B.S. SANDHU Vs GOVERNMENT OF INDIA .
Bench: A.K. PATNAIK,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: C.A. No.-004682-004683 / 2005
Diary number: 25006 / 2004
Advocates: KAUSHIK PODDAR Vs
JAGJIT SINGH CHHABRA
CA Nos. 4682-4683 of 2005
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ITEM NO.1A COURT NO.2 SECTION IV [FOR JUDGMENT]
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 4682-4683 OF 2005
B.S. SANDHU Appellant (s)
VERSUS
GOVERNMENT OF INDIA & ORS. Respondent(s)
WITH Civil Appeal NO. 4684-4685 of 2005 [DASHMESH EDUCATIONAL SOCIETY V. PUNJAB URBAN DEVELOPMENT AUTHORITY & ORS.]
Civil Appeal NO. 4799-4800 of 2005 [SURESH SHARMA &ORS. V. B.S. SANDHU & ORS.]
Civil Appeal NO. 4798 of 2005 [BHARTIYA KISAN UNION TH. VICE PRESIDENT V. STATE OF PUNJAB AND ORS.]
SLP(C) NO. 19226 of 2013 [B.S. SANDHU (RETD.) V. UNION OF INDIA & ORS.]
SLP(C) NO. 20235 of 2013 [HARMESH KUMAR & ORS. V. U.O.I. & ORS.]
Date: 21/05/2014 These Appeals/Petitions were called on for pronouncement of judgment today.
For Appellant(s) in CA 4682-83 & 4684-85
Mr. Ashwani Chopra, Sr. Adv. Mr. Rudreshwar Singh, Adv. Mr. Raman Walia, Adv. Mr. Kaushik Poddar, Adv.
In CA 4799-800 Mr. Puneet Bali, Sr. Adv.
Mr. Raman Walia, Adv. Mr. Rameshwar Prasad Goyal, Adv.
In CA 4798 Mr. Puneet Bali, Sr. Adv. Mr. Raman Walia, Adv. Mr. Ajit Kumar Pande, Adv.
In SLP 19226 Mr. Ashwani Chopra, Sr. Adv. Mr. Rudreshwar Singh, Adv. Mr. Raman Walia, Adv.
CA Nos. 4682-4683 of 2005
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Mr. Samir Ali Khan, Adv.
In SLP 20235 Mr. Shree Pal Singh, Adv.
For Applicant (s) Mr. Ashwani Chopra, Sr. Adv. Mr. Rudreshwar Singh, Adv. Mr. Kaushik Poddar, Adv.
For Respondent(s) in CA 4682-83
Mr. Prashant Kumar, Adv. Mr. Alok Kumar, Adv.
Mr. B.V. Balaram Das, Adv. Mr. P. Parmeswaran, Adv.
Mr. Ashiesh Kumar, Adv.
Mr. Bimal Roy Jad, Adv.
In CA 4682-83 & 4799-800 Mr. A.D.N. Rao, Adv.
In CA 4682-83, 4684-85 & 4799-800 Mr. Ajay Bansal, AAG.
Mr. Rakesh Kumar, Adv. Mr. Kuldip Singh, Adv. Mr. Jagjit Singh Chhabra, Adv. Mr. Dheeraj Gupta, Adv. Mr. Devendra Singh, Adv. Mr. Rajeev Kumar, Adv. Mr. Gaurav Yadav, Adv. Mr. Pardaman Singh, Adv.
*****
C.A. Nos. 4682-4683 of 2005, C.A. Nos. 4799-4800 of 2005 and C.A. No. 4798 of 2005
Hon'ble Mr. Justice A.K. Patnaik pronounced the
judgment of the Court for a Bench comprising of His
Lordship and Hon'ble Mr. Justice Fakkir Mohamed
Ibrahim Kalifulla.
