This article is written by Ms Sankalpita Pal, from Symbiosis Law School, Pune. This article attempts an overview of the Forest Conservation Act, 1980.

Introduction

Forests are a vital asset to every nation as it regulates and impacts the local climate and temperature. Forests can be considered as the life support system on earth.  Indian Forests have been declining for a number of reasons over the past few decades since the British era. One of the main reasons is the fast economic development that has been taking place since colonial rule. Thus, for the sake of retention of the environment and maintenance of ecological balance. It is imperative that forests are conserved.

The first-ever legislation for forest management came up in 1865. The 1865 Act attempted to establish the Colonial State’s monopoly over forests as forests are considered to be a source of revenue. However, in 1868 a more comprehensive piece of legislation was chalked out. According to the 1868 legislation the Colonial government was empowered to replace valuable tracts of forests in order to build the Indian railways. After years of exploitation finally, after independence, the Indian Legislature enacted the Forest Conservation Act in1980.

The practice of Forest conservation is the planning and maintenance of forested areas for the sake of the balance in the environment and sustainable development for future generations. The Forest (Conservation) ordinance was promulgated by the President of India on 25th of October 1980. This article attempts to discuss the implications under the FCA, 1980.

Salient features of the Act

The Forest Conservation Act, 1980 has a few salient features. They are:

• Forests were transferred from the state list to the concurrent list under the Constitution. Thus, due to this shift, the Central Government was empowered to directly act in order to conserve forests. This Act ensures the conservation of forest grounds.
• This Act empowers State Governments to use forest area only for forestry purposes.
• Forest is treated as a national asset. Therefore, the state governments have to seek the central government’s approval if it plans to use the forest area for:

1. Reforestation.
2. Non-forestry purposes such as mining.  

• There are provisions under this Act which was drafted with the intent to reduce the rate of Deforestation. It causes an imbalance in nature and ecology. This, in turn, leads to the degradation of environmental quality.
• The act seeks to check the de-reservation of forests. Another important feature of this Act is that the Central Government’s prior approval is an absolute necessity when it comes to dereservation of reserved forest areas.
• The Act ensures that in order to stop forest dwellers from cutting trees, they must have full access to fuel, fodder, building material, wood etc at a subsidized rate.
• Compensatory afforestation is also one of the salient features of this Act as it promotes this practice throughout the statute.
• This Act seeks to modify working plans into environmentally sound and scientifically researched action plans. So, all kinds of risks and costs are minimised.
• This Act contains provisions that were drafted with the intent to protect standing Forests.
• The Act also seeks to spread awareness amongst organizations and the public at large about forest conservation and protection. The government is required to create an information base.
• This legislation is pretty short with only 5 sections. However, this legislation is significant enough because it is effective and has been somewhat successful in conserving forests.

Amendments made to FCA, 1980

The FCA, 1980 has undergone a number of amendments over the years. Major amendments were made in 2003 in which certain forest conservation rules were drafted. For example, subsequent to the 1988 amendment, the initial restriction placed on the powers of the state government with regard to the preservation of forests or use of forest land for non-forest purposes was shifted to the Central Government’s discretion. The Central Government has been given wider authority over the State Governments post the 1988 amendment of the FCA. 

The meaning of the phrase “non-forest purpose”  was more concretely defined. In 2003, an extensive set of rules was drafted in order to provide a regulatory procedure as to how the Central government’s approval is to be sought and when the need for approval doesn’t arise at all. The implications of the guidelines issued in 2003 will be discussed shortly in this article. In Bill No. 139 of 2017, the insertion of New sections 3C and 3D was proposed to the Lok Sabha. Section 3C deals with the Protections of rights of inhabitants of hill areas over forests and Section 3D states that in certain cases the Approval of Central Government is not required for deforestation. An amendment was also proposed in 2019 as well.

Judicial pronouncements and general clarifications

There are various Judicial pronouncements with regard to the general clarifications regarding the implications of provisions under this Act. Few notable judgments have been listed down below.

In the Social Action For Forest and Environment (SAFE) v. Union of India, the National Green Tribunal accepted the contention of the State via an affidavit filed by the Ministry of Environment, Forest and Climate change. The contention was the construction of the wall within Raja Ji National Park.  The main issue raised was whether such a construction was in accordance with the provisions of the FCA, 1980 or not. The NGT decided that the approved management plan lies within the meaning of ‘work relating to or ancillary to conservation development and management of forest and wildlife’. Thus, such activity doesn’t necessarily require any forest clearance as under Section 2 of the Act.

An important question arose as to whether central government’s prior approval is essential when the license has already been granted for mining. In connection to the same another issue arose was whether approval is required while an existing license is getting renewed. Both these issues were resolved in the Landmark case of, T.N. Godavarman Thirumulpad etc. v. UOI & Ors. . In this case, it was held that all provisions of FCA, 1980 applies to all types of forests irrespective of the nature of ownership or any other classification thereof. The dictionary meaning of forest has to be referred to while keeping the statutory implications in view. Thus, the Central Government’s approval is required in the above two cases as well. Since the forest is under concurrent list the Central government will intervene in every step.

