'Centre's Prior Approval Required To De-reserve Forests' : Karnataka High Court Quashes Notification Releasing Forest Land

A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty said:

"The impugned order/notification dated 23^rd February 2017 is hereby quashed and set aside. We hold that the power under Section 28 of the said Act of 1963 (KARNATAKA FOREST ACT), cannot be exercised without obtaining the prior approval of the Central Government in accordance with Section 2 of the said Act of 1963."

It also held that even if the State Government purports to issue a notification under Section 28 of the said Act of 1963 without obtaining the prior approval of the Central Government in accordance with Section 2 of the said Act of 1980, such a notification shall be per se illegal.

The court also ordered "If any of the officers are responsible for allowing non-forest activities on the lands subject matter, needless to add that criminal law shall be set in motion by the State Government against the concerned officers by taking recourse to Section 3 (A) read with Section 3(B) of the said Act of 1980".

The bench reminded the State government of Article 48A of the Constitution of India, which is a part of the Directive Principles of State Policy, which enjoins the State to protect and improve the environment and to safeguard the forests and wildlife. Under clause (g) of Article 51A of the constitution, it is the fundamental duty of every citizen of India to protect and improve the forests.

It said "The officials of the State Government who did the exercise of initiating and completing the process under Section 28 of the said Act of 1963 were also duty bound to protect the forest. The minimum which was expected of them was that they will not indulge in de-reservation of forest in complete violation of Section 2 of the said Act of 1980."

It also noted that "There is a doctrine of Public Trust. The Apex Court has repeatedly held that the doctrine of Public Trust is applicable to India. The doctrine of Public Trust requires the State to ensure that forests are protected."

Case Background:

By a notification issued on 24^th June 1920 in exercise of the powers under the Mysuru Forest Regulation, 1900 a State Forest was declared in respect of the land subject matter of the petition. The notification declared that the area of 6742 acres and 33 guntas more particularly described therein known as Kudi block shall be deemed to be a 'State Forest' within the meaning of the said Regulation.

By a notification dated 30th April 1926, an area of 3016 acres and 16 guntas was declared as a State Forest under the said Regulation.

The state claimed that on May 2, 1961 an area of 19 acres and 20 guntas covered by the aforesaid notification was purportedly released for rehabilitation purposes. As per the impugned notification of 2017, it is recorded that between the years 1959 to 1969, several orders were issued by the State Government for de-notification of forests, but the process was not completed. Therefore, the said order purports to release certain forest lands mentioned therein from reserved forest.

Though the said notification dated 23rd February 2017 refers to Section 2 of the said Act of 1980, it ignores the mandatory requirement of obtaining prior approval of the Central Government.

The petition filed by GIREESH ACHAR challenged the 2017 notification and sought a direction to declare Section 28 of the said Act of 1963, as ultra vires and unconstitutional in view of its repugnancy with Section 2 of the said Act of 1980. There is also a prayer for initiating proceedings under Section 3A and 3B of the said Act of 1980 against those who are responsible for violation of Section 2 of the said Act of 1980.

Submissions of the Central Government:

It was contended that Section 28 of Karnataka Forest Act of 1963 has ceased to be effective after the enactment of the said Act of 1980 and in view of the interim order of the Apex Court dated 12th December 1996 in Writ Petition No.202 of 1995.

State government opposed the petition :

It was pleaded that in the year 1958-59, a decision was taken to rehabilitate the project affected families in the forest lands and accordingly, the total extent of 260 acres out of the State Forest, was released to the Revenue Department. The order of release was not published in the official gazette. Relying on the Forest (Conservation) Act, 1980, it was stated that prior approval was not required as orders of diversion were issued by the State Government prior to the date on which the said Act of 1980 came into force. It was further claimed that the power was exercised under section 30 of the said Regulation in the years 1962 and 1964 for declaring that a portion of the lands declared as State Forest shall cease to be so. Therefore, the State Government prayed for dismissal of the petition.

Submission of Petitioners:

It was submitted that even assuming that Section 28 of the said Act of the Karnataka Fores Act 1963 is valid, the power of de-reservation of a reserved forest within the meaning of the said Act of 1963 can be exercised only in accordance with Section 2 of the said Act of 1980 and in this case, the power under Section 28 of the said Act of 1963 has been exercised admittedly without seeking a prior approval of the Central Government as required by Section 2 of the said Act of 1980.

Further, it was said "State Government cannot rely upon the earlier notifications issued in 1960s as Section 30 of the said Regulation conferred a power on the Government to release a part of the State Forest only by publishing a notification in official gazette. Admittedly, the said earlier notifications were not published in the official gazette." Reliance was placed on the judgments passed in the case of T.N.

Godavarman Thirumulkpad vs Union Of India & Others and and Nature Lovers Movement vs State of Kerala and others.

Court findings:

Going through the provisions of the Karnataka Forest Act 1963 and Forest (Conservation) Act, 1980, the Court said "The said Act of 1963 is a State Legislation and the said Act of 1980 is a subsequent Central Legislation. In fact, Section 2 of the said Act of 1980 starts with a non-obstante clause and it overrides the state laws.

It added "In view of clause (i) of Section 2 of the said Act of 1980, the power under Section 28 of the said Act of 1963 cannot be exercised without prior approval of the Central Government".

Secondly, it noted that in view of sub-section (1) of Section 23 of the said Act of 1963, any forest notified as a "State Forest" under the said Regulation shall be a reserved forest under the said Act of 1963.

It also observed that "Under Section 30 of the said Regulation, the power to release a State Forest could be exercised only by a notification in official gazette. Admittedly, that was not done. Hence, the status of the forest subject matter of the impugned notification as a reserved forest being a State Forest continued till the date of the impugned notification."

It added "While issuing the impugned notification, not only that the State Government has completely glossed over the requirement of Section 2 of the said Act of 1980, but the State Government has violated the directions contained in the case of T.N. Godavarman (supra) and the decision of the Apex Court in the case of Nature Lovers Movement (supra) rendered on 20th March, 2009."

It concluded by saying "In view of the clear legal position that no order under Section 28 of the said Act of 1963 can be passed without making a compliance with Section 2 of the said Act of 1980, the issue of repugnancy will not arise between the State enactment and the Central enactment as what will prevail is the provision of Section 2 of the said Act of 1980 as well the direction issued by the Apex Court in the aforesaid cases. Hence, the impugned notification deserves to be set aside."