For the reasons stated in the signed reportable
judgment, we set aside the finding of the High Court
that the entire land in village Karoran, District
CA Nos. 4682-4683 of 2005
3
Ropar is 'forest land' for the purpose of Section 2
of the Forest (Conservation) Act, 1980 and remand
the matter to the High Court for fresh hearing and
fresh order in accordance with law. Consequently,
all directions in the impugned order which flow out
of the aforesaid finding of the High Court that the
land was 'forest land' for the purpose of Section 2
of the Forest (Conservation) Act, 1980 are set
aside. We, however, make it clear that we have not
set aside the directions for investigation by the
CBI in the impugned order.
The appeals stand disposed of.
C.A. Nos. 4684-4685 of 2005, SLP(C) Nos. 19226/2013 and 20235/2013
These matters being separate from the matters
in which the judgment has been delivered today are
de-linked and will be listed separately for
hearing.
[KALYANI GUPTA] COURT MASTER
[RENU DIWAN] COURT MASTER
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE.]
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4682-4683 OF 2005
B.S. Sandhu … Appellant Versus
Government of India & Ors. … Respondents
WITH
CIVIL APPEAL NOs. 4799-4800 OF 2005 AND
CIVIL APPEAL NO. 4798 OF 2005
J U D G M E N T
A. K. PATNAIK, J.
These Civil Appeals have been filed by way of special
leave under Article 136 of the Constitution against the
common order dated 12.10.2004 of the Division Bench of
the Punjab and Haryana High Court in CWP No. 1134 of
2004 and CWP No. 1850 of 2004.
Facts of the Case:
2. CWP No. 1134 of 2004 is a Public Interest Litigation
entertained by the High Court suo motu pursuant to a
2
news item published on 22.01.2004 in the Hindustan
Times (‘HT Chandigarh Live’). This news item was titled
‘Forest Hill Club under Central Government Scanner’,
and it stated that the Ministry of Environment and
Forest, Union of India, has found that a Forest Hill Golf
and Country Club in Village Karoran, District Ropar,
near Chandigarh was being developed in blatant
violation of the environmental and forest laws as well as
the orders passed by this Court in December 1996. The
news item further stated that the Forest Department of
Government of Punjab had informed the Union Ministry
of Environment and Forest that the entire area, on
which the golf course had been set up, was closed
under the Punjab Land Preservation Act, 1900 (for
short ‘PLP Act, 1900’) and was a ‘forest area’, which
attracted the provisions of the Forest (Conservation)
Act, 1980, but the Punjab Government permitted
change of land use as a quid pro quo because a large
number of top IAS and IPS officers and other decision-
makers have been given honorary membership of the
club or have been allowed to use the premises and
3
facilities of the Club for private functions.
3. CWP No. 1850 of 2004 was filed by one Ranjeet Singh
as a writ petition under Article 226 of the Constitution.
In the writ petition, it was inter-alia stated that village
Karoran is located in Kharar Tehsil of District Ropar
and is about eight kilometers to the North-west of
Chandigarh and the entire area of the village measuring
about 3700 acres is covered under PLP Act, 1900, and
this area measuring about 3700 acres of village
Karoran is also shown as ‘forest area’ in the Annual
Administration Report and the Register of Forest Area
of the forest department. It is further stated in the writ
petition that pursuant to the order dated 12.12.1996
passed by this Court in T.N.Godavarman Thirumulkpad
v. Union of India & Ors. (1997) 2 SC 267, an Expert
Committee was set up by the Government of Punjab to
identify the forest areas of the State of Punjab, and this
Expert Committee included the entire area of Karoran
village as forest area in its report, and accordingly an
affidavit was filed on behalf of the State Government in
March, 1997 in this Court, showing the entire area of
4
Karoran village as part of the forest areas of the State of
Punjab. It is also stated in the writ petition that the
entire area of Karoran village was included as forest
area in the management plan prepared by the State
Forest Department and the management plan was
approved by the Ministry of Environment and Forest
vide its letter dated 14.12.1998. The case made out in
the writ petition was that Section 2 of the Forest
(Conservation) Act, 1980 was applicable to any land in
the Karoran village and, therefore, the land could not
have been diverted for non-forest activities without the
prior permission of the Central Government.
