Sanjay Upadhyay
Advocate Supreme Court of India
Managing Partner
Enviro Legal Defence Firm
August 2013
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Trends in Forest Cases-From Timber Use  Conservation
Mining & Mining leases (a privilege & not a right)
Property rights (forest-dwellers)
Procedure conflicts
◦ Inquiry
◦ Proforma
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Language of notification
Control over forest – Centre-state relations
Conflicts of jurisdiction within depts. of state.
Use of forest for non-forest purpose
Forest rights of forest dwellers
Application of FCA
◦ Provisions of FCA not only applicable on fresh leases of forest land but also on
those which are being renewed.
◦ Renewal not a matter of Right. (Ambica Quarry Works)
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WHY DID THE BRITISH DID NOT DEFINE
FORESTS?
THANK GOD FOREST HAS BEEN DEFINED
THE BIGGEST GAINERS?
◦ Anybody’s Guess!!!
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The Godavarman case represents the single biggest
judicial intervention in administration of forest in
the country and perhaps in the world!.
Judicial activism has been at its zenith -since 1995,
a few thousand Interlocutory Applications have
been filed representing different interest groups
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from different States,
different sectors,
non government organizations,
industrial sectors,
traders,
political interest,
social activists,
environmentalists,
forest dwellers………the list is endless.
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substantive and definitional issues such as definition of
forest, dereservation, wood based industry, working plans,
“encroachment”.
ecological aspects of forests such as conservation of forests,
ecologically sensitive areas,
strategies to deal with diseases on forests (sal borer),
removal of forest produce,
restrictions on clear felling and green felling.
economic role of forests such as forest land valuation
including compensatory afforestation and net present value
staffing and budgetary issues such as financial outlays for
forests and wildlife,
salaries of staff
the role and constitution of Forest Advisory Committee.
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The SC has also
◦ dealt with commercial and livelihood aspects of forestry in
relation to mining, sawmills, plantations and wood based
industries.
◦ The court has adopted numerous legal and judicial strategies
through inquistionary, advisory, judicial and statutory
Committees to assist itself in arriving at fair and just
decisions.
◦ It has adopted strategies to implement its own orders through
new and innovative methods by imposing pecuniary
restrictions to use of contempt proceedings.
◦ The case has also resulted in creation of new structures (
unheard in any part of the world) -the Central Empowered
Committee (CEC) which has been created under the powers of
the SC.
◦ Last but not the least, the role of amicus curiae is perhaps the
most evolved in this case.
Is this is a good sign?
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Running of saw Mills in close proximity of any
forest area banned.
All Wood based Industries to be relocated in
industrial zones earmarked by the
Government
Fresh Licenses for Saw mills to be awarded
after proper consultation with CEC
All mining in any forest area without prior
approval of the Union Government to be
banned.
Officers allowing illegal mining held in
contempt and vehicle and equipment of
miners seized
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Complete ban on movement of timber within and
outside the North Eastern States
Prior Certification by the HPC for Commercial use
of any Timber
State Governments of North East directed to come
up with guidelines for transit of timber in
consultation with MoEF
All other government departments like railways
directed to follow these guidelines
The Court has prohibited collection of dry, dead
and fallen wood from the PA’s.
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Clearance under FCA made mandatory for new as
well as leases to be renewed.
Non implementation of the Court order resulted in
blanket ban on mining (e.g. Aravallis).
The Court criticized inconsistent approach of the
Central and State Government on the issue of grant
of short term permits for mining.
Court took strong note of non implementation of its
directions and initiated contempt proceedings
against responsible officials.
Orissa Mining Case- new avenues created for cultural
and religious rights to be recognised
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To oversee implementation of Courts Order within the
Country.
Also assigned powers for dispute resolution and redressal of
grievance caused due to implementation of courts order for
State and Individuals
This committee comprised of nominees from the Union
Ministry, NGO’s and a representative of the Amicus Curiae
The Committee has since been notified under the
Environment Protection Act, then withdrawn and now under
the SC order.
De Facto the Committee has been placed above all High
Courts of the Country.
Two thoughts: While some laud the great tasks done… Is this good
institutionally for FD and if not what are we doing about it?
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Monitoring Committee to oversee
reafforestation, mining activities and other
related matters in Doon Valley Mining Matter
High Powered Committee for the North Eastern
region.
R. B. Lal Committee to present a report on the
Sal Borer issue
R.M.N. Sahay Committee on encroachment in
Thatkola resreve forest
Shekhar Singh Committee on Encroachment in
Andaman Nicobar Islands
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All encroachment on any forest to be
identified as pre 1980 and post 1980
All post 1980 encroachment to be phased
out in a time bound manner
State Government directed to come with
guidelines for removal of encroachment.
In this Process CEC to be consulted
But what is “encroachment”. Who decides?
What is the legal definition? Is it too
discretionary? Private forest? 1952?
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Constitution of CAMPA
Supply of timber and forest produce to industries including
government undertakings at full market rates
State of Assam revised the rates of the royalty on timber in Aug
1998 in pursuance to the Court order.
Creating a revolving fund from the amount realized out of the
penalties levied on the wood based industries and the proceeds
from the sale of seized timber as well as timber products
The Court had asked the State governments to frame rules with
respect to felling of tress from non-forest lands, with the
concurrence of the MOEF
◦ The Assam (Control of Felling and removal of tress from
non-forest lands) Rules, 2002, formulated
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Corporate Houses like pepsi and coke
imposed with cost for causing ecological
degradation: Himanchal Rock Painting
Case
Reliance Industries issued notice for
causing damage to a National Park in
M.P.
Emphasis on sustainable use of resource
for development and
precautionary principle
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Two cases which have had great influence
are the CEL WWF-India Case and the Navin
Raheja Case.
The CEL Case was filed to understand the
State position on settlement of rights in
national parks and sanctuaries
It was in this case that the Apex Court made
the clearance of National Board of Wildlife
mandatory before according clearance for
diversion of a forestland in any of the PA’s
for non-forestry purpose
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Lafarge case – Implementing Policy; Setting
up Institution; Joint Process in case of dispute
Ajay Dubey – Tiger Tourism
Orissa Mining Judgment- cultural and
religious rights to be inquired under FRA
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Is this just and environment versus development
case? No. It raises larger questions of due process
and the mess in which are environmental laws are!
Should we have such an unclear system where it
should take anyone to sort out a dispute in 14
years?
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Regulator for FP, 88 But why only for FP and why
not for Env Policy too?
Regional offices?
Regional CECs?
FC before EC?
Corporate Env Policy?
Completion of “WHAT IS FOREST”??
comprehensive policy for inspection, verification
and monitoring and the overall procedure relating
to the grant of forest clearances
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over active judiciary is a
sign of a weak Executive!
THANK YOU
+91-9810298530
sanjay@eldfindia.com
www.eldfindia.org