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TABLE OF CONTENTS
INDEX OF AUTHORITIES..............................................................................................................4

Table of Cases...............................................................................................................4
Table of Statutes & Policies..........................................................................................5
Editorials.......................................................................................................................6
Articles..........................................................................................................................6
Journals..........................................................................................................................6

ABBREVIATIONS..........................................................................................................................7
ACKNOWLEDGEMENT..................................................................................................................9
CHAPTER I............................................................................................................................10
INTRODUCTION................................................................................................................10
CHAPTER II...........................................................................................................................11
HISTORICAL PERSPECTIVE................................................................................................11
CHAPTER III..........................................................................................................................13
BRITISH PERIOD...............................................................................................................13
The Forest Policy in 1865...............................................................................................13
CHAPTER IV..........................................................................................................................15
FOREST ACT, 1927...........................................................................................................15
CHAPTER V...........................................................................................................................22

FOREST (CONVERSATION) ACT, 1980..............................................................................22

NON-FOREST PURPOSE.....................................................................................................23
CONSTITUTION OF ADVISORY COMMITTEE......................................................................24
JUDICIARY AND THE INTERPRETATION OF THE ACT........................................................24
Flagman T.N. Godavarman Thirumalpad a milestone case echoed................................27
Permission of the CG mandatory....................................................................................28
NO RETROSPECTIVE EFFECT............................................................................................29

CHAPTER VI..........................................................................................................................31
SCHEDULE TRIBE AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF
FOREST RIGHTS) ACT, 2006.............................................................................................31
CHAPTER VII........................................................................................................................36
NATIONAL FOREST POLICY, 1988....................................................................................36
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CHAPTER VIII.......................................................................................................................39
CONCLUSION....................................................................................................................39
BIBLIOGRAPHY..........................................................................................................................41

INDEX OF AUTHORITIES

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TABLE OF CASES

Ajendra Singh v. State of U.P., AIR 2006 All 227............................................................27

Ambica Quarry Works v. State of Gujarat, AIR 1987 SC 1073........................................28
Banwasi Seva Ashram v. State of U.P., AIR 1987 SC 374................................................32
Chowgule & Co. Ltd. v. Goa Foundation, (2008) 12 SCC 646.........................................27
Goa foundation v. Konkan Railway Corpn., (1994) 1 Mah L.J. 21...................................29
Goa Foundation v. State of Goa, AIR 2001 Bom 318.......................................................25
Ishwar Chandra Gupta v. State of U.P., AIR 2011 All 88................................................18
K. Balakrishnan Nambair v. State of Karnataka, AIR 2011 SC 1628..............................28
Kamaljeet Singh Ahluwalia v. State of Bihar, AIR 2006 Jhar 44......................................28
Kumari Verma v. State of Kerala, AIR 2006 SC 3048......................................................16
Lafarge Umiam Mining (P) Ltd. v. UOI, AIR 2011 SC 2781......................................35, 38
M.C. Mehta v. UOI, (2014) 12 SCC 118...........................................................................27
Mohd. Hazi Rafeeq v. State of Uttaranchal, AIR 2006 Utt 18..........................................27
Muklesh Ali v. State of Assam, (2006) 5 SCC 485.............................................................27
Naresh Kumar Jain v. Commr., AIR 2006 Jhar 96............................................................28
Nature Lovers Movement v. State of Kerala, (2009) 5 SCC 373.......................................23
Om Prakash Choudhary v. State of Rajasthan, AIR 2005 Raj 18.....................................24
P. Rami Reddy v. State of A.P., AIR 1988 SC 1626..........................................................32
Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P., AIR 1988 SC

2187....................................................................................................................................26
Samatha v. State of A.P., AIR 1997 SC 3297....................................................................32
Sarup Singh & Co. v. State of Bihar, AIR 2001 Pat 36.....................................................17
State of M.P. v. Kartar Singh Bagga, AIR 2006 MP 868..................................................28
State of Tripura v. Sudhir Ranjan Nath, AIR 1997 SC 1168.............................................17
T.N. Godavarman Thirumalpad v. UOI, (2001) 10 SCC 645..........................................25
T.N. Godavarman Thirumalpad v. Union of India, AIR 1997 SC 1228............................23
T.N. Godavarman Thirumalpad v. UOI, AIR 2002 SC 724..............................................27
T.N. Godavarman Thirumalpad v. UOI, AIR 2006 SC 1774............................................15
T.N. Godavarman v. UOI, WP (C) No. 202 of 1995.........................................................29
Tarun Bhagat Singh v. UOI, 1993 Supp (3) SCC 115.......................................................29
Vilas Shankar Donode v. State of Maharashtra, AIR 2008 Bom 10.................................24
Yashwant Stone Works v. State of U.P., AIR 1988 All 121...............................................15

STATUTES & POLICIES REFERRED

42nd Constitutional (Amendment) Act, 1976 (Act 91 of 1976)........................................19

Cattle Trespass Act, 1871 (Act 1 of 1871).........................................................................16
Constitution of India, 1950.....................................................................................20, 17, 19
Environment (Protection) Act, 1986 (Act 29 of 1986)..........................................20, 27, 38
Forest (Conversation) Act, 1980 (Act 69 of 1980)...................17, 22, 23, 25, 26, 28, 29, 30
Forest Act, 1875.................................................................................................................15
Forest Act, 1927 (Act XVI of 1927).....................................................15, 16, 17, 18, 19, 22
Land Acquisition Act, 1894 (Act I of 1894)......................................................................16
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National Forest Policy, 1988..................................................................................32, 36, 38

Private Protected Forests Act, 1947(Act IX of 1948)........................................................17
Schedule Tribe and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006 (Act 2 of 2007)...................................................................................18, 31, 32, 33, 35
The Forest Policy, 1865......................................................................................................13

EDITORIALS

Editorial, State must follow Act for forest rights of tribals: HC, The Indian Express, May
04, 2013 (04:43 IST)..........................................................................................................34
Editorial, Valuing Biodiversity, The Hindu, Sep. 27, 2011 (23:50 IST)...........................31
Editorial, Protecting Forest Land, The Hindu, Sep. 13, 2013 (01:18IST).........................34
ARTICLES
Arvind Khare, Lets not miss the wood, The Hindu, June 27, 2015 (06:46 IST)..............31
C.R Bijoy, Blood In The Woods, The Hindu, Apr 16, 2015(03:43IST)............................22
L. Prasad, Silent Valley Case: An Ecological Assessment, 8 Cochin University Law
Review 128 (1984)...............................................................................................................25
Meena Menon, Clearance Without Compliance, The Hindu, Sept 9 2014(01:18IST).......22
Meena Menon, Forest cover has increased despite some setbacks, The Hindu, July 9, 2014
(05:35IST)...........................................................................................................................36
N.K. Singh, P.M. asks M.P Government to punish officers for deforestation, The Indian
Express, Mar. 11, 1986........................................................................................................26
Praveen Bhargav, Greening India But Losing Forests, The Hindu, Nov. 2, 2007...........21
S. Harpal Singh, Forest Rights Act a bane or boon?, The Hindu, Apr 27, 2013................32
Susan K. Joseph, Conservation of Forests: Need of the Hour, The Hindu, Feb 26,
2005.....................................................................................................................................36
JOURNALS
Nandini Sunder, Legal Grounds: Natural Resources, Identity And The Law, 3 NUJS L.
Rev. 123 (Jan-Mar, 2010)...................................................................................................17
L. Prasad, Silent Valley Case: An Ecological Assessment, 8 Cochin University Law
Review 128 (1984)...............................................................................................................25
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ABBREVIATIONS
AIR All India Reporter,
All Allahabad,
Art. Article,
CAF Compensatory Afforestation Fund,
CG Central Government,
Ed. Edition,
FCA Forest (Conservation ) Act, 1980,
FRA - Schedule Tribe and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006,
FSI Forest Survey of India,
HC High Court,
Id. Ibid,
IST Indian Standard Time,
L.J. Law Journal,
MoEF Ministry of Environment & Forest,
n. Footnote Number,
NPV Net Present Value,
p. Page Number,
Pat Patna,
SC Supreme Court,
SCC Supreme Court Cases,
Sec. Section,
SG State Government,

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UOI Union of India,

v. Versus,
WP Writ Petition.