4. Col. B.S. Sandhu, who was the proprietor/Managing
Director of the Forest Hill Golf and Country Club,
contended before the High Court that merely because
village Karoran is covered under the PLP Act 1900, the
lands comprising the area of village Karoran do not
become ‘forest land’. He further contended that the
lands in village Karoran on which the Forest Hill Golf
and Country Club has been constructed were private
lands acquired by sale deeds by the Dashmesh
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Educational Society formed by him for a period of eight
years from different owners and some of the lands are
agricultural lands and some of the lands are
uncultivable waste lands (Gair Mumkin Pahar) and
unless a formal notification was issued under Section
35 of the Forest Act, 1927 notifying a private land as
‘forest land’, a private land cannot be treated to be
‘forest land’. Col. B.S. Sandhu also contended before
the High Court that the fact that the State Forest
Department had shown the entire land in village
Karoran as under the administrative control of the
Forest Department does not also make the entire land
in Karoran village to be the ‘forest land’. He further
contended before the High Court that the entries in the
revenue records of the State Government would show
that the land in village Karoran on which the club has
been established is not ‘forest land’. He, however,
conceded before the High Court that pursuant to the
orders passed by this Court in T.N.Godavarman
Thirumulkpad v. Union of India & Ors. (supra) on
12.12.1996, the Expert Committee constituted by the
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State of Punjab initially identified all the ‘forest areas’
including those owned by private land owners in village
Karoran measuring 3700 acres as ‘forest land’ and an
affidavit was also filed on 21.02.1997 on behalf of the
Forest Department, Government of Punjab, in this
Court accordingly, but he submitted before the High
Court that pursuant to affidavits filed on behalf of the
State Government, orders were passed by this Court in
I.A. No.727 in T.N. Godavarman Thirumulkpad’s case
(W.P.(C) No.202 of 1995) deleting large portions of land
under habitation in village Karoran from the ‘list of
forest areas’ in the State of Punjab.
5. The High Court, however, rejected the contentions
made on behalf of Col. B.S. Sandhu in Civil Appeal
Nos.4682-4683 of 2005 and held that the entire land of
village Karoran which has been notified under Section 3
of the PLP Act, 1900 and is regulated by the prohibitory
directions notified under Sections 4 and 5 of the
aforesaid PLP Act, 1900 is ‘forest land’ and attracts the
provisions of Section 2 of the Forest (Conservation) Act,
1980 if sought to be used for ‘non-forest purpose’. The
7
High Court also held that in the records of the Forest
Department of the Government of Punjab, the entire
land of village Karoran was shown to be ‘forest land’
and the entries in the revenue record regarding the
nature of the land were changed by the officers of the
Revenue Department of the Government of Punjab at
the behest of Col. B.S. Sandhu for the obvious reason
that he was eyeing this big chunk of land for his
personal gains. The High Court, therefore, discarded
the latest entries of the revenue record and instead
accepted the records of the Forest Department to hold
that the land in question was ‘forest land’. The High
Court further held that in T.N.Godavarman’s case, this
Court has in its order dated 12.12.1996 defined the
term ‘forest land’ occurring in Section 2 of the Forest
(Conservation) Act, 1980 to include not only ‘forest’ as
understood in the dictionary sense, but also any area
recorded as forest in the Government record
irrespective of the ownership. The High Court held that
as the land in village Karoran was recorded in the
records of the Forest Department of the Government of
8
Punjab to be ‘forest land’, the same was ‘forest land’
within the meaning of Section 2 of the Forest
(Conservation) Act, 1980. The High Court also held
that the entire 3700 acres of land in the village Karoran
was identified as ‘forest land’ by the Expert Committee
constituted by the State of Punjab in its report dated
19.02.1997 and the State Government filed its affidavit
dated 21.02.1997 before this Court along with the
report of the Expert Committee. The High Court took
note of the fact that pursuant to hardships experienced
by the owners of some of these lands in village Karoran
and pursuant to numerous representations, the State
Government did examine the issue afresh and excluded
a portion of the land from the ‘list of forest areas’, but
Col. B.S. Sandhu and his associates cannot derive any
benefit or advantage from this stand of the State
Government.
