- (1.) WHETHER Section 2 of the Forest (Conservation) Act, 1980 (for short "the 1980 Act") is prospective in operation and whether the Government of kerala could, without obtaining prior approval of the Central Government grant pattas/lease hold rights to the unauthorised occupants/encroachers of forest land are the questions which arise for determination in this appeal filed against the Order of the Full Bench of the Kerala High Court.
(2.) THE Indian society has, for many centuries, been aware and conscious of the necessity of protecting environment and ecology. Sages and Saints of India lived in forests. Their preachings contained in Vedas, Upanishadas, smritis etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main moto of social life is to live in harmony with nature. It was regarded as a sacred duty of every one to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora fauna and every species of life. With a view to make provision for better protection and management of forests in the State, Maharaja of Travancore enacted "the Travancore Forest regulations of 1068" (for short, "the Regulations" ). Clause 3 of the Regulations provided that Diwan of the State could, with the sanction of Maharaja constitute any land at the disposal of Government a reserved forest after following the procedure prescribed in Clause 4, i. e. publication of notification in Government Gazette containing proposal for declaring the particular land as a reserved forest, holding of inquiry by the Forest Settlement Officer and issue of proclamation under Clause 6 inviting claims from the affected persons. Clause 7 of the Regulations contained a bar against acquisition of right in or over the land included in the proclamation between the date of publication of proclamation and the date fixed by final notification to be issued under clause 18. It was also provided that/no fresh clearings for cultivation or for any other purpose shall be made on the land to be declared as reserved forest except with the written permission of the Forest Settlement Officer. Clauses 8 to 17 contained procedure for dealing with the claims of the individuals, disposal thereof, by the Forest Settlement Officer, hearing of appeals by Zila Court and the High Court. Clause 20 of the Regulations provided for dereservation of reserved forest. Clause 21 provided for penalties against trespass and damage to reserved forest and acts prohibited in such forests. In terms of Clause 22 of the Regulations, the Government could make rules to regulate the use of pastures and natural produce of any land at the disposal of the Government, which may not have been included in a reserved forest. By virtue of Clause 25, the Government was empowered to issue notification for regulating or prohibiting vegetation in any forest or waste land not belonging to the Government, the breaking up or clearing of land or the firing or clearing of vegetation. If the owner of the land was to decline compliance of the directions contained in the notification, the government could resume the forest or land on lease for a specified period. Notwithstanding the enactment of aforementioned Regulations, parts of reserved forests in the erstwhile State of Travancore were unauthorisedly occupied by landless persons who undertook agricultural operations for their survival. In 1940, the Government of the State of Travancore sanctioned "kuthakappattom" grants in the reserved forests. Thereafter, a policy was framed for leasing out forest lands to individuals, co-operative societies and associations for cultivation of food crops. In 1944, Maharaja of Travancore made Kuthakappattom Rules for grant of lease of government land and trees by public auction. During that period, forest lands in the erstwhile State of cochin were also made available for cultivation of food crops. In view of the liberal attitude and policies of the Governments of the erstwhile States, large tracts of reserved forest/forest land were unauthorisedly occupied/encroached and used for non-forest purposes. After formation of the new State, the government took a serious view of the unauthorised occupation/encroachment of forest land and decided that encroachments made after 1st April, 1957 will be removed. However, that decision remained on papers and nothing appears to have been done to remove unauthorised occupation/encroachments of forest land despite the fact that the legislature of the new State enacted the kerala Forest Act, 1961 (for short, "the 1961 Act") for protecting forests. After about four years, the State Government constituted range-based committees for demarcation of encroached portions of forest land. The State Government also constituted a committee under the chairmanship of Shri K. P. Radhakrishna menon, Special Collector (Forest Conservation) for preparing a scheme for protection of valuable forests in the State and also for suggesting solution to the problem created due to settlement of large number of persons in the areas declared as reserved forests. After considering the report of the committee, the state Government issued G. O. (P)98/63/agri. dated, 30th January, 1963 for regularisation of unauthorised occupation/encroachment of forest land made before 1st January, 1960. However, this time also effective steps do not appear to have been taken for freeing the forest land from those who unauthorisedly occupied or made encroachments after 1st January, 1960. As a result, more and more areas of forest land were encroached, sometimes by landless poor and on other occasions by not so poor segments of the society. In order to find out a permanent solution to this perennial problem, the State Government constituted another committee, which came to be known as Maniyangadan committee. The report submitted by that committee was considered by the parliamentary Consultative Committee on Kerala, which made several recommendations including the one that cut-off date fixed for regularisation of unauthorised occupation/encroachment of forest land be changed from 1st January, 1960 to 1st January, 1968. The State Government accepted some of the recommendations and issued GO (P)98/68/agri. dated, 7th June, 1968. Even this did not deter people from making further encroachment on forest land and use the same for non forest purposes and due to lack of political will the Government continued to postpone drastic action till it was decided that all encroachments of forest land made prior to 1st January, 1977 will be regularised by framing a policy and those made on or after 1st January, 1977 will be removed. However, before that decision could be implemented, the 1980 act was enacted by. Parliament and in view of the non-obstante Clause contained in Section 2 thereof, the State Government could not pass any order for regularising unauthorised occupation/encroachments of forest land.