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ACKNOWLEDGEMENT
I would like to express profound gratitude to my Seminar - 1 Professor, Dr. Asad Malik Sir for
his invaluable support, encouragement, supervision, and useful suggestions throughout this
project work. His moral support and continuous guidance enabled me to complete my work
successfully.

I am thankful and indebted to all those who helped me directly or indirectly in completion of
this project report.

HIMANSHU

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CHAPTER - I
INTRODUCTION
The term Forest is derived from a Latin word foris which means outside probably
indicating outside the dwelling house. Forest are the major natural resource and are also
recognized as a colorful expression of nature. They are also recognized as guardians and
protectors of the wildlife of the country. Forests are valued not only for various kinds of flora
and fauna but also for minerals, water sheds, cradles of rivers, check on desertification, as an
important recreational resource and for their scenic beauty. Therefore, management of forest is
an essential aspect of the protection of the environment. It also becomes more important as the
trees are known as pools or banks of carbon dioxide. Cutting of trees release carbon dioxide
into the atmosphere which has largely contributed to the green house effect or global
warming. This global warming, in turn, has resulted in the melting of ice-caps and rise in the
sea level; a change in the climate patterns has also been experienced all over the world. The
United Nations Environment Programme (UNEP) has recently declared that because of the
effect of greenhouse gases, the year 2003 has been found to be the hottest in the last 50 years.
During the last century, forests have been cut at rates unequalled in the world and they are
disappearing at the alarming rate. In India, it has been claimed that we have got vegetation
cover over 19 percent of the total land area as against the accepted idol of 33 percent in India
and over 40 percent internationally.1 Thus, vegetation cover is much less than required.

1 Satish C. Shastri, Environmental Law, p. 317, ED. 4th (2012), Eastern Book Company.
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Chapter - II
HISTORICAL PERSPECTIVE
It has been rightly observed that the culture and civilization of our country have developed on
the river banks and amidst the dense forests. The rigveda and the other shrutis make it
abundantly clear that often people saw the images of god in nature (trees, plants, animals, etc.)
and treated them as divine objects with great devotion and love. Some trees were declared as
sacred (e.g. peepal, banana, tulsi, amla, etc.) and this, in turn, automatically worked to protect
the forest from the onslaught of mankind. Trees have been eulogised to the extent that one of
the Upnishads has been named as Brihadaranyaka Upanishad. In the Agni Puran, it has been
observed that a person who does the sacred work of plantation provides salvation even to
those ancestors who died 3000 years ago. That person enjoys the pleasure of heaven for as
many years as the trees benefit living beings with their pleasant shadow and fruits full of
nectar. Even during the Vedic period (3000-4000 BC), tree worship was a practice popular in
the society. Rigveda mentions various attributes of god in trees. Plants were regarded as
possessing divine qualities with reference to their healing powers. Moreover, plants were
defied as god Varuna, one of the most popular deities of Vedic times.
In the Matsya Purana, there is a verse:
Dashkoop Samavaethi Dashvapi Samshadah
Dashhed Samah putra dash putra Samo drama
(one pond is equal to 10 wells, one son is equal to 10 ponds and one tree is equal to 10 sons).
Manusmriti2 also declares the cutting of green trees an offence. Kautilya 3 has provided in
his Arthashastra that it is the duty of the king to guard, upkeep and plant forests for the
kingdom. He also prescribes that it is the duty of the king to plant forests which grant safety to
animate and inanimate objects.
Emperor Ashoka is also known for his work to protect forests and for planting trees along
public roads. The edicts issued by him include forests must not be burned, and trees shall
be planted on both the sides of the roads. Since the time immemorial, forest has been playing
2 Manusmriti, XI; 65; VIII; 330.
3 Kautilya, Arthashastra, Book II Ch. II, Books VII Ch. XI, XIII.
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a central role in the life and culture of the Indian tribes. Speaking empirically, forests and
tribal have been observed to be inseparable from each other.4
The above discussion amply demonstrates that Indian had a culture of protecting and guarding
the forests and it was a social responsibility of the individuals as well as the rulers to maintain
and protect them. And, India had a culture of worshipping nature in all its glory.5

4 Das Jagannath And R.N. Pati, Tribal and Indigenous people of India problems & perspective,
(2002), APH Publishing Corporation, New Delhi.
5 Supra, n. 1.
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CHAPTER III
BRITISH PERIOD
Till the beginning of British rule in India, the forests were well protected and guarded by the
people and particularly the tribal people (forests dwellers). But during the British period, the
rulers were having an indifferent attitude towards forests and during the 19 th century, there
was a fierce onslaught on India Forests. The forests were treated as a source of revenue for
the government and not as a natural resource. During this time most of the Forests were
destroyed in the name of agriculture and the need for more land for cultivation. Later on,
forests were extensively cut to meet the needs of timber for ship building, iron smelting and
tanning. Oak forests were cut and shipped to England for the use of English Royal Navy as
the safety of the empire depended on its wooden walls. The Indian teak of Malabar was
found most suitable for ship building and teak forests started vanishing slowly and
systematically. Thus, British rule in India (1600-1947) was virtually a period in which forests
were vastly damaged and destroyed and the vegetation cover started shrinking. During both
the World Wars, Indian forests served the imperial army to a great extent and Indian timber
was cut and supplied by the British to England, Egypt, Iraq, Middle Eastern countries and the
Persian Gulf. Moreover, the Timber Directorate was set up in India to supply timber.
To serve the imperial cause, the first Forest Act was enacted in 1865 (but not to guard forests)
and the forest department was established. The main purpose of this Act was to facilitate the
acquisition of Indian forest areas to supply timber for railways and to establish the claim of
the State on the forest land. But the Act did not have provision to protect the existing rights of
the people living in the forests. Basically, this Act was meant to regulate forest exploitation,
and the management and preservation of forest resources.
The Forest Policy in 1865:- the first step of at asserting the State monopoly right over the
forests. This facilitates the acquisition of forests by State. This policy revised in 1878 which
ensured that the State could demarcate tracts of forests, needed especially for railway purposes
& retain enough flexibility over the remaining extent of forest land to revise its policy from
time to time.6

6 Divan Shyam & Rosencranz Armin, Environmental Law & Policy in India, Cases, Materials &
Statutes, Ed. 4th (2005), Oxford University Press.
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Soon, it was found that the provisions of the Act were not effective as it lacked deterrent
punishment and gave only meagre powers to the forests officers. Therefore, after a great
debate, a new Forest Act was passed in 1878 which claimed absolute control and ownership
rights of the State on forests. It also recognised the rights of the nomads of the forests and of
other nearby dwellers (customary rights) in various areas. Such rights included the rights of
villagers in Himalayan region, tribals in Chhattisgarh, Santhals in Midnapore, Bhil in
Rajasthan and Madhya Pradesh and others to grazing, collecting fuel and fodder, collecting
fruits and medicinal plants and herbs, etc. in the forest without having any proprietary rights.

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CHAPTER - IV
FOREST ACT, 1927 7
To make forest laws more effective and to improve the Forest Act, 1875, a new
comprehensive Forest Act was passed in 1927 which repealed all the previous laws. The Act
consists of 86 sections divided into 13 chapters. The main objectives of the Act are:

To consolidate the laws relating to forests;

Regulation and transit of forest produce;
To levy duty on timber and other forest produce.