6. With the aforesaid findings, the High Court allowed the
writ petitions directing Col. B.S. Sandhu and the
companies and/or the societies floated by him to
immediately close down its entire enterprise known as
9
‘Forest Hill Country Club Resort and Golf Course’ and
to demolish all the illegally erected buildings within a
period of three months and to handover the
‘management’ and ‘control’ of the land in question to
the State Forest Department. The High Court also
directed the Revenue Department, Government of
Punjab, to carry out all necessary corrections in the
‘records of rights’ regarding the ‘forest land’ falling
within the revenue estate of village Karoran, Tehsil
Kharar, District Ropar and directed the Punjab State
Electricity Board, through its Chairman, to discontinue
the power supply forthwith to the Forest Hill Resort and
directed the Commissioner of Excise and Taxation
Department, Government of Punjab, to cancel L-2
licence issued in favour of the Forest Hill Resort. The
High Court also directed the Central Bureau of
Investigation through its Director to constitute a
Special Investigation Team to be headed by an officer
not below the rank of Deputy Inspector General, which
shall hold a through probe into the question of
accountability of top executive and administrative
10
functionaries of the departments concerned of the
Government of Punjab, some officers of the Central
Government in relation to establishment and
development of the Forest Hill Golf and Country Club at
village Karoran and to report as to whether any one of
them indulged in taking direct or indirect gratification
and/or acted in violation of the Conduct Rules and to
constitute a Special Investigation Team of the Central
Bureau of Investigation to inquire into and submit its
report as to how much lands are actually owned by Col.
B.S. Sandhu, his family members and/or the societies/
companies floated by them.
7. Aggrieved by the impugned order, Col. B.S. Sandhu has
filed Civil Appeal Nos.4682-4683 of 2005. Aggrieved by
the impugned order, some agriculturists, house owners
and shop owners of village Karoran have filed Civil
Appeal Nos. 4799-4800 OF 2005 and the Bhartiya
Kisan Union, which is a union of farmers has filed Civil
Appeal No.4798 of 2005, challenging, in particular, the
finding of the High Court that the entire land in village
Karoran is ‘forest land’ covered under Section 2 of the
11
Forest (Conservation) Act, 1980 and cannot be used for
non-forest purposes without the prior permission of the
Central Government.
Contentions on behalf of the Parties:
8. At the hearing of these appeals, learned counsel for the
appellants submitted that the conclusion of the High
Court in the impugned order that the entire land of
village Karoran, District Ropar, which has been notified
under Section 3 of PLP Act, 1900 and which is being
regulated by the prohibitory directions notified under
Sections 4 and 5 of the PLP Act, 1900 is ‘forest land’ is
not correct in law. They referred to the provisions of
the PLP Act, 1900 to show that the aforesaid Act was
meant to preserve and protect the land situated within
or adjacent to Shivalik Mountain Range. They argued
that the notification issued under Section 3 of the PLP
Act, 1900, therefore, covered both ‘forest’ and ‘non-
forest land’ and therefore a notification under Section 3
of the PLP Act, 1900 closing a particular land under the
said Act would not per se make the land a ‘forest land’.
12
9. Learned counsel for the appellants further submitted
that the High Court has gone by only the records of the
Forest Department in which the entire land of 3700
acres in village Karoran, District Ropar, was shown as
within the administrative control of the Forest
Department. They argued that the land which is under
the administrative control of the Forest Department
does not become ‘forest land’ only because the Forest
Department exercises control over that land. They
submitted that an affidavit was filed on behalf of the
Government of Punjab in this Court pursuant to the
order dated 12.12.1996 of this Court in T.N.
Godavarman Thirumulkpad v. Union of India & Ors.
