Hon'ble Apex Court in T.N. Godavarman case.
8. The State has filed its counter affidavit in Writ Petition nos. 2, 3 and 4, which are before this Court today.
9. Meanwhile, during the pendency of these writ petitions, the State Government has now come up with another Government Order dated 19.02.2020, which has been passed in supersession of all the earlier orders which would include the Government Order dated 21.11.2019 (which was challenged in PIL Nos. 2, 3 & 4). The present order dated 19.02.2020, now defines the forest in the State of Uttarakhand as under:-
"(A) Forest would mean the entire area notified as Forests under the provisions of the State or the Central Law applicable to the State of Uttarakhand.
(B) Apart from the area mentioned in the aforesaid para-(A), the area recorded as 'Forest' in Zamindari Abolition Khatauni (Record of Rights) under category 5(3)-A(1), A(2) & 5(3)-B(1) B(2) and the Non ZA Khatauni (Record of Rights) under category 9(3)(A), 9(3)(B) as per the settlement cover in any of the Revenue Records of the State, would be considered as 'Forest'.
(C) Apart from the 'Forest" enlisted of recorded as per the aforesaid paras-A and B, any other area of anyone's ownership, which consists of a Compact 8 patch of 05 hectares or more, having 75% or more native tree species and a canopy density of more than 40% shall only be considered as 'Forests'."
10. The material changes which the State Government has brought about by means of the present order are that as far a clause (A) is concerned, it remains the same as it was in the earlier Government Order dated 19.11.2019. In clause (B) of the Government Order dated 19.11.2019 a patch of a land which was declared as forest land in the revenue records, will continue to be called forests. The difficulty is with clause (C) as it was earlier. The only change which has been done is that the patch of land is now 5 hectares instead of 10 hectares and the canopy density has been reduced from 60% to 40%.
11. The question is whether the present definition still runs counter to what has been defined as "forest" in the Forest Act, 1927, and what has been defined by the Hon'ble Apex Court in T.N. Godavarman.
12. After hearing the learned counsels for the parties, this Court has absolutely no doubt in its mind that what has presently been done by the order dated 19.02.2020 is fundamentally the same as it was earlier in the Government Order dated 21.11.2019. The changes are merely cosmetic in nature, essentially the order remains the same, an order which has already been stayed by this Court. Apart from reiterating what has already been said by the Division Bench while staying the order dated 21.11.2019, we in addition would make the following observations:-
Article 48A, which is one of the Directive Principles of the State Policy and hence a Charter of 9 Instructions to every Government to follow and which is fundamental to the governance of the State, states that "the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country". Prima facie, it is our opinion, that what the present impugned Government Order seeks to do is to take away the henceforth land defined as "forest" out of the protected umbrella of forest.
13. We say this for the reason that what constitutes a forest has actually been defined in the Forest Act, 1927 by way of an amendment brought by the State of Uttar Pradesh way back in the year 1960. A new Chapter was introduced, which is Chapter V-A with the heading "OF THE CONTROL OVER FORESTS OF CLAIMANTS". Here forest was defined under Section 38-A(b) which is an extremely wide definition, which reads as follows:-
"Section 38-A. Definition.- In this Chapter unless there is anything repugnant in the subject or context;
(a).....
(b) 'Forest" means a tract of land covered with tress, shrubs, bushes or woody vegetation whether of natural growth or planted by human agency, and existing or being maintained with or without human effort, or such tract of land on which such growth is likely to have an effect on the supply of timber, fuel, forest produce, or grazing facilities, or on climate, steam-flow, protection of land from erosion, or other such matters, shall include-10
(i) land covered with stumps of trees of a forest;
(ii) land which is a part of a forest or lies within it or was part of a forest or was lying within a forest on the first day of July, 1952;
(iii) such pasture land, waterlogged or cultivate or non-cultivable land, lying within, or adjacent to, a forest, as may be declared to be a forest by the State Government."
14. The notice of the aforesaid provision was taken by the Hon'ble Apex Court in the case of State of Uttarakhand and others vs. Kumaon Stone Crusher reported in (2018) 14 SCC 537. The said case went before the Hon'ble Apex Court from an order of the High Court of Uttarakhand, which had taken a narrow view of the definition of "forest" in a matter. This view was not approved by the Hon'ble Apex Court in the aforesaid case and referring to the definition of "forest" under Section 38- A, as referred above, the Hon'ble Apex Court had observed as under:-
"127. It is relevant to note that even before this Court's definition in T.N. Godavarman Case (1997) 2 SCC 267 in an expansive manner, the forest was understood by the State Legislature in a very wide manner. This is reflected by the "definitions" of "forest" and "forest land" as given in Section 38-A inserted by Uttar Pradesh Amendment Act 5 of 1956 with effect from 3-12-1955."11
15. Thereafter after quoting the necessary provision as contained in Section 38-A of the Act, the Hon'ble Apex Court further observed as under:
"128. The definition of "forest" as contained in Section 38-A (b), as noticed above, gives very wide definition of forest and giving restrictive meaning of forest in view of the wide definition given by the State Legislature cannot be accepted. We, thus, are of the view that the interpretation of forest as given by the Division Bench in its judgment dated 11.11.2011 has to be approved and the restrictive definition as given by the Uttarakhand High Court in its judgment dated 26.06.2007 in Gupta Builders cannot be approved. We, thus, reject the submission of the learned counsel for the petitioners to adopt a restrictive meaning of the word "forest".