The term forest has not been defined in the Act. But in Yashwant Stone Works v. State of
U.P.8 the Allahabad HC, while defining the term, adopted the definition provided by the Food
and Agriculture Organisation (FAO) according to which Forest means all land bearing
vegetative association demarcated by trees of any size, exploited or not, capablr of producing
wood or other forest products or exerting an influence on the climate or on the water regime
or providing shelter for livestock and wildlife.
In T.N. Godavarman Thirumalpad v. UOI,

the SC has made it clear that the term forest

must be understood according to its dictionary meaning and by adopting a practical approach;
an area measuring 10 hectare or more having an average number of 200 trees per hectare
ought to be treated as forest. It covers all statutorily recognised forest whether reserved or
protected and it also includes all area recorded as forests in the government record irrespective
of the ownership whether government owned or privately owned. To decide whether a land
is a forest or not, modern technologies like ERDAS Imagine and Linear Imaging Self
Scanning Sensor (LISS III) can be used. This Act was enacted at a time when environmental
problems has not assumed threatening dimensions as they have today. Environmental hazards
were minimal and quite negligible.
Various chapters of the Act provide for;
7 Act XVI of 1927.
8 AIR 1988 All 121.
9 AIR 2006 SC 1774.
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Reserved forest [Ss. 3-27];

Village forests [S. 28];
Protected forests [Ss. 29-34];
Control of forests not under the State;
Duty of timber and other forest produce in transit [Ss. 39-40];
Control on timber and other forest produce in transit [Ss. 41-44].
Chapter IX of the Act provides for penalties and procedure. Sec 70 of the Act also makes the
Cattle Trespass Act, 1871 applicable to reserve forests of any part of the protected forests as
a sequel to this, fines for cattle trespass have also been provided. 10 The Act also empowers the
state for requisition of any private forest for any purpose under the Act, which shall be
deemed to be needed for a public purpose within the meaning of Sec. 4 of the Land
Acquisition Act, 1894.11 Many States have passed various Acts to take over the private forests
from the private owners.12
Section 2 of the Forest Act, 1927 has defined certain terms. For example, the word cattle
includes elephants, camels, buffaloes, horses, mares, geldings, ponies, colts, fillies, mules,
asses, pigs, rams, ewes, lambs, goats and kids. The word forest produce includes timber,
charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark lac, mahua flowers and
seeds, kuttha and myrobalams.... and trees and leaves flowers, fruits and other parts of trees,
plants (grass, creepers, reeds and moss), wild animals and all or any part of such animals,
peat, surface soil, rock and minerals including limestone, laterite, mineral oil and other
products of mines and quarries. It has also been made clear that trees includes palms,
bamboos, skumps, brushwood and canes.13
The following activities are prohibited in reserved forests:
Clearing of forests;
Setting fire or leaving any fire burning, or keeping or carrying any fire;
Trespassing or pasturing cattle;
Causing damage by negligence in felling any tree or cutting or dragging any timber;
Felling, girdling, loping or burning any tree, stripping off the bark or leaves from any tree;
Quarrying stone, burning lime or charcoal or removing any forest produce;
Cleaning or breaking up of any land;
Hunting, shooting, fishing, poisoning water or setting traps or snares; and
10 Sec. 71, Supra, n. 7.
11 Act I of 1894.
12 Kumari Verma v. State of Kerala, AIR 2006 SC 3048.
13 Sec. 2(7).
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Killing or catching elephants. [Sec. 26].

The power of the State Governments (hereinafter, SG) to regulate the transit of timber and
other forest produce provided u/s 42 was challenged in State of Tripura v. Sudhir Ranjan
Nath14 as violative of freedom of trade and commerce. The SC declared that the Forest Act is
primarily enacted to preserve, protect and promote the forest wealth of the country and
collection of revenue is a regulatory measure to achieve this objective. Similarly, to regulate
cutting, removal, transport and possession of forest produce is in the interest of state and its
people. Moreover, the Private Protected Forests Act, 194715 allowed the state to unilaterally
take over management of zamindari forests although it recognized the proprietary rights of the
zamindars and all existing user rights. The Supreme Court Interim Order in the Godavarman
judgment, 1996 paved the way for state encroachment where collective tenurial systems are
destroyed and customary rights of inhabitants are brought under the restrictive control of the
forest department. Ironically, the legal machinery has been successful in labelling the forest
dwellers as encroachers in their own land.16
Therefore, control of the State over forests and over collection of forest produce, and
movement of drift and standing timber is a right in consonance with the provisions of the
Constitution. Recently, the Bihar HC declared in Sarup Singh & Co. v. State of Bihar,17 that
there cannot be any movement or transport of timber or other forest produce without any
transit permit. Once the timber is brought to the State from another State, transit permit rules
would apply.
A deep investigation of the reveals that the Act never aimed to protect the vegetation cover of
India but was passed to 1) regulate the cutting of trees; and 2) earn revenue from cutting of the
trees and from forest produce.18 It mainly aimed at supplying raw material for forest based
industries. Forests were accepted as a significant factor in eco-balance and environmental
preservation. it is necessary to point out here that this revenue oriented attitude towards the
14 AIR 1997 SC 1168.
15 Act IX of 1948.
16 Nandini Sunder, Legal Grounds: Natural Resources, Identity And The Law, 3 NUJS L. Rev. 123
(Jan-Mar, 2010).
17 AIR 2001 Pat 36.
18 Chhatrapati Singh, Common Property and Common Poverty, (OUP Delhi 1986).
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forest has continued even after independence. Therefore, this Act of 1927 failed miserably to
protect the forest from unscientific and unplanned exploitation and it was one of the reason
that the Forest (Conversation) Act, 1980 was passed.
The Act of 1927 also denied common ownership or occupancy rights or property rights to the
occupants of land/tribals. These forest dwellers living there for generations were not given any
right over the forest land and forest produce. Rather forest were declared to be the property of
the government and in case of dispute, the "Forest Settlement Officer" would have full rights
top determine the extent of their right to graing, water resources, cultivation or shifting
cultivation, and forest produce in the forest. The Forest Settlement Officer had to notify, hear
and decide the claims.
The Banwasi Seva Ashram v. State of U.P.19 raised an important question relating to the sight
of the State to notify an area as a "reserved forest" and its effects on the people (Adivasis)
already living there. In this case, the SG declared the area of Dudhi in Robertsganj tehsil to be
a reserved forest under Sec. 20 of the Forest Act. Some Adivasis and other backward people
had been living inside this area for a long time. A letter written by Banwasi Seva Ashram
about the rights of these people, was treated as writ petition by the court. it was contended that
these people had been collecting forest produce, and using teh forest for the purpose of
grazing and fuel wood, etc. for generations and now they have been deprived of these rights
which constituted

their right to livelihood. Moreover, criminal caes of trespassing and

encroachment were registered against them. The state pleaded that the forest land had been
acquired to set-up a thermal power styation and provide cheaper electricity to the people. The
court declared that the land which had been acquired, already had been acquired would not be
part of the writ petition and gave elaborate instructions as to haw the interests of the ousted
Adivasis and land owners should be safeguarded. The court also directed that wide publicity
to be given to this process and that an Additional District Judge be appointed to exercise the
powers of appellate authority in such matters. The court did not protect the rights of Adivasis
and freed the land from the ban of dispossession of the Adivasis. The developmental activity,
i.e. the setting up of thermal power station, was given priority in comparison to the rights of
the tribals.

19 (1987) 3 SCC 304; (1992) 1 SCC 117; (1992) 2 SCC 202.