(supra), on the basis of the report of the Expert
Committee constituted by the State Government for
identification of forest areas in the State of Punjab in
February, 1997 stating that the entire 3700 acres of
land in village Karoran, District Ropar, was ‘forest land’
but subsequently the State Government realised the
mistake and filed an affidavit in October, 1999 before
this Court for excluding portions of the land in village
13
Karoran, District Ropar, from the list of ‘forest areas’
earlier furnished by the State of Punjab to this Court
saying that such land was under cultivation and
human habitation and the farmers who were cultivating
the land and those who were living in the land will
suffer immense hardship if the land continues to be
‘forest land’ for the purpose of Section 2 of the Forest
(Conservation) Act, 1980.
10. Learned counsel appearing for the State of Punjab, on
the other hand, submitted that whether a particular land is
‘forest land’ for the purpose of Section 2 of the Forest
(Conservation) Act, 1980 has to be decided in accordance
with the order dated 12.12.1996 of this Court in T.N.
Godavarman Thirumulkpad v. Union of India & Ors. (supra)
as there is no definition of forest either in the Forest
(Conservation) Act, 1980 or in the Indian Forest Act, 1927.
He submitted that this Court in M.C. Mehta vs. Union of
India [(2004)12 SCC 118 – (hereinafter referred to as ‘the
first M.C. Mehta case’) has taken the view that if the State
Forest Department has been treating and showing a
particular area as forest, that area is to be treated as forest
14
and if such area was to be used for non-forest purposes, it
was necessary to comply with the provisions of the Forest
(Conservation) Act, 1980. He submitted that this view was
again endorsed by this Court in M.C. Mehta vs. Union of
India and Ors. [JT 2008 (6) SC 542 – (hereinafter referred to
as ‘the second M.C. Mehta case’). He referred to the Annual
Report of the East Punjab (Forest Department) to show that
the entire land in village Karoran, District Ropar, under the
PLP Act, 1900 was under the Forest Department and
submitted that in view of the decisions of this Court in the
first and the second M.C. Mehta cases, the entire land in
village Karoran, District Ropar, including the land of Col.
B.S. Sandhu was ‘forest land’ and could not be diverted for
non-forest purposes without the permission of the Central
Government as provided in Section 2 of the Forest
(Conservation) Act, 1980.
11. The Member Secretary of the Central Empowered
Committee (for short ‘the CEC’) referred to the records of I.A.
727 in T.N.Godavarman Thirumulkpad v. Union of India &
Ors. (supra) (Writ Petition No.202 of 1995) to show that the
proposal of the State Government to exclude an area of
15
69,367 ha. out of 1,68,224 ha. closed under the PLP Act,
1900 from the list of forest areas was examined by the CEC
and the CEC was of the view that the deletion of the areas
which were under cultivation of the habitation prior to
25.10.1980 i.e. when the Forest (Conservation) Act, 1980
was enacted, would not be against the spirit of the Forest
(Conservation) Act, 1980. He submitted that the CEC,
however, was also of the view that for deleting such areas
from the list of forest areas, the procedure as laid down in
the Forest (Conservation) Rules, 1981 and the guidelines
issued by the Central Government for implementation of the
Forest (Conservation) Act, 1980, must be followed.
Conclusions of this Court:
12. After hearing learned counsel for the parties, we find
that the reason why the entire 3700 acres of land in
Karoran, District Ropar, was included in the list of ‘forest
land’ submitted by the State Government to this Court in
February, 1997 is that in the records of the Forest
Department, Government of Punjab, the said land was
shown to be under the Forest Department, Government of
Punjab. We have, therefore, examined the Annual Report of
16
the East Punjab (Forest Department) included in the
compilation filed on behalf of the State Government on
22.02.2014 and we find that the land in the village Karoran,
District Ropar, is recorded as land under the control of the
Forest Department because the land was closed under the
PLP Act, 1900. This is also clear from paragraph 5 of the
affidavit of Shri J.S. Kesar, IAS, Financial Commissioner and
Secretary to Government of Punjab, Department of Forests
and Wildlife Preservation, filed in this Court in October,
1999 extracted hereinbelow:
“5. The basis for inclusion of all the areas closed under the PLPA, 1900 as “Forest areas” in the earlier affidavits was that the same were being reported in the Annual Administrative Reports of the Forest Department since several decades under the category “closed under PLPA 1900”. Though the areas closed under PLPA 1900 were not specifically recorded as forest areas because of the fact that they were included in Annual Administrative Reports of the State Forest Department. As such, besides the areas with tree cover even cultivated fields and habitations in the areas notified under the PLPA, 1900 were depicted as ‘Forest areas’ by the Expert Committee and included in Annexure-G of the affidavit dated 21.2.1997 filed by the State Government in the Hon’ble Apex Court. It is thus reiterated that the Expert Committee included the
17
cultivated/habitation areas closed under the PLPA, 1900 in the list of forest areas only because these stood included in the Annual Administrative Reports of the Department as “Areas closed under the PLPA 1900.”