16. The Hon'ble Apex Court as well in its order dated 12.12.1996 passed in T.N. Godavarman Thirumulkpad vs. Union of India and others reported in (1997) 2 SCC 267 has defined the "forest" as under:-
"The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of 12 ownership or classification thereof. The word "forest" must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof."
17. We are of the prima facie view that although the land which has been defined as "reserved forest" and "protected forest", under Sections 3 & 29 respectively of the Forest Act, 1927 is not liable to be touched by the present definition of "forest", but there is a large area of land which though is a forest, but still remains as "unclassified forest". It is this "forest" which will be taken out of the purview and definition of forest.
18. As per the statistics given by the Forest Survey of India in the year 2019, which has been placed before 13 this Court and made a part of record as Annexure 'A', the entire recorded forest area of the State of Uttarakhand is 71.05% of the entire geographical area of Uttarakhand.*
19. Out of this entire recorded forest area, the reserve forest area is 69.86%, protected area is 26.01% and "unclassified forest area" is 4.13%. Prima facie this unclassified though still a forest land is sought to be removed out of the definition of "forest". This runs counter to the definition of "forest" as given in Section 38-A of the Forest Act (U.P. Amendment) as well as counter to the orders of the Hon'ble Apex Court in T.N. Godavarman case (supra).
20. The learned Advocate General Sri S.N. Babulkar assisted by Mr. Paresh Tripathi, learned Chief Standing Counsel, appears in this matter and has apprised this Court of the difficulties faced by the State Government particularly the development activities and the projects which are yet to be undertaken. It has also been stated before this Court that what has been done by the State Government was done on the directions of the National Green Tribunal in its order dated 21.07.2018 in the matter of Brinda Singh vs. Ministry of Environment, Forest and Climate Change & Ors (M.A. No. 104 of 2018 & M.A. No. 430 of 2018) and the interim order passed by the Hon'ble Apex Court in Civil Appeal No. 8560 of 2018, where a reference was made of a report/recommendations of the Court Commissioner. The * The entire geographical area of Uttarakhand is 53483 sq.kms. Out of this area, the recorded forest area is 38000 sq.kms. which is 71.05% of its entire geographical area.
14recommendation/report of the Court Commissioner is as under:
"vi. The State of Uttarakhand be directed to finalise the criteria and standard to determine what constitutes "Deemed forest" for the purpose of FC Act within a stipulated time frame considering that draft criteria was prepared way back in 2014."
21. The matter was taken up before the Hon'ble Apex Court and the Hon'ble Apex Court in its order dated 07.05.2019 directed the Ministry of Environment and Forest "to take immediate steps in pursuance of sub-para
(vi) of the Committee report and tell us by way of an affidavit, to be filed within two weeks from today, as to what steps have been taken to finalise the said criteria and standards".
22. The learned Advocate General would thus argue that what has been done was in compliance of the orders of the National Green Tribunal as well as the interim order of the Hon'ble Apex Court. The fact, however, remains that the Civil Appeal No. 8650 of 2018 pending before the Hon'ble Apex Court was ultimately dismissed by the Hon'ble Apex Court vide its order dated 11.02.2020 with the following orders:
"Regard being had to these facts and regard being had to the fact that so far as sub-clause (vi) of the conclusions of the learned Court Commissioner's report is concerned, the matter is being decided by the High Court, we are of the opinion that the appeal needs to be dismissed.
The appeal is, accordingly,
dismissed."
15
23. It appears that by this time, the first order of the State Government dated 21.11.2019 had already been challenged in the form of PIL Nos. 2, 3 & 4 before this Court, a fact which was stated before the Hon'ble Apex Court, which resulted in the said order.
24. The learned Advocate General has also said that in effect by the present definition of forest, the forest area will increase and not decrease. We, however, fail to understand how can this be so.
25. Having heard the submissions of the learned Advocate General, we still are of the opinion that the Government Order dated 19.02.2020 which has been challenged before this Court in PIL No. 1 runs counter to the statutory definition of "forest" as given under Section 38-A of the Forest Act as well as runs counter to the definition of "forest" as given by the Hon'ble Apex Court in the case of T.N. Godavarman case (supra).
26. We may just touch upon another aspect of the matter, which is that what constitutes a "forest" stands defined under Section 38-A* of the Forest Act, 1927. It is a very wide definition and though it gives powers to the State to include further the adjoining areas of forest as "forest", it does not give it the power to reduce forest area, even by ingeniously redefining as to what is "forest".
27. No amount of ingenious paraphrasing can defend the State Government Order dated 19.02.2020. It is prima facie in violation of the law as already stated above.
*Vide U.P. Act No. 21 of 1960.
1628. We therefore stay the operation and effect of the order dated 19.02.2020 until further orders of this Court.
29. List these matters after four weeks in the daily cause list.
(Narayan Singh Dhanik, J.) (Sudhanshu Dhulia, J.) 28.02.2020 Avneet/