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In Ishwar Chandra Gupta v. State of U.P.20, the Allahabad HC made it clear that the Schedule
Tribes and other Traditional Forest Dwellers (Recognition of Forest Righs) Act, 2006 is in
addition to the Forest Act, 1927 and the two run not derogatory to each other. These two Acts
run in different field and there is no inconsistency between provisions of these Acts. In this
case, petitioners were running a shop in forest area since 1928 and they could not prove
themselves as forest dwellers, or Schedule Tribe or traditional forest dweller. Therefore, they
were denied the right to continue their possession over the forest land with their non-forest
activity.
The penalty provisions of the Act prescribe a maximum punishment of six months
imprisonment or a fine extending to 500, or both. The provision of such meagre punishment
for those causing serious damage to the wealth of the nation, is further evidence of the
effectiveness of the Act. Only Sec. 63 of the Act provides for a punishment of imprisonment
which could extend to two years or fine, or both for counterfeiting or defacing marks on trees
and timber and altering boundary marks of any forest or wasteland.
The amendment of the Act in 1982 has given greater powers to the domiciled people of the
forest. Previous to 1976, the State had the power to legislate on forests, but the Constitutional
Amendment21 has given the power to legislate on forests to the Union Government. Similarly,
this amendment has laid down that it is the duty of the State to improve and protect the
environment including forests, lakes and wildlife of the country.22
In T.N. Godavarman (98)23, the petitioner challenged the allotment of land of 15 hectares by
way of lease to M/s/ Maruti Coal and Power Ltd. for setting up coal washery. It wasclaimed
that the land leased out was a forest land, which could not be used for non-forest purpose, i.e.
for coal washery. The court reiterated that the definition given to the term "forest" must be
understood according to its dictionary meaning. Thus, it covers all statutorily recognised
forests, whether designated as reserved, protected or otherwise, for the purpose of Sec. 2(I) of
the Forest Act, 1927. Taking a practical approach, "an area measuring 10 hectares or more
having an average number of 200 trees per hectare ought to be treated as forest." Moreover, it
20 AIR 2011 All 88.
21 42nd Constitutional (Amendment) Act, 1976 (Act 91 of 1976).
22Art. 48, Constitution of India, 1950.
23 (2006) 5 SCC 28.
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includes any area recorded as forest in the government record irrespective of the ownership.
The matter related to the disputed land was referred to the CEC who gave three reports on
three different occasions, and declared that the land in question was a non-forest land.
Therefore, it was declared that the petitioner did not come to the court with clean hands but
with ulterior motives, the court dismissed the petition with costs and also warned the
petitioner not to use "recuperate language" in the pleadings. With reference to conservation,
preservation and protection of forests and ecology and use of forest for non-forest purpose,
following principles were laid down by the SC:

The principle aim of the forest policy is to ensure environmental stability and maintenance
to ecological balance including atmospheric equilibrium which are vital for sustenance of
all life forms, humans, animal and plant. The derivation of direct economic benefits must
be subordinated to this principle aim.
The forest policy has a statutory flavour. The non-fulfilment of the aforesaid principle

would be violative of Arts. 14 & 21 of the Constitution.

Compensatory Afforestation Fund Management and Planning Authority (CAMPA) created
by the MoEF with the occurrence of the CEC was essential. It shall allocate money to the
States for their site specific schemes out of Compensatory Afforestation Fund (hereinafter,
CAF). This fund has been created having regard to the principles of inter-generational

justice.
If it is at all necessary for economic development to use forest for non-forest purpose, then
before permission is granted by the CEC, there should be some scheme (including short
term as well as long term measures) for regeneration of forests. Constitution of CAMPA

under section 3(3)24 is a laudable step in this direction.

Money received towards "compensatory afforestation", additional compensatory
afforestation, penal compensatory afforestation, net present value (hereinafter, NPV) of

forest land, catchment area, treatment plan fund, etc. shall be deposited in CAF.
fund received from the user agencies shall be used extensively for undertaking the

conservation activities.
Artificial regeneration activity must be started at the earliest. Local and indigenous species

must be used in plantations.

Independent system of concurrent monitoring and evaluation should be evolved.
forest management planning involved a blend of ecological, economic and social systems
with the economic and social sides of planning.

24 Environment (Protection) Act, 1986 (Act 29 of 1986).

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Levying of appropriate NPV on the user agency of such diverted forests land as the price of
such forest use is legal. All projects for use of forest for non-forest purpose shall be required
to pay NPA except government projects like hospitals, dispensaries and schools.
The SC is now enforcing compulsory levies on mining, power and other developmental
projects that gobble up natural forests and intrude into wildlife habitats. A sum of Rs. 5,000
crore thus collected is now lying in a corpus fund with the Compensatory Afforestation Fund
Management and Planning Authority (CAMPA). The fund comprises monies collected for
compensatory afforestation as mandated by the Forest Conservation Act and from realisation
of the NPV, a levy based on valuation of the forestland diverted for non-forestry activities.25
This amendment has also made it a fundamental duty of the citizens "to protect and improve
the natural environment including the forests, lakes and wildlife..."26

25 Praveen Bhargav, Greening India But Losing Forests, The Hindu, Nov. 2, 2007.
26 Art. 51A(g), Supra, n. 22.
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CHAPTER - V
FOREST (CONVERSATION) ACT, 198027
As mentioned above, the CG got the powers to make laws on forest in 1976. Following this,
the Union Government passed the Forest (Conservation) Act, 1980 (hereinafter, FCA) which
is a landmark in the history of the protection of forests. Mainly, this Act was passed to remove
the difficulties of the Forest Act, 1927 and to conserve the vegetation cover of the nation.
In 1980, the Forest Conservation Act was enacted, privileging conservation over revenue
maximisation. Afforestation moved to the fore. Non-forestry activities were permitted only
after clearance by the MoEF and the Supreme Court (due to the Godavarman Case continuing
since the mid-1990s) and on the payment of Rs.5.8 lakh and Rs.9.2 lakh per hectare as Net
Present Value.28
The historical Act consists of only five sections but has proved very effective and successful
in the conservation in the forest. The main object of the FCA Act is to provide for the
conservation of forest and for matters connected or ancillary or incidental thereto.
Conservation of forest is necessary as deforestation causes ecological imbalance and leads to
environmental degradation. Deforestation has been taking place on a large scale in the country
and it has caused widespread concern. Thus, the Act has been passed to conserve the forests
and check deforestation effectively.
The Forest (Conservation Act), 1980 expressly prohibits conversion of forest land to nonforest use without the Centres nod but this general approval would ensure that proposals need
not go to the Centre at all. Some senior forest officials said unless the Act was amended, this
kind of general approval could not be granted. Since 1980, the Centre has approved 11,29,294
hectares of forest land for various activities including ecotourism. With the forest cover at
69.79 million hectares or 21.23 per cent of the geographical area as against 33 per cent
mandated by the National Forest Policy, the country cannot afford to lose more.29
Sec. 2 of FCA places restriction on de-reservation of forests or use of land for non-forest
purposes. It provides:
...no State Government or other authority shall make, except with the prior approval of the
Central Government, or any directing27 Act 69 of 1980.
28 C.R Bijoy, Blood In The Woods, The Hindu, Apr 16, 2015(03:43 IST).
29 Meena Menon, Clearance Without Compliance, The Hindu, Sept 9 2014(01:18 IST).
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(i)

that any reserved forest (within the meaning of the expression reserved forest in any
law for the time being in force in that state) or any portion therefore, shall cease to be

(ii)
(iii)

reserved;
that any forest land or any portion thereof may be used for any non-forest purpose;
that any forest land or any portion thereof may be assigned by way of lease or otherwise
to any private person or to any authority, corporation, agency or any other organisation

(iv)

not owned. Managed or controlled by Government;

that any forest land or any portion thereof may be cleared of trees which have grown

naturally in that land or portion for the purpose of using it for reafforestation.
The SC has also defined the term Forest. In T.N. Godavarman Thirumalpad v. Union of
India,30 the Court held that the word forest must be understood according to its dictionary
meaning. This description cover all statutorily recognised forest, whether designated as
reserved, protected or otherwise for the purpose of Sec. 2(i) of FCA. The term forest land,
occurring in Sec. 2, will not only include forest as understood in the dictionary sense, but also
any area recorded as forests in the Government record irrespective of the ownership. This
description of forest has been used in many cases.
The court has made it clear that Sec. 2 is prospective in its operation and any regularisation
order on or after 25 October 1980 cannot be passed without the prior approval of the CG.31
NON-FOREST PURPOSE
The term non-forest purposes has been defined as breaking up or cleaning of any forest land
or portion thereof for (a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing
plants, horticulture crops and medicinal plants; or (b) any purpose other than reafforestaion.
Section 2 further provides that the non forest purpose do not include:
any work relating or ancillary to conservation, development and management of forests and
wildlife, namely, the establishments of check-posts, fire lines, wireless communications and
construction of fencing, bridges, culverts, dams, waterholes, trench marks, boundary marks
and pipelines or other like purposes.
If there is a violation of Sec. 2 by anyone, he will be punished with simple imprisonment for a
period which may extend to 15 days.32
30 AIR 1997 SC 1228.
31 Nature Lovers Movement v. State of Kerala, (2009) 5 SCC 373.
32 Sec. 3-A, Supra, n. 27.
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The Rajasthan HC in Om Prakash Choudhary v. State of Rajasthan,33 made it clear that