(3.) AFTER almost six years of the enforcement of the 1980 Act, Agricultural production Commissioner and Secretary (Agriculture and Forests), Government of Kerala, vide his Letter No. 51289/fg1/83/ad dated, 26th June, 1986 apprised his counterpart in the Government of India i. e. the Secretary, Ministry of forest and Environment, Department of Forest and Wildlife with the human face of the problem of encroachment/unauthorised occupation of forest land and requested that the Central Government may permit regularisation of such occupation/encroachment by issue of title deeds under the Kerala Land assignment Rules. For the sake of reference that letter is reproduced below: JUDGEMENT_1805_UJ4_2009Html1.htm On receipt, of the aforementioned letter, the Government of India, ministry of Environment and Forests sent letter dated, 2nd April, 1992 to secretary, Forest and Wildlife (C) Department, Kerala, requiring the latter to furnish information about the assurance given by the Chief minister, Kerala on the floor of the legislature and also asked for the details of the encroachment of forest area sought to be regularised in different districts and the scheme of compensatory afforestation. The state Government furnished the necessary information. Thereafter, the central Government granted conditional approval for regularisation of pre-1st January, 1977 encroachments of forest land. This was conveyed by the Ministry of Forest and Environment, Government of India to the government of Kerala vide Letter No. 8-118/86-FC dated, 23rd March, 1993, the relevant portions of which are extracted below: After careful consideration of the proposal of the State Government the Central Government hereby, agrees in principle for approval for diversion of 28,588. 159 hectares forest land in Idukki, Pathanamthitta, thrissur, Ernakulam and Kollam Districts for regularisation of pre-1st january, 1977 encroachments in Kerala subject to the fulfillment of following conditions, (i) Ground verification and demarcation of area to be regularised in favour of individual encroachers shall be done by the State government. (ii) Regularisation of encroachments shall not be done in favour of encroachers otherwise found eligible either in the midst of the forest area or in Periyar Tiger reserve / wildlife sanctuary. Such encroaches one to be shifted on the fringe of the forests, for which excess area available for eligible encroachers may be utilized. (iii) Detailed map showing demarcation of the area to be regularised in favour of individual encroachers shall be got prepared, (iv) Regularisation of encroachments in favour of eligible encroachers shall not be done in excess of assignment permissible as per Kerala land Assignment Rules, 1988. The excess area with such encroachers shall be taken back from the possession of the encroachers and shall be utilized for shifting eligible encroachers from the midst of the forest areas or from Periyar Tiger Reserve area, (v) A comprehensive scheme for soil conservation and agro forestry shall be prepared and implemented as a time bound programme to check accelerated soil erosion and siltation of dams taking place in the area. (vi) The State Government shall give firm commitment that funds for the compensatory afforestation over double the degraded forest land shall be provided to the Forest Department as per the phased compensatory afforestation scheme. The compensatory afforestation shall be done within a period not exceeding five years. 3. After receipt of compliance report on the fulfillment of the above conditions from the State Government, formal approval will be issued in this regard under Section 2 of the Forest (Conservation) Act, 1980. Transfer of forest land to user agency should not be effected by the state Government till formal Order approving diversion of forest land are issued by the Central Government. ;