Thus, the basis of including the entire land in village
Karoran as forest area in the affidavit of the State
Government in this Court is that the land was closed under
the PLP Act, 1900 and therefore was forest area.
13. The High Court has also taken a view in the
impugned order that as the entire land of village Karoran,
District Ropar, was closed in the PLP Act, 1900, it was
‘forest land’ for the purpose of Section 2 of the Forest
(Conservation) Act, 1980. Paragraph 53 of the impugned
order of the High Court is quoted hereinbelow:
53. For the reasons afore-mentioned and relying upon the expression “forest” and “forest lands” as defined by their Lordships in T.N. Godavarman’s case (supra) and the principles laid down in M.C. Mehta’s case (supra), we hold that the entire land of village Karoran which has been notified under section 3 of the PLPA, 1900 and is regulated by the prohibitory directions notified under section 4 and 5 thereof, is a “forest land” and attract the provisions of section 2 of the Conservation Act, 1980, if sought to
18
be used for ‘non forest purposes”.
14. Hence, the first question that we have to decide is
whether the conclusion of the High Court that the land
which is notified under Section 3 of the PLP Act, 1900 and is
regulated by the prohibitory directions notified under
Sections 4 and 5 of the aforesaid Act is ‘forest land’ is
correct in law. Sections 3, 4 and 5 of the PLP Act, 1900 as it
was originally enacted are extracted hereinbelow:
“3. Whenever it appears to the Local Government that it is desirable to provide for the better preservation and protection of any local area, situated within or adjacent to the Sivalik mountain range or affected or liable to be affected by the deboisement of forest in that range or by the action of chos, such Government may, by notification, make a direction accordingly.
4. In respect of areas notified under section 3 generally, or the whole or any part of any such area, the Local Government may, by general or special order, temporarily or permanently, regulate, restrict or prohibit-
(a) the clearing or breaking up or cultivating of land not ordinarily under cultivation prior to the publication of the notification under section 3; (b) the quarrying of stone, or the burning of lime, at places where such stone or line had not ordinarily been so-quarried or burnt prior to the publication of the
19
notification under section 3; (c) the cutting or trees or timber, or the collection or removal or subjection to any manufacturing process, otherwise than as described in clause (b) of this sub-section of any forest-produce other than grass, save for bona fide domestic or agricultural purposes; (d) the setting on fire of trees, timber or forest produce; (e) the admission, herding, pasturing or retention of sheep or goats; (f) the examination of forest-produce passing out of any such area; and (g) the granting of permits to the inhabitants of towns and villages situated within the limits or in the vicinity of any such area, to take any tree, timber or forest produce for their own use therefrom, or to pasture sheep or goats or to cultivate or erect buildings therein and the production and return of such permits by such persons,
5. In respect of any specified village or villages, or part or parts thereof, comprised within the limits of any area notified under section 3, the Local Government may, by special order, temporarily regulate, restrict or prohibit-
(a) the cultivating of any land ordinarily under cultivation prior to the publication of the notification under section 3: (b) the quarrying of any stone or the burning of any lime at places where such stone or lime had ordinarily been so
20
quarried or burnt prior to the publication of the notification under section 3;
(c) the cutting of trees or timber or the collection or removal or subjection to any manufacturing process, otherwise than as described in clause (b) of this sub-section of any forest-produce for bona fide domestic or agricultural purposes; and
(d) the admission, herding, pasturing or retention of cattle generally, other than sheep and goats, or of any class or description of such cattle.”