construction of interpretation centre inn forest area is not covered under the term non-forest
purpose, as the National Wildlife Action Plan prepared in 1982 makes a provision of
establishment of model interpretation centres at Wildlife Units for educating the visitors and
creating awareness in them about the wildlife. Conservation of wildlife and protection of
forest is possible only when the people are alive to the fact that conservation, protection and
development of wildlife and forest are essential for sustenance of human life and they are part
of natures great plan in which they have a role to play. Therefore, there was no need to seek
prior approval of the CG.
In Vilas Shankar Donode v. State of Maharashtra,34 the Bombay HC declared that use of
forest land for construction of road was a non-forest purpose. Construction was declared
illegal and the court ordered to closed the road and get the site reforested. Further, the court
declared that the cost of reforestation, cost of damage to forest, expenditure for laying the
electric line in forest area and incidental charges be recovered from the MLA of the ruling
party, who exercised his influence on the forest department and got the road constructed and
electric line laid on the forest land.35
CONSTITUTION OF ADVISORY COMMITTEE
The Act has also provided that the CG may constitute an Advisory Committee to advise the
government with regard to;

grant of approval u/s 2; and

any other matter connected with the conservation of forests which may be referred to it by
the Government.

JUDICIARY AND THE INTERPRETATION OF THE ACT

The Act has put a blanket ban on the use of the forest land or any part thereof for non-forest
purposes and made it a mandatory requirement to seek prior approval of the CG to make use
of forest land for non-forest purposes.
33 AIR 2005 Raj 18.
34 AIR 2008 Bom 10.
35 Id.
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The SC has made it clear in T.N. Godavarman Thirumalkpad v. UOI,36 that the term forest
in the FCA covers not only forest but also forest land, and observed that forest is no longer res
integra. Therefore it also covers dry cropland. The court has also made it clear that even if a
licence has been granted for an industry by a Ministry of the Central Government, prior
approval of the CG is necessary after the matter has been considered by the Advisory
Committee constituted under the Act of 1980.37
The totally indifferent attitude of the State Governments towards environmental consideration
also led to the passing of the FCA. The Silent Valley case38 is a significant instance of such
attitude. This case is related to an area in the Western Ghats of India in the State of Kerala
known as Palghat which contained Indias largest tropical evergreen forests with atleast 50
million years of evolutionary history and diverse and complex flora and fauna. A number of
endangered plants and animals lived there and the forests were performing the work of
maintaining the hydrological balance of the area, averting floods, preventing soil erosion, etc.
the State of Kerala started constructing a hydroelectric project in this silent valley area.
Experts including scientists attached to the Department of Science and Technology, Indian
Government, warned against the proposed plan. They warned that the deforestation was bound
to interfere with the balance of nature, affect climatic conditions and destroy the rarest of the
rare flora and fauna, prevent research in medicine, pest control, breeding of economic and
other varieties of plants. The State of Kerala pleaded the necessity for more and cheap
electricity for poor people of the State. The Kerala HC accepted the stand of the State
Government and gave a judgement against the environmentalist and conservationist. It also
did not think it proper to evaluate the scientific study of the project and concluded its
judgement with the following words:
It is not for us to evaluate these (scientific, technical, technological and ecological)
considerations again as against the evaluation already done by the Government. It is enough
to state that we are satisfied that the relevant matters have received attention before the
Government decided to launch the project. We are not to substitute our opinion and notion of
these matters for those of the Government.
36 (2001) 10 SCC 645.
37 Goa Foundation v. State of Goa, AIR 2001 Bom 318.
38 L. Prasad, Silent Valley Case: An Ecological Assessment, 8 Cochin University Law Review 128
(1984).
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We find no reason to interfere. We dismiss no applications with no order to costs.

The above judgement indicates the causal and callous attitude adopted by the Kerala HC
which did not think it proper to go into the details of the case at all. The court relied only on
the Governmental position and did not examine the issue of whether there should be
development at the cost of environment. Therefore the judgement was opposed by the
scientists, environmentalists and non-governmental organisations throughout the country.
Ultimately, the committee was set-up under the chairmanship of Prof. M.G.K. Menon in Aug.
1980, which submitted its report in 1983 and as a result the Silent Valley project was scrapped
in Nov. 1983.
In another case, the Bodhghat Hydroelectric Project was started Bastar in the State of Madhya
Pradesh and it was alleged that the SG had not given thought and due weightage to issues like
the economy, culture and ecology of the area, the submergence of vast area, the question of
rehabilitation of displaced persons and the likely gain from the project in contrast to the
devastation of the ecology. Noted environmentalists, social workers and forest
conservationists opposed the project, but a large track of land was deforested without
obtaining clearance from the CG. At last, the Prime Minister directed the Chief Minister of the
State to abandon the project and take action against erring State Officers who were involved
in the deforestation process.39
Sec. 2 of the FCA begins with the words:
Notwithstanding anything contained in any other law for the time being in force in a
State, no State Government or other authority shall make, except with the prior approval of
the Central Government, any order... of any nature enumerated in the provision.
This means it rules out any non-forest activity in the forest land without the prior approval of
the CG. The prior approval of the CG is a condition precedent. 40 It is also applicable in a case
of renewal of the existing lease.
The SC in Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P.,41 (RLE case)
made it clear that whether it is a case of first grant or renewal following exercise of option

39 N.K. Singh, P.M. asks M.P Government to punish officers for deforestation, The Indian Express,
Mar. 11, 1986.
40 T.N. Godavarman Thirumalpad v. UOI, AIR 2003 SC 724.
41 AIR 1988 SC 2187.
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by the lessee, the compliance of Sec. 2 of the Conservation Act is necessary as a condition
precedent.
The above observation has been quoted by the courts in various other pronouncements.42 It has
further been made clear by the court that the grant of renewal is a fresh grant and must be
consistent with law.43 The clearance of the CG is for five years only. No mining operation can
commence without obtaining Environment Impact Assessment (hereinafter, EIA) and prior
permission of the government.44
(i) Flagman T.N. Godavarman Thirumalpad a milestone case echoedThe judgement pronounced by the court in T.N. Godavarman II 45 has become a guiding
force in cases of grant of licence to sawmills, veneer and plywood mills within the forest
area.46 Detailed directions were issued by the SC on April 29, 2002 and December 12,
1996, wherein all the States were directed to continue expert committee to assess
sustainable capacity of sawmill and timber based industries in the States. It also directed
the CG to constitute the CEC as envisaged by Sec. 3 of the Environment (Protection) Act,
1986 to monitor the implementation of the court orders and examine the application of the
sawmill owners it must be remembered that the court has already made it clear that any
non-forest activity, mining activity and sawmills, within the forest area without the prior
approval of the CG must cease forthwith. T.N. Godavarman II particularly dealt with the
sawmills, veneer and plywood operating in the forest areas.
The Uttaranchal HC in Mohd. Hazi Rafeeq v. State of Uttaranchal,47 declared that any
interpretation which dilutes rigour of the restrictions imposed by the SC cannot be
accepted. Therefore, no sawmills can be located within 10 kms, from existing forest. In
such cases, to measure the distance, aerial distance will be considered and not the road
distance.
42 Ambica Quarry Works v. State of Gujarat, AIR 1987 SC 1073.
43 A. Chowgule & Co. Ltd. v. Goa Foundation, (2008) 12 SCC 646.
44 M.C. Mehta v. UOI, (2014) 12 SCC 118.
45 (2002) 9 SCC 502.
46 Ajendra Singh v. State of U.P., AIR 2006 All 227.
47 AIR 2006 Utt 18.
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In Muklesh Ali v. State of Assam,48 the SC has made it clear that the directions is issued
by the court for disciplinary/criminal proceeding against erring forest officers are
prospective in nature. If the departmental enquiry has been concluded in favour of the
officer, before the decision of the SC in T.N. Godavarman case on May 12, 2001, the same
cannot be reopened thereafter. Any order violative of that order is liable to be quashed.
(ii) Permission of the CG mandatoryIt has been made clear time and again that if the lessee has applied for renewal through
proper authorities who also recommended the same, and no rejection letter was received,
the lessee is entitled to continue mining within permissible limit. In Naresh Kumar Jain
v. Commr.,49 the petitioner applied for the renewal of the already granted stone mining
lease. His prayers for renewal was forwarded by the Forest Department to the CG for the
permission in reference to provisions of the Forest (Conservation) Act, 1980. The
petitioner did not receive any rejection order, but received a memo of rejection of lease
dated October 26, 1996 for second renewal lease for stone mining. Meanwhile, the lessee
continued his work in the broken area. The court found that the lessee was working in a
broken area; therefore, he was permitted to continue his mining activity in broken area
only. But the court cautioned that the petitioner should not cause any damage to the trees
of that area. He could continue to work till he is communicated of the rejection of his
application by the CG. Ambica Quarry Works v. State of Gujarat,50 was distinguished as in that
case the SG was of the opinion that no renewal should be granted and in the present case, the State
Forest Department recommended for the renewal of mines to the CG.