In Rural Litigation and Entitlement Kendra, Dehradun v. State of UP, the Apex Court held that if its a case of first grant or even renewal Section 2 of the  FCA, 1980 is a condition precedent. Further, in the famous case of M C Mehta v. Union of India (2004), the Court re-emphasized that renewal is to be treated as a fresh grant. Therefore, a mining project cannot commence without prior permission of the Government of India.

In State of Kerala v. Sunil Kumar, the SC reiterated that if a State Government didn’t want to lease a part of the forest land, seeking prior approval is out of the question.

In A Chowgle and Co. Ltd v. Goa foundation the Apex Court held that in order for the diversion of forest land for some other purpose, Central Government approval is required before the execution of such a  purpose in accordance with Section 2 of the FCA. Any lease obtained without approval is null and void. Another important issue resolved was that the Court also held that the Central Government’s approval cannot be applied retrospectively, this means that the approval cannot be a ratifying act. 

In Nature Lovers Movement v. State of Kerala and Ors., the Kerala Government tried to grant a lease to unauthorised encroachers of forest land without obtaining Central Government’s approval. The nature of Section 2 was questioned as to whether it is prospective or retrospective in nature. The Court stated that under no circumstances will any state government be permitted the use of forest area for non-forest purposes.

In Upendra Jha v. State of Bihar, the Patna High Court observed that a state government cannot allow the de-reservation of a reserved forest without following the mandate under Section 2 of the FCA. 

Section 3A of FCA, 1980 provides for the penalty for the violation of mandate under Section 2. Section 3A lays down that anyone violating or abetting the violation of Section 2 will face imprisonment for up to 15 days. Section 3 confers upon Central government the power to constitute an advisory committee that will advise and assist the government regarding the grant of approval under section 2 as well as other forest-related matters.

In Muklesh Ali v. the State of Assam, the Apex Court clarified that the directions issued by the Apex Court itself for disciplinary and criminal proceedings against forest officers who commit a breach of duty are prospective in nature. Section 4 of the FCA, 1980 confers powers upon the Central Government to make rules in order to facilitate the implementation of the provisions under this Act.   

Compensatory afforestation

As per guidelines issued under the FCA, 1980 Compensatory Afforestation is one of the most important features of this Act and the Central Government has to keep in view the implementation of reforestation while approving proposals for de-reservation or diversion.

It is mandated under the FCA, 1980 that forest land can be diverted for infrastructural development activities like mining, road construction, railway lines. Since this kind of development requires the clearance of forest areas, the law mandated compensatory afforestation in order to make up for the loss of biodiversity. The Statute stipulates that compensatory afforestation has to be carried out on non-forest land equal to the forest land being diverted.

Concept of Net Present Value (NPV)

In the above-mentioned case of T.N. Godavarman Thirumulpad v. Union of India and Ors., the concept of ‘Net Present Value’ was introduced. This concept was applied in the context of forestry.  In this case, it was determined that since forestry is a public project and the benefit arising out of it can be treated as ‘cost incurred’. The reason behind such a determination was the fact that the development of forest areas have a long gestation period of about 40-50 years. This time period will also face cost cycles every year depending upon inflation, deflation, rate of interest, stagflation, return interest rate etc. Thus, environmental outputs from forests shall be treated as public goods. However, in recent years a problem with the valuation of such environmental outputs has arisen. 

The main problem arising is the allocation of fixed costs. Fixed cost is important for valuation as it contributes to total revenue. However, when it comes to the valuation of intangible outputs such as environmental cost-benefit there is no known market for the same. Thus, the concept of Net Present Value (NPV) came up.

NPV is a method by which future expenditures (costs) and benefit are levelised. Such a levelisation of costs is done in order to account for the time value of money. 

Few categories of projects receive an exemption on the NPV such as Schools, Hospitals, Children’s playground of non-commercial nature, Relocation of villages from National Parks/Sanctuaries to alternate forest land, Collection of boulders/silts from the river belts in the forest area, Laying of underground optical fibre cable, Field firing range by the Defence Ministry not involving felling of trees and no likelihood of destruction of forests etc. Some categories enjoy complete exemption and the rest receive a percentage of exemption.    

General approval under FCA- development of critical public and strategic defence infrastructure

The Provisions under Section 2 of the Forest (Conservation) Act, 1980 is an absolute mandate and the highlight of this Act itself. 

The Forest (Conservation) Rules, 2003, on the other hand, provides regulatory procedures for prior approval of the Central Government required to be obtained for diversion of forest land for non-forest purposes. According to the rules and the subsequent amendments, the Central Government is empowered to grant General Approvals for diversion of forest area for specific purposes. Such a purpose can range from critical public utility services to strategic defence infrastructure purposes.

Public Initiatives for critical development need general approval. Initiatives like School, hospital, Minor irrigation canal, Electric and telecommunication lines, Power substations etc require general approval. All kinds of exceptions will be discussed in the later half of this article. 

