KULDEEP KUMAR KOHLI
RZ 200B, STREET NO. 3, RAM CHOWK,
SADH NAGAR PART I, PALAM COLONY, NEW DELHI – 110045
Mobile: 08860332404
2 Violation of the provisions of the Forest (Conservation) Act, 1980 as the felling of trees or any kind of construction in Aravali Hill requires prior approval under section 2 of Forest (Conservation) Act, 1980
DOCUMENTS TO PROVE THAT THE LAND IS NOT COVERED UNDER INDIAN FOREST ACT 1980 AND HENCE NOT A FOREST LAND AND THEREFORE NON APPLICABLITY OF INDIAN FOREST ACT 1980
1. While Ansal was working on this project in the year 1990, a well-known Environmentalist, Dr. Shekhar Singh, filed a Public Interest Litigation [PIL] before the Hon’ble Supreme Court of India bearing Writ Petition No. 598 of 1990 - Shekhar Singh & others Versus Union of India. The said petition was dismissed in the year January 1995. The Ministry of Environment & Forest, Government of India had then through their Under Secretary, Mr. G. Hari Kumar filed an Affidavit.
Para 4 of the said Affidavit states - “The respondent humbly submits that the said lands were purchased by Ansals and Aggarwal from individual owners – the lands were not allotted to them by the Government”.
Para 5 of the Affidavit states - “the respondent humbly submits that the lands are not recorded as forest lands. Therefore Forest (Conservation) Act 1980 is not applicable to these lands”. Para 11 of the Affidavit states “” In reply to para V of the petition it is humbly submitted that on receipt of representation from Shri Shekhar Singh and others regarding alleged illegal transfer of forest land in Haryana in favour of Ansals and Aggarwal, a detailed enquiry was conducted by this Ministry. During the enquiry it was revealed that about 2,000 acres of land in Aravali Hills near Raisen Village in Gurgaon District has been purchased by Ansals and Aggarwal. No land has been allotted by Government to them. The land purchased by Ansals is covered under General Section 4 of Punjab Land (Preservation) Act. In respect of this land ownership as well as possession of the land is with individuals and not with Government”. The affidavit further states “these lands have not been recorded as ‘Forest” anywhere in Government records. These lands are neither Reserve Forest nor Protected Forest nor recorded forest”.
Para 11 further states that “the land purchased by Ansal is covered under General Section 4 of Punjab land (Preservation) Act. In respect of this land ownership as well as possession of the land is with individuals and not with Government.
These lands have not been recorded as “Forest” anywhere in Government records.
These lands are neither Reserve Forest, nor Protected Forest, nor recorded forest.
As land purchased by Aggarwal and Ansals is not recorded as Forest in Government records, Forest (Conservation) Act 1980 is not applicable to such lands.
Copy of Order dated 27.01.1995 of the Hon’ble Supreme Court is available at PAGE NO. 2635
2. In CWP Nos. 5603, 6688, 668 and 6690 of 2015A in the matter of M/s Delhi Towers and Estates Pvt. Ltd. V/s State of Haryana before the High Court of Punjab & Haryana an Affidavit has been submitted by Mr. T L Satyaprkash, IAS, Deputy Commissioner, Gurgaon based on a communication No. 867 G dated 17.7.2015 from the Divisional Forest Officer and the relevant extract from the Affidavit reads as under:
‘That as per report of Tehsildar, Sohna, the petitioner and its associate companies have purchased the land in the revenue estate of Raiseena Tehsil Sohna and not in the revenue estate of village Gairatpur Bass. The land purchased by the petitioner is not covered under section 4 and 5 of the Punjab Land Preservation Act, 1900 and Aravali Plantation Scheme and Reserve Forest/Protected Forest as reported by the Divisional Officer Forest vide letter No. No. 867 G dated 17.7.2015. However the general section 4 of Punjab Land Preservation Act is applicable in the area pf Tehsil Sohna, District Gurgaon as per Haryana Government Notification dated 4.1.2013….
3. As per report of the Patwari on the instructions of the Tehsildar regarding the Ansals Aravali Retreat it reads – As per consolidation of year 1955-56 up to date is ownership of private owners. This ownership of this area never remained with the Government of Haryana or Gram Panchayat.
4. The entire area in 1988 was a barren hilly area and was source of nothing but radiation of heat by virtue of its being stony except stone quarrying with Mining rights in favour of M/s Narain Singh & Associates granted through Mining Officer, District Industries Centre, Gurgaon granted on 4.5.1989 to 1992 which were bought over by M/S
( THIS IS A MATER OF RECORD IN THE CASE NO. 598 OF 1990 BEING A WRIT PETITION FILED BY SHEKHAR SINGH & OTHERS VERSUS UNION OF INDIA THROUGH SECRETARY MOEF WHICH WAS DISMISSED BY THE HONOURABLE SUPREME COURT ON 27.1.1995 – PAGE NO. 239-294)
5. That in his reply Shri Kulwinder Singh, Divisional Forest Officer, Gurgaon has said in uncertain terms as under:
“Land parcels seem to be in Section 4 of PLPA 1900. For areas covered in general section 4 only permission for tree felling is required from forest department. If the offender does not take the permission only compensation for trees is realised as per the provision of the said Act.
6. That the Conservator of Forests, South Circle, Gurgaon wrote to M/s Ansal Properties & industries Ltd vide letter No. 1344 dated 29.6.1993 upon a query by the later that the Khasra Number in question in the village Raisina was not closed under Section 5 of the Punjab Land Preservation Act 1900 and the restriction under the said Act does not apply thereto.
SUPREME COURT IN THE MATTER OF B S SANDHU VERSUS GOVERNMENT OF INDIA CIVIL APPEAL NOS 4682-4683 OF 2005 ON 21.5.2014 OBSERVED:
“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 as per the PLP Act, 1900 and therefore was forest area.
Hence the first question that we have to decide is whether conclusion of the High Court that the land which is notified under section 3 of the PLP Act, 1900 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 herein below:
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 lime had not ordinarily been so-quarried or burnt prior to the publication of the notification under section 3;
c. the cutting of trees or timber or the 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 bonafide domestic or agricultural purposes;
d. the setting on fire of trees, timber or forest product;
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 villagers 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 general or special order, temporarily or permanently 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 stone, or the burning of lime, at places where such stone or lime had not ordinarily been so-quarried or burnt prior to the publication of the notification under section 3;
c. the cutting of trees or timber or the 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 bonafide domestic or agricultural purposes;
d. the admission, herding, pasturing or retention of castle generally, other than sheep and goats or of any class or description of such cattle.
It will be clear from the language of Section 3 of the PLP Act, 1900 extracted above that for the better preservation and protectionof 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.
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), €, (f) and (g) 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”.
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 Section 4 and 5 of the said Act is “forest land” is also legally not correct.
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 Vs. Union of India & others.
The relevant portions of the order dated 12.12.1996 in the case of T N Godavarman Thirumulkpad vs. Union of India & others on the meaning of the words “forest “and “forest land” is extracted below”
The forest Conservation Act, 1980 was enacted with 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 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 vs. Union of India & others 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, 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.
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 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 Forest (Conservation) Act, 1980.
Warm Regards
Kuldeep Kumar Kohli
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