Kerala High Court
Jairaj A.P. vs The Chief Conservator Of Forests ... on 7 February, 1996
Equivalent citations: AIR1996KER362, AIR 1996 KERALA 362, ILR(KER) 1996 (2) KER 270 (1996) 1 KER LJ 364, (1996) 1 KER LJ 364
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT
Thomas, Ag. C.J.
1. Parambikulam Wildlife Sanctuary is a representative unit of the western ghats exhibiting a complex mosaic vegetation ranging from dry deciduous plants to the ever-green composition of tropical rain forests. The wild life in the sanctuary includes both herbivorous and carnivorous such as sambar deer, spotted deer, Asaitic elephants, leopards and few tigers besides sloth bear and civets. A number of rare birds were spotted in this sanctuary by Dr. Salim Ali in his book "Birds of Kerala", Forest Department carved three zones for operational facilities -- core zone, buffer zone and tourism zone -- in the said sanctuary.
2. The State Government have a proposal to construct a "Forest Lodge" in the buffer zone of the sanctuary. As the proposal registered fast progress, appellant, who claims to be a bird watcher and committed to conservation, filed the Original Petition under Article 226 of the Constitution to issue a writ of prohibition against construction of the Forest Lodge in the Parambikulam Wildlife Sanctuary. As the original Petition was dismissed by the learned single Judge, he has come up with this appeal under Section 5 of the Kerala High Court Act.
3. Description of the flora and fauna of the sanctuary as delineated in the Original Petition is fully concurred with by the State which resisted the Original Petition. If contended that the proposal for construction of Forest Lodge in the "buffer zone" is supported by permission granted by the Ministry of Tourism, Government of India, which provides the fund for the same purpose. The "Forest Lodge" is intended to be used for providing amenities "to the public who are interested in the serene environmental preservations and to enjoy the nature's beauty."
4. The pivotal contention advanced by Smt. H. Subhalekshmi, learned counsel who addressed arguments for the appellant, is that the proposed construction of the lodge is without prior approval of the Central Government and is hence violative of Section 2 of the Forest (Conservation) Act, 1980 (for short 'the Act'). Section 2 of the Act forbids the State Government or any other authority from making any order directing that any reserved forest shall cease to he reserved or that any forest land including any portion thereof can be used for "any non-forest purpose" except with the prior approval of the Central Government.
5. What is meant by "non-forest purpose" has been explained by the Forest (Conservation) Amendment Act, 1988 through the amendment of Section 2 of the principal Act. The said explanation reads thus :
"Explanation -- For the purpose of this section "non-forest purpose" means the breaking up or clearing of any forest land or portion, thereof for:--
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;
(b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild life, namely the establishment of check-posts, fire lines, wireless communications and construction of fencing bridges and culverts dams, water-holes, trench marks, boundary marks, pipe lines or other like purposes."
Learned government pleader has adopted a twin strategy to circumvent Section 2 of the Act. First is to convince us that there is no act of breaking up or clearing of forest land for the purpose of constructing the Forest Lodge. Second is to show that construction of Forest Lodge is a work ancillary to conservation, development and management of forests and wildlife.
6. First contention of the learned Government Pleader has no support from the factual position because it is admitted by the Government in their counter that some trees have to be felled though there is dispute regarding the number of such trees. In the strict sense clearance of forest land will take place even by cutting down one tree therefrom. At any rate, there is no doubt that multiplicity of trees have to be cut and removed, though appellant would say that more than a dozen trees are to be chopped of for this purpose. Hence whatever be the number of trees involved we hold that clearance of forest land is necessary for constructing the proposed Forest Lodge.
7. Regarding the second contention, the work "ancillary to the conservation, development and management of forests and wide life" has been catalogued in the Explanation as (1) establishment of check posts, fire lines and wireless communications, (2) construction of fencing, (3) construction of bridges and culverts, (4) construction of dams, waterholes, trench marks, boundary marks or pipe lines "or other like purposes". Learned Government Pleader relied on the last residuary limb "or other like purposes" and contended that the proposed construction would fall within the scope of that limb. But a reading of the clause shows that the last residuary words include only those activities which are analogous or similar to the other activities catalogued. According to the learned Government Pleader, the purpose of constructing the Forest Lodge is to provide accommodation to inspecting officers and students from schools and colleges who attend nature camps as well as to wildlife enthusiasts researchers, scientists and bird watchers etc. He contended that those purposes would fall within the residuary limb "or other like purposes".
8. The requirement in Section 2 for prior approval of Central Government must be strictly construed as any relaxation of it would be perilous to the fast depleting forest wealth of the country. One of the directive principles of State Policy is to "safeguard the forests and wild life of the country" (Article 48A of the Constitution). One of the fundamental duties of every citizen of India is to protect and improve forests (Article 51-A Clause (g)). So clearance of forest area should be allowed only as a stark exception. When Parliament insisted that such clearance can be made only with the prior permission of Central Government the rule should be rigorously followed. Forest wealth is already an endangered bounty of nature.
9. The alternative contention adopted is that Ext. R 1(a) which is a communication sent by the Government of India (Ministery of Tourism) dated 12th December 86 must be treated as the approval accorded by the Central Government for satisfying the condition imposed in Section 2 of the Act. It communicates the decision of that department regarding sanction of more than twelve lakhs of rupees for construction of the Forest Lodge at Parambikulam.
10. The Forest (Conservation) Rules formulated by the Central Government in 1981 contains provisions for according approval envisaged in Section 2 of the Act. Rule 4 enjoins on the State Government seeking prior approval to send its proposal to the Central Government in the form appended thereto. The proposal shall be sent to the Secretary to the Government of India, Ministry of Environment and Forests. On receipt of the proposal, the Central Government has to refer it to the Committee of experts (composed of persons mentioned in Rule 2-A) for its advice. Approval can be granted by the Central Government only after considering the advice of the Committee and after conducting such further enquiry as it may consider necessary. We have no doubt that Ext. R1(a) does not satisfy the above conditions prescribed in the Rules. Hence Ext. R1 (a) cannot be regarded as prior approval envisaged in Section 2 of the Act.
In the result, we issue a writ of prohibition against the respondents from proceeding with the proposal for the construction of Forest Lodge in the Parambikulam Wildlife Sanctuary. But we make it clear that this judgment is without prejudice to the right of the respondents to obtain the approval of the Central Government as envisaged in Section 2 of the Act. We direct the State Government to pay a sum of Rs. 2,500/- as advocate's fee to Smt. Subhalekshmi, counsel for the appellant, Writ Appeal is disposed of accordingly.