In Kamaljeet Singh Ahluwalia v. State of Bihar,51 the Jharkhand HC made it clear that all
mining activities in forest area requires prior permission of the CG from the date the
FCA came into force.52 This clause is equally applicable for carrying on mining activities
even on the broken area prior to Oct 25, 1980. It had been already clarified by the SC in
Ambica Quarry long back in 1987. Therefore, the petition was dismissed.
48 (2006) 5 SCC 485.
49 AIR 2006 Jhar 96.
50 Supra, n. 42.
51 AIR 2006 Jhar 44.
52 FCA came into force on Oct. 25, 1980.
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In State of M.P. v. Kartar Singh Bagga,53 the court made it clear that even if patta has
been granted, it does not include the permission to fell trees, when a land in question falls
within a protected forest land. It was a clear violation of Scr. 2 of FCA. The court
further directed the SG to constitute a committee consisting of conservator of forest and
others to decide how many trees could be cut in the area.
In K. Balakrishnan Nambair v. State of Karnataka,54 the court held that renewal of lease
also requires prior permission of CG, though the lease was granted in 1949. The
government did not extend the lease as the leased land was surrounded by thick forest.
NO RETROSPECTIVE EFFECT
The FCA is prospective in its operation and not retrospective. The term prior approval of
Sec. 2(i) of the Act makes it clear that Sec. 2 is inapplicable insofar as the occupations and
encroachment of the forest land made prior to the commencement of the Act are concerned. It
is applicable only after this date.55

Public Purpose (Public benefit)In Goa foundation v. Konkan Railway Corpn.,56 the Bombay HC observed that when a
project had been undertaken by the CG only after the renowned experts from the area, the
prior approval of the CG required under Sec 2 of FCA was not necessary. But the court has
to strike a balance between the development and environmental pollution. In this case, a PIL
was filed by an NGO to stall a project undertaken by the Railways Central Government to lay
down a broad gauge railway line from Bombay to Kerala via Mangalore to be completed by
the Konkan Railway Corporation Ltd. The court declined to interfere with a project of such
magnitude intended to meet the aspirations and need of the people of that area. It was declared
by the court that while examine the grievance of the possible adverse effect on environment,
the benefit which will be derived by the large number of people by the construction of rail-line
could not be brushed aside. Having this in view, the PIL was dismissed by the court.
53 AIR 2006 MP 868.
54 AIR 2011 SC 1628.
55 Supra, n. 31.
56 (1994) 1 Mah L.J. 21.
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In Tarun Bhagat Singh v. UOI,57 the SC declared that even if the mining operations were
outside the tiger reserved forest which has been declared as a protected area, prior
permission from the CG was necessary for mining activity.
In T.N. Godavarman v. UOI,58 the court observed that for laying pipelines in Wild Ass
Sanctuary of Gujarat, the prior approval of the CG is essential since it happens to be a forest
land. Further it was declared that all forest clearance given under the FCA may be uploaded
on Ministrys website to ensure public accountability. It was reiterated that to avoid the
controversy of forest and non-forest land, the Stats must constitute Appraisal Committees to
identify the areas which are forests- notified, recognised or classified under any law, and
irrespective of the fact that the land of such forest stands denuded, degraded or cleared. Thus,
geo-referenced district forest maps containing details of location and boundary must be
prepared for the purpose of the FCA.

57 1993 Supp (3) SCC 115.

58 WP (C) No. 202 of 1995.
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CHAPTER - VI
SCHEDULE TRIBE AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF
FOREST RIGHTS) ACT, 200659
This Act was passed to recognise and vest the forest rights and occupation in forest land in
forest dwelling schedule tribes and other traditional forest dwellers who have been residing in
such forests for generations, but whose rights could not be recorded, to provide for a
framework for recording the forest rights so vested and the nature of evidence required for
such recognition and vesting in respect of forest land. The Act is a welcome venture and a
laudable step to restore the rights of the indigenous people of India which form 8.08 percent
of Indian population.
Nearly 250 million people live in and around forests in India, of which the estimated
indigenous Adivasi or tribal population stands at about 100 million. To put these numbers in
perspective, if considered a nation by themselves, they would form the 13th largest country in
the world, even though they cannot be depicted as representing any singular, monolithic
culture. For this population, there cannot be any better news than the governments
willingness to recognise their customary rights and undo the historical injustice they have
faced, as outlined in the FRA.60
59 Act 2 of 2007.
60 Arvind Khare, Lets not miss the wood, The Hindu, June 27, 2015 (06:46 IST).
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Such legislation is necessary to ensure the transfer of benefits to communities that have
nurtured natural resources. India has launched a domestic process under the Biological
Diversity Act to document, regulate, and manage its genetic resources. But it has a long way
to go in creating comprehensive documentation and involving local communities as
stakeholders.61
The recently enacted Scheduled Tribes (Recognition of Forest Rights Act), 2006 although
generated a lot of hope, barely six-months after the passing of the act, eviction of adivasis
from the forests had begun and in 2007 thousands of forest dwellers were protesting. The law
makes legal the practices that already enjoy legitimacy at the local level; however it restricts
substantial changes in social relations to happen over forests.62
With hardly any greenery to camouflage the loss, the dry summer months have exposed a
massive scale of destruction of forests in the backward tribal district of Adilabad in Andhra
Pradesh. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006, (FRA) has emerged as a major factor having generated, paradoxically,
decimation of forests on an unprecedented scale.63
This Act is a result of International developments and some pronouncements made by the
Indian SC like P. Rami Reddy v. State of A.P.,64 Banwasi Sewa Ashram v. State of U.P.,65
Samatha v. State of A.P.,66 etc., to ascertain and recognise the rights of indigenous people.
The National Forest Policy of 1988, Draft National Policy on Resettlement and Rehabilitation
for Project Affected Families on Feb. 17, 2004, Draft National Development, Displacement,
Rehabilitation Policy of 2005 and draft of National Policy on Tribal in 2004 also motivated
the government to pass this legislation. The draft of National Policy on Tribal in 2004
recognised that Scheduled Tribes in general are the repositories og indigenous knowledge and
61 Editorial, Valuing Biodiversity, The Hindu, Sep. 27, 2011 (23:50 IST).
62 Nandini Sunder, Legal Grounds: Natural Resources, Identity And The Law, 3 NUJS L. Rev. 123
(Jan-Mar, 2010).
63 S. Harpal Singh, Forest Rights Act a bane or boon?, The Hindu, Apr 27, 2013.
64 AIR 1988 SC 1626.
65 Supra, n. 19.
66 AIR 1997 SC 3297.
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wisdom which must be protected. The Indian Constitution also has provided provisions for the
administration of Scheduled Tribes areas and to protect their rights. 67 Thus, the Act of 2006 is
the result of constitutional mandates and directives of the SC to protect and preserve the rights
to the Tribal people, their identity and culture and that they have a right of self-governance
and self-determination.
The present Act of 2006 has been passed with an object to recognise and vest the forest rights
and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest
dwellers who have been residing in such forests for generations but whose rights could not be
recorded...
It was also declared by the government that the historical injustice done to the indigenous
people has been undone by passing this Act. The Act has acknowledged that:
the recognised rights of the forest dwelling Schedule Tribes and other traditional forest
dwellers include the responsibilities and authority of sustainable use, conservation of
biodiversity and maintenance of ecological balance and thereby strengthening the
conservation regime of the forests while ensuring livelihood and food security of the forest
dwelling Schedule Tribes and other traditional forest dwellers.
Sec. 2(c) of the 2006 Act defines the term forest dwelling Schedule Tribes which means
the members or community of Schedule Tribes who primarily reside in and who depend on
the forests and forest lands for bonafide livelihood needs and includes the Schedule Tribe
pastoralist communities.
Sec. 2(o) of the Act defines the term other traditional forest dwellers as any member or
community who has for atleast three generations prior to the 13-12-2005 primarily resided in
and who depend on the forest or forests land for bonafide livelihood needs.
Sec. 3 of the Act conferred 13 forest rights to the forest dwellers. These rights include:
1. right to hold and live in forests;
2. Right to ownership, access, to collect, use and dispose of forest produce which has been
traditionally collected;
3. Rights including community tenures of habitat and habitation for primitive tribal groups
and pre-agricultural communities;
4. Right to access biodiversity and community right to intellectual property and traditional
knowledge related to biodiversity and cultural diversity;
5. Right to protect, regenerate or conserve or manage any community forest resource;
6. Right to settlement and conversion of forest villages, old habitation; and
7. Right to in situ rehabilitation including alternative land allocation.
67 Arts. 29(1), 164(1), 244, 244-A, 275(1) and 338-A; Schedules V & VI, Supra, n. 22.
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Section 4 of the Act has specifically recognised that if the indigenous/tribal people are living
in critical wildlife habitats of national parks and sanctuaries and they are to be shifted, such
migration/shifting will not be allowed unless,
(i)
A resettlement or alternative package has been prepared and communicated that provides
(ii)