15. It will be clear from the language of Section 3 of the
PLP Act, 1900 extracted above that for the better
preservation and protection of any local area, situated
within or adjacent to Shivalik Mountain Range which is
liable to be affected deboisment of forests in that range or by
the action of “cho”, such Government may by notification
make a direction accordingly. The expression “local area”
has not been defined in the PLP Act, 1900 and may include
not only ‘forest land’ but also other land. In Section 4 of the
PLP Act, 1900 extracted above, the local Government was
empowered by general or special order, temporarily or
permanently to regulate, restrict or prohibit various
activities mentioned in clauses (a), (b), (c), (d) , (e) , (f) and (g)
21
thereof. A reading of these clauses would show that
activities such as cultivation, pasturing of sheep and goats
and erection of buildings by the inhabitants of towns and
villages situated within the limits of the area notified under
Section 3 can be regulated, restricted or prohibited by a
general or special order of the local Government. All these
activities are not normally carried on in forests. Similarly,
under Section 5 of the PLP Act, 1900, the local Government
was empowered by special order, temporarily or
permanently to regulate, restrict or prohibit the cultivating
of any land or to admit, herd, pasture or retain cattle
generally other than sheep and goats. These activities are
also not normally carried on in forests. In our view,
therefore, land which is notified under Section 3 of the PLP
Act, 1900 and regulated by orders of the local Government
under Section 4 and 5 of the PLP Act, 1900 may or may not
be ‘forest land’. Therefore, the conclusion of the High Court
in the impugned order that the entire land of village
Karoran, District Ropar, which has been notified under
Section 3 of the PLP Act, 1900 and is regulated by the
prohibitory directions notified under Sections 4 and 5
22
thereof is ‘forest land’ is not at all correct in law. The basis
for inclusion of the entire area in village Karoran, District
Ropar, in the list of forest areas in the State of Punjab
pursuant to the order dated 12.12.1996 of this Court in the
case of T.N.Godavarman Thirumulkpad v. Union of India &
Ors. (supra) is legally not correct. Similarly, the conclusion
of the High Court in the impugned order that the entire land
in village Karoran, District Ropar, having been notified
under Section 3 of the PLP Act, 1900 and being under the
regulatory regime of Sections 4 and 5 of the said Act is
‘forest land’ is also legally not correct.
16. In fact, the High Court failed to appreciate the
meaning of ‘forest’ and ‘forest land’ in Section 2 of the Forest
(Conservation) Act, 1980 as given by this court in the order
dated 12.12.1996 in the case of T.N.Godavarman
Thirumulkpad v. Union of India & Ors. (supra). The relevant
portions of the order dated 1212.1996 of this Court in the
case of T.N.Godavarman Thirumulkpad v. Union of India &
Ors. (supra) on the meaning of the words ‘forest’ and ‘forest
land’ is extracted hereinbelow:
“4. The Forest Conservation Act, 1980
23
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 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.”
