A 3-judge bench of the Supreme Court of India in Narinder Singh & Ors. v. Divesh Bhutani & Ors. (Civil Appeal No. 10294 of 2013) has clarified the scope of the term “forests” under Section 2 of the Forest (Conservation) Act, 1980 (“1980 Act”) and reiterated that Section 2 supersedes all State and Central laws, as applicable to a State. The Supreme Court dealt with the interplay between special orders issued under Section 4 of the state legislation - Punjab Land Preservation Act, 1900 (“PLPA”), and the central legislations – the Indian Forest Act, 1927 (“1927 Act”) and the 1980 Act. It held that scope of Section 2 is wide and includes forest lands covered by PLPA as well as the 1927 Act.

Background

Section 2 of the 1980 Act restricts the use of forest lands for “non-forest purposes” and states that no State Government shall direct the use of such land for non-forest activities without the “prior approval” of the Central Government. Section 4 of the PLPA enables the State Government to restrict, regulate or prohibit certain activities on lands that are brought under the purview of this provision, by way of a general or special order. The Supreme Court was dealing with a batch of civil appeals/special leave petitions, where the broad issue raised by the appellants/petitioners was - whether land covered under a special order issued by the State Government under Section 4 of the PLPA is a “forest land” within the meaning of the 1980 Act. 

Key Highlights  

Meaning of the term “forests” under the 1980 Act:  

The Court while placing reliance on the T.N. Godavaraman Thirumulkpad v Union of India, (1997) 2 SCC 267 case charted the meaning of “forests” under Section 2 of 1980 Act to include three categories:

(a) statutorily recognised forests including reserved or protected forests which are covered under Section 2(i);

(b) any “forest” as defined in accordance with dictionary sense, which is covered under Section 2(ii) to (iv); and

(c) an area which is actually classified as a forest in government records.

While the ambit of (a) and (c) is quite clear, the ambit of (b) was examined and interpreted. The Court noted that under Section 2(ii) to (iv) of the 1980 Act, the legislature has used the term “any forest” with the intent to bring all the forests, whether covered under 1927 Act or not, within the scope of 1980 Act. The dictionary meaning of the term was considered, such that a forest land ought to comprise of “a large or extensive tract having dense growth of trees, thickets, mangroves etc…. and underbrush or plants resembling a forest in profusion or lushness.” Any isolated and small parcel of land with trees or thickets will not be covered. This determination under Section 2(ii) to (iv) would require factual analysis – to be decided on a case-to-case basis.

The Court, in context to (c) above emphasised the importance of following due process by the government to enter a land into the government record as ‘forest land’ and said that government records include land or revenue records as well as the forest department records, where the latter is “custodian of forests.” 

Central Government’s power to regulate the use of forest land under 1980 Act supersedes all state and central legislations applicable to the forest land in a State

The Supreme Court analysed the scope of “forest” under the 1927 Act and ruled that the 1980 Act is not in its repeal but supplements and complements the provisions of 1927 Act. It was emphasised that the 1927 Act is a pre-constitutional legislation. Given the developments over the past four decades, the Central government thought it fit to enact the 1980 Act to prevent large-scale deforestation.

While the 1927 Act provides for extensive provisions where the State Government has power to declare a forest as reserved or protected and lays down process to do so under Section 20 and 29, respectively, it also lays down provisions under Sections 35 to 37 vesting power to acquire private forest lands. 

Section 2 of the 1980 Act overrides all laws applicable to a particular State, including the laws of that State as well as the relevant Central laws applicable to it. The Supreme Court noted that Section 2(ii) to (iv) of the 1980 Act apply to any forest land which may not necessarily be a reserved/ protected/ private forest under the 1927 Act or declared as forest land any other law relating to forests in the relevant state. 

Prior approval of Central Government for “forest” land is mandatory under Section 2 of the 1980 Act That said, the Supreme Court clarified that there is no bar under the 1980 Act on the use of any forest land for non-forest purposes, as long as prior approval from the Central Government is obtained. It is noted that the Central Government is required to adopt scientific and consistent yardsticks in exercise of its power and maintain balance between development work and environmental effects. 

It follows that the owner of a private forest land under Section 2 can use it for non-forest purposes as long as it obtains prior approval under the 1980 Act. The Court also noted that Section 2(i) of the 1980 Act also requires that no reserved or declared forest should be divested of its status by the State Government, without prior approval of the Central Government. In effect, the power of State Government under Section 27 of the 1927 Act to declare that a particular land ceases to be a reserved forest is now predicated on mandatory prior approval of the Central Government.

Mandatory requirements to be followed by State Governments for declaring lands as “forest”

Finally, the Court held that the PLPA was inter alia enacted for preventing the erosion of soil. The scheme of PLPA is such that (a) Section 3 envisages the issuance of a general notification for an area which might be prone to soil erosion and (b) Section 4 provides power to issue special order for the prevention of deforestation of a forest area. 

The Court concluded in view of the scope of 1980 Act that a land in respect of the which the State Government has issued a special order under Section 4 ought to have (a) all the trappings of forest in terms of Section 2(ii) to (iv) of the 1980 Act, and (b) prior approval of the Central Government in accordance with the Section 2 of the 1980 Act. It is pertinent to note that the Court refrained from adjudicating on lands covered by special orders under Section 5 of PLPA, which would be adjudicated on a case-to-case basis. 

Conclusion

The present judgement has further interpreted and expanded the scope of Section 2 of 1980 Act, which is a key legislation impacting economic activities and balancing development with ecological protection and preservation. The Central Government has been held to be the primary authority for any land use conversion henceforth. This judgment, further to the definition of forests in Godavarman case, provided further clarity on the fact that not all thickets and trees on land are forests, but has not particularly clarified what the “vast” expanse should be. With the ongoing legislative consultations on amendments to the 1980 Act and the Forest Rights Act, 2006 – it remains to be seen how the Central Government balances ‘ease of doing business’ with its ‘sustainable development’ commitments.