a secure livelihood... and fulfils the requirements or affected persons/communities;

The free informed consent of the Gram Sabha of the area for the proposed resettlement

(iii)

has been obtained in writing; and

The facilities and land allocation at the resettlement location have been completed as per
promised package.

The funds lying with CAMPA present a great prospect to de-fragment the last remaining
patches of old-growth natural forests. India just cannot afford to lose this fantastic opportunity
to implement a win-win solution that not only consolidates critical wildlife habitats but also
delivers social justice to disenfranchised forest communities.68
Further, once the resettlement takes place, there shall be no subsequent diversion from that
place. Thus, for the fist time, some right to settlement and settlement procedure has been
provided by the Act. The forest right shall be conferred free of all encumbrances and
procedural requirements, including clearance under the FCA, requirement of paying the net
present value and compensatory afforestation for diversion of forest land, except those
specified in this Act. Therefore, it can be said that the Act is a welcome venture in this field,
may be late but laudable action.
The compensatory afforestation mechanism instituted to balance the devastating loss of
natural forests has failed abysmally. The CAGs report is proof that Indias environmental
health has been in free fall since the dawn of economic reforms. The Union government as
well as the States have played an active role in this decline. The Supreme Courts Central
Empowered Committee (CEC) stepped in where governments failed and set up a framework
for monetisation of forests.69
Under the provisions of the Act, tribals get individual rights over forest lands such as
occupation for habitation/self-cultivation as well as community rights, which include right to
own, access, use and dispose all minor forest produce as also the right and duty to protect,

68 Supra, n. 25.
69 Editorial, Protecting Forest Land, The Hindu, Sep. 13, 2013 (01:18IST).
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ASSIGNMENT OF SEMINAR - I

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regenerate or conserve or manage forest resources as community forest resources for

sustainable use.70
The Gram Sabha shall be the authority to initiate the process for determining the nature and
extent of individual or community forest rights or both that may be given to the forest
dwelling Schedule Tribes and other traditional forest dwellers within the social limits if its
jurisdiction under this Act by receiving claims, consolidating and verifying them and
preparing the map delineating the area of each recommended claim in such manner as may be
prescribed for exercise of such rights and the Gram Sabha shall, then, pass the resolution to
that effect.71
Any person aggrieved by the resolution of the Gram Sabha may prefer a petition to the SubDivisional Level Committee (SLDC) constituted under sub-section (3) and the SLDC shall
consider and dispose of such petition. An appeal against the SLDC shall lie to the District
Level Committee (DLC).72 Under this Act the Gram Sabha shall be the authority to initiate the
process for determining the nature and extent of individual or community forest rights or both
that may be given to the forest dwelling Schedule Tribes and other traditional forest dwellers
within the local limits of its jurisdiction.
Sec. 7 has provided that there shall be atleast one woman nominee out of three nominees of
Panchayati Raj institution in the SLDC, the DLC and the State Level Monitoring Committee.
This all proves that the principle of self-determination and principle of participatory
democracy has been applied in provisions of this Act.
The Act has also the provision for taking cognizance of a case by the court which reads as
follows:
No court shall take cognizance of any offence u/s 7 unless any forest dwelling Schedule
Tribe in case of dispute relating to a resolution of a Gram Sabha or the Gram Sabha through
a resolution against any higher authority gives a notice of not less than sixty days to the State
Level Monitoring Committee has not proceeded against such authority.73
70 Editorial, State must follow Act for forest rights of tribals: HC, The Indian Express, May 04, 2013
(04:43 IST).
71 Se. 6(1) of the Act 2006.
72 Sec. 6(8), Id.
73 Sec. 8, Id.
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The Act has been appreciated as a potential tool

1.
2.
3.
4.

To empower and strengthen the local self governance;

To address the livelihood security of the people;
Leading to poverty alleviation and pro-poor growth;
To address the issues of conservation and management of the natural resources and

conservation governance of India; and

5. To protect the indigenous knowledge and folk culture.
On the other hand, the Act ha been criticised as having failed to distinguish between
indigenous/tribal people and other forest dwellers properly. Further, restriction of four
hectares of land to be occupied by the individual or family is a blow to their right to land.
Such forceful divestment would amount to denial of human right to livelihood. It is to be
noted that the Act has also failed to take note of those tribal people who are on the verge of
extinction.
In Lafarge Umiam Mining (P) Ltd. v. UOI,74 the SC has explained the proactive and
significant role of tribal/indigenous people in a recently decided case. The court observed that
the native and indigenous people are fully aware and they have the knowledge as to what
constitutes conservation of forest and development... these native and indigenous people know
how to keep the balance between economic and environment sustainability.
CHAPTER - VII
NATIONAL FOREST POLICY, 1988
The Policy of 1988 was a turning point in the management of forests in India. It was declared
by the government that the principle aim of the policy is to ensure environmental stability
and maintenance of ecological balance including atmospheric equilibrium which are vital for
sustenance of all life forms- human, animal and plant. The derivation of direct economic
benefit must be subordinated to this principle aim.
Indias National Forest Policy 1988 aims at maintaining 33 per cent of the geographical area
under forest and tree cover. The good news is that the country still has large patches of
contiguous forests accounting for about 40 per cent of the forest cover, according to Forest
Survey of India (FSI).75

74 AIR 2011 SC 2781, 2813.

75 Meena Menon, Forest cover has increased despite some setbacks, The Hindu, July 9, 2014 (05:35
IST).
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Thus conservation of forest is essential as conservation includes preservation, maintenance,

sustainable utilisation, restoration and enhancement of sustainable environment.
Forest conservation has once again hogged the limelight in recent times with the Government
taking steps on a war footing to control the magnitude of environmental degradation caused in
the State. Strategies devised to protect the environment have not shown any tangible results so
far. As a result of the plundering of trees, floods have become a common occurrence. Tribals
have been rendered homeless. The forest division is ill-equipped to tackle the plundering of
forest resources or protect the rights of the tribals. It is obvious that a large proportion of the
forest area is in the possession of encroachers in connivance with real estate agents, politicians
and government officials. A committee should be formed to address issues such as tough
human rights, social justice and resource management.
The factors responsible for encroachment such as lack of political will, victimisation of forest
officials, poor boundary demarcation and alienation of regularised land should be addressed.76
Thus, this policy was passed with following basic objectives to maintain environment
stability through preservation and, where necessary, restoration of the ecological balance that
has been adversely disturbed by the serious depletion of the forests of the country.
The objectives of 1988 policy are:

Conserving the natural heritage of the country by preserving the remaining natural forests
with the vast variety of flora and fauna, which represents the remarkable biological

diversity and genetic resources of the country.