The underlined portion of the order dated 12.12.1996 in the
case of T.N.Godavarman Thirumulkpad v. Union of India &
Ors. (supra) would show that the Forest (Conservation) Act,
1980 was enacted with a view to check “further
deforestation” and was to apply to all forest irrespective of
the nature of ownership or classification thereof. Hence,
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Section 2 of the Forest (Conservation) Act, 1980 puts a
restriction on further deforestation of ‘forest land’ and would
apply to any land which at the time of enactment of the
Forest (Conservation) Act, 1980 was ‘forest land’ irrespective
of its classification or ownership. This is exactly the view
taken also by the CEC in its recommendations dated
10.09.2003 in I.A. 727 in T.N.Godavarman’s case (W.P. [C]
No.202 of 1995). Paragraph 8 of the recommendations
dated 10.09.2003 of the CEC in I.A. No.727 is extracted
hereinbelow:
“8. After examining the submissions made by the applicant, affidavit filed by the State Government of Punjab and the ‘No Objection’ give by MoEF, the CEC is of the view that deletion of areas, which were under cultivation/habitation prior to 25.10.1980, i.e. enactment of the FC Act, would not be against the spirit of the FC Act, and this Hon’ble Court’s order dated 12.12.1996, if such areas were included in the ‘list of forest area” on technical reasons alone. However, the areas closed under Section 4 of the PLPA are recorded as ‘forest’ in the Forest Department’s records for the last 40-50 years. This Hon’ble Court by order dated 12.12.1996 has held that areas recorded as ‘forest’ in Government records are forest for the purpose of the Section 2 of the FC Act. It would therefore be necessary to obtain prior approval of the Central Government under Section 2 of the FC Act, for deleting
25
such areas from the “list of the forest area” after following the procedure as laid down in the Forest (Conservation) Rules, 1981, and the guidelines issued by the Central Government for implementation of the said Act. Irrespective of the merits of the case, it would not be appropriate to allow deletion of such area from the ‘list of forest area” without following the prescribed procedure and provisions of the Forest (Conservation) Act.”
Thus, what the High Court was called upon to decide is
whether the land on which the Forest Hill Golf and Country
Club of Col. B.S. Sandhu was situated was forest land as on
25.10.1980 irrespective of its classification or ownership.
This is a factual question and the High Court should have
decided this factual question on the basis of Government
records as on 25.10.1980 and other materials filed before
the High Court, but the High Court has instead decided this
question by reference to the provisions of the PLP Act, 1900
and the records of the Forest Department in which the land
was shown to be under the Forest Department because of
the fact that the land was closed under the PLP Act, 1900
several decades before the enactment of the Forest
(Conservation) Act, 1980. Moreover, by recording a blanket
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finding that all land in village Karoran, District Ropar, was
‘forest land’ for the purpose of Section 2 of the Forest
(Conservation) Act, 1980, the High Court has affected the
legal rights of several villagers, agriculturists, farmers, shop
owners, inhabitants of village Karoran, District Ropar, who
were carrying on their respective occupations on their land
even before the enactment of the said Act on 25.10.1980. In
our view, the High Court should have been very careful
before recording findings which affect the property rights of
persons protected by Article 300A of the Constitution.
16. We have also examined the two decisions of this
Court in the first and second cases of M.C. Mehta cited on
behalf of the State of Punjab and we find that the aforesaid
decisions have been rendered in the case of Aravali Hills in
the State of Haryana and it was held therein that as the
State Forest Department had been treating and showing the
areas as ‘forest’, in fact and in law, the area was forest and
non-forest activities could not be allowed in such areas
without the prior permission of the Central Government
under Section 2 of the Forest (Conservation) Act, 1980. In
these two decisions, this Court has not enquired into the
27
basis of inclusion of the areas in forest by the State Forest
Department nor has this Court considered as to whether a
land becomes ‘forest land’ by mere inclusion of the same
under the notification under Section 3 of the PLP Act, 1900.
In the present case, on the other hand, the State
Government has in its affidavit stated before this Court that
the basis of inclusion of the entire land of village Karoran,
District Ropar, in forest areas in the records of the Forest
Department of Government of Punjab was that the land was
closed under the PLP Act, 1900 and we have found this
basis as not correct in law.
15. We, therefore, set aside the finding of the High Court
that the entire land in village Karoran, District Ropar, is
‘forest land’ for the purpose of Section 2 of the Forest
(Conservation) Act, 1980 and remand the matter to the High
Court for fresh hearing and fresh order in accordance with
law. Consequently, all directions in the impugned order
which flow out of the aforesaid finding of the High Court
that the land was ‘forest land’ for the purpose of Section 2 of
the Forest (Conservation) Act, 1980 are set aside. We,
however, make it clear that we have not set aside the
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directions for investigation by the CBI in the impugned
order.
.....……………..……………………….J. (A. K. Patnaik)
…....…………..………………………..J.
(Fakkir Mohamed Ibrahim Kalifulla) New Delhi, May 21, 2014.