Checking soil erosion and denudation in the catchment areas of rivers, lakes, reservoirs in
the interest of soil and water conservation, for mitigating floods and droughts and for the

retardation of siltation of reservoirs.

Checking the extension of sand-dunes in the desert areas of Rajasthan and along the

coastal tracts.
Increasing substantially the forest /tree cover in the country through the massive
afforestation and social forestry programmes, especially on all denuded, degraded and

unproductive lands.
Meeting the requirements of fuel-wood, fodder, minor forest produce and small timber of

the rural and tribal populations.

Increasing the productivity of forests to meet essential national needs.
Encouraging efficient utilisation of forest produce and maximising substitution of wood.
Creating a massive peoples movement with the involvement of women, for achieving
these objectives and to minimise pressure on existing forests.

76 Susan K. Joseph, Conservation of Forests: Need of the Hour, The Hindu, Feb 26, 2005.
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The policy suggested several strategies. These are:

Development of atleast one-third area of the country under forest cover.

To encourage afforestation, social forestry and farm forestry.
Management of forests by the SGs.
The rights of concessions, including grazing, should always remain related to the carrying
capacity of forests and should primarily be for the bonafide use of the communities living
within and around of the forest areas, specially the tribals. Substitute of wood must be
identified and must be used like cement railway sleepers, cemented wooden panels in the

houses, etc.
Diversion of forest land for any non-forest purpose should be subject to the most careful
examinations by specialists from the standpoint of social and environmental costs and

benefits. Regeneration/compensatory afforestation is an essential part of such diversion.

Wildlife conservation is a part of this strategy.
To safeguard the customary rights and interests of such people.
Damage to forests from encroachments, fires and grazing must be stopped.
Special strategy for forest based industries should be developed.
Forest extension, research and forest education are also essential part of forest policy.

All these programmes will be supported by legal and financial support form the government.
On the basis of this policy, many steps have been taken by the government as EIA
Notifications of 1994 and 2006 is the result of such strategy. The courts have also based their
judgements on this policy. It was widely referred by the SC in Lafarge Umiam (P) Ltd. v.
UOI (Lafarge Umiam Mining case).77
In this case the Sc has directed that the CG and the SGs should appoint Appropriate
Authority preferably in the form of Regulator at the Centre and the State level to ensure the
implementation of the National Forest Policy of 1988. The National Regulator shall appraise
the projects, enforce environmental conditions for approvals and impose penalty on polluters.
It was further clarified that as per Office Memorandum of the MoEF, dated April 26, 2011, it
is essential to seek forest clearance from the forest department before the grant of the
environmental clearance.78 The court also issued 15 guidelines to be followed in future where
the proposal involves the forest land. It was also emphasised that the National Forest Policy,
1988, which has laid down far-reaching principles, must govern the grant of permission
under Sec.2 of the FCA. It was also declared that the National Forest Policy, 1988 should be
77 Supra, n. 74.
78 Supra, n. 1.
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read as a part of the provisions of the Environment (Protection) Act, 198679 read together with
the Forest (Conservation) Act, 1980.80

Chapter - VIII
CONCLUSION
How precisely the Act will play out in different parts of the country is going to depend on
several political, policy and ground-level factors, including the level of mobilization and
cohesion of forest-dwelling communities in a particular area, the sensitivity of state
government officials administering the Act given Indias federal structure, the ecological
fragility of the area, and increasingly, whether the area is considered a Maoist stronghold to be
pacified through para-military force.
The FRA itself is undoubtedly a landmark legislation providing the legal framework for major
pro-poor institutional reform in the governance of the countrys forests. Providing a
remarkably comprehensive coverage of redressal of rights deprivations, the Act gives
extensive provision for major reforms in tenure and forest governance. There are indeed issues
with precise wording; however the bigger issue is whose interpretation of the Act will prevail.
Whether it will be taken up and implemented according to its spirit, or rather whether the
terms will be interpreted narrowly to divert the intent. Evidence from implementation to date
79 Supra, n. 24.
80 Supra, n. 27.
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suggests that while the state is attempting the most narrow interpretation, grassroots
movements are demanding implementation as per the spirit of the Act.
Given Indias federal structure, there is also wide variation in how the Act is being
implemented between different states. The wording of the text is critical for determining the
scope of interpretation of inclusions and exclusions in implementation. Non-tribal forest
dwellers are clearly likely to be amongst the biggest category of the excluded due to the
unreasonable requirement of having to prove 75 years of residence. Many others suffering
from the deprivation of rights are also likely to be excluded due to not being able to marshal
evidence of their eligibility. The rules have left their task half done with major omissions.
They have failed to provide any guidance on the recognition of the more complex rights. By
not clarifying the Gram Sabha responsible for initiating the process of recognizing rights for
different types of villages, they have enabled state governments to violate a critical provision
of the law meant to ensure that claims are made in an accessible, transparent and democratic
forum. It is also clear that even if implemented in the best possible manner, complementary
institutional reform in a host of other laws and structures is required to achieve the full propoor mandate of the law. To date, there is no evidence of this taking place.

While safeguarding the customary rights and interests of such people the author makes
following recommendations:
1. One of the major causes for degradation of forest is illegal cutting and removal by
contractors and their labour. In order to put an end to this practice it is necessary to give the
management of the forest to village or tribal community with the assistance of forest
department. So that the opinion of the village or tribal community would be considered for
their best interest.
2. Protection, regeneration and optimum collection of minor forest produce along with
institutional arrangements for making of such produce.
3. Indigenous peoples and individuals should not be discriminated in the exercise of their
rights, in particular that based on their indigenous origin or identity.
4. Grazing of the forest areas should be regulated with the involvement of the community.
5. Indigenous peoples and individuals have the right to belong to an indigenous community or
nation, in accordance with the traditions and customs of the community or nation concerned.
No discrimination of any kind may arise from the exercise of such a right.

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6. Indigenous peoples have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired. Indigenous peoples shall have
the right to own, use, develop and control the lands, territories and resources that they possess
by reason of traditional ownership or other traditional occupation or use, as well as those
which they have otherwise acquired. States shall give legal recognition and protection to
these lands, territories and resources. Such recognition shall be conducted with due respect to
the customs, traditions and land tenure systems of the indigenous peoples concerned.
7. Encroachment on forest lands has been on the increase. This trend has to be arrested and
effective action taken to prevent its continuance. Thousands of indigenous families and forest
dwellers are being evicted or live under threat of eviction across a rapidly industrializing
India. Mass evictions are being fuelled by corporations and government officials eager to
control their valuable land.
8. Forestry should be recognized both as scientific discipline as well as profession. Agriculture
Universities and institutions dedicated to the development of forestry education should
formulate curricula and courses for imparting academic education and promoting research.
9. Indigenous peoples must feel secure in their land tenure and play a central role in forest,
land and resource management, in land-use systems and in conflict resolutions.
BIBLIOGRAPHY

Chhatrapati Singh, Common Property and Common Poverty, (OUP Delhi 1986).
Das Jagannath And R.N. Pati, Tribal and Indigenous people of India problems &

perspective, (2002), APH Publishing Corporation, New Delhi.

Divan Shyam & Rosencranz Armin, Environmental Law & Policy in India, Cases,

Materials & Statutes, Ed. 4th (2005), Oxford University Press.

Satish C. Shastri, Environmental Law, p. 317, ED. 4th (2012), Eastern Book Company.

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