Transfer/re-diversion

When forest land is diverted for non-forest purposes prior approval of the Central Government under FCA is required.  The User Agency is required to provide all details of any project for which a forest clearance is required. However, in cases of transfer or rediversion of an original User Agency to a new User agency certain procedures need to be followed:

1. The original User Agency is required to prepare an application form and submit it to the concerned State/Union Territory Government. An undertaking from the new user agency must also be submitted. 
2. The wording of the undertaking must be in such a manner that the new user agency admits to abide by all conditions that were mandated upon the original user agency for the diversion of the forest grounds. 
3. The Transfer of User Agency can be considered by the Central Government for the same use and on the same conditions. 
4. A certain transfer fee shall be levied by the government in order to discourage the growth of middlemen while processing applications. 

These are the main excerpts from the procedure established by the 2003 rules. 

Change of the name of User Agency without any change in shareholding pattern 

The central government has a wide responsibility to the extent of giving approval even when there is a change in the name of a user agency. As long as there is no change in the shareholding pattern. The State Government, on the other hand, is required to submit a few documents within 3 months in accordance with the guidelines under the FCA Rules 2003.

Transfer of Zudpi lands

When Zudpi Jungle lands are diverted to be used for Public purposes prior to 12 December 1996, no transfer of forest land must take place under any circumstances without prior approval of the State government. 

Survey and investigation

Survey and Investigations for mining projects which require forest area clearance or deforestation, Central Government’s approval for the same is mandatory. 

In order to undertake investigation and reconnaissance surveys on forest lands for development projects like hydro-electric projects or the establishment of wind energy mills etc, the Forest Conservation Act will not affect such projects as long as these surveys do not involve any kind of deforestation and only require the clearing of bushes or loping of branches in order to facilitate sighting. However, the State Forest Department’s permit is essential in order to carry out such survey expeditions under the Indian Forest Act, 1927.

It has been made clear that the State Forest Department’s permit is not a representation for or replacement of Central Government’s approval as under Section 2 of the FCA, 1980 for the diversion of forest land.

Mining projects

Mining Projects involve the extraction of minerals from beneath the Earth’s surface. Such activity is site-specific and is regulated under various Statutes such as Mines and Mineral (Development and Regulation) Act, 1957. Mining projects in forest areas are granted via mining leases under the Coal Bearing Area Act, 1957. All kinds of mining are included such as opencast mining, underground mining, removal of boulders, stones, sand etc. all these activities are listed under non-forestry activity and thus, requires the prior approval of the Central Government as mandated under the Forest Conservation Act, 1980.

Wind energy

If a proposal is made for the establishment of wind energy farms or windmills which require forest area clearance and includes the facilitation of transmission lines, corridors between successive windmills, earthing pits and roads including provision for repose, breast walls etc., then also the Central government’s approval is required. While the proposal is made, full information on alternative options of non forest land, cost-benefit analysis, and other details on employment, economic viability etc has to be provided as per the extent of the guidelines under the Forest Conservation rules 2003.

As discussed above any reconnaissance surveys of forest area for the planning of wind energy farms or windmills will not require any prior approval under the FCA, 1980. The only condition for such an exemption is that if the windmill project and the reconnaissance survey doesn’t require the felling of trees. Only loping of tree branches and clearing of small bushes are allowed for the purpose of clear visibility. 

Irrigation & hydro-electric projects, including Catchment Area Treatment (CAT) plan

When forest lands fall within the purview of an irrigation / hydroelectric project, once again the provisions of the FCA, 1980 are attracted. 

The long gestation periods of such projects need to be kept in view before seeking the approval of the Central Government under the Act. any reconnaissance survey done will not require the Central government’s approval. If the diversion of forest land requires an extensive forest area clearance then the prior approval under Section 2 is essential. All the details with regard to the intimation of the extent of forest land required, the estimated time schedule for execution, the phase by phase processing and execution of the management plan etc. has to be informed to the Central government while seeking approval itself.  

Most importantly, the scheme for compensatory afforestation has to be submitted along with the proposal of the project plan. The Regional Empowered Committee is empowered to examine the implications under such proposals. This committee sets up a time frame for the transfer mutation of non-forest land. It also regulates the funds required for the creation of Compensatory Afforestation. 

The Catchment Area Treatment Plan is an important and essential plan. This plan ensures the enhancement maintenance of ecological health and balance. Irrigation or hydroelectric projects depend upon biological & engineering measures such as the conservation of soil & moisture and water management regime. Therefore, a catchment area plan needs to be reflected while seeking the government’s approval.

Infrastructural projects including roads, railway lines, border roads, residential/building construction

Infrastructure projects which require diversion of forest land will have to seek approval as under the FCA, 1980. About 14 categories fall under what kind of developmental projects require a permit under this Act.

Linear projects proposals such as roads, railway lines, transmission lines, etc. are required to undergo a comprehensive assessment in order to weigh the environmental risks involved and the consequences of the removal of forest area. After a satisfactory assessment of the impact of such linear projects, it is found that there are grave environmental risks that cannot be corrected through compensatory afforestation then the Central Government is at the liberty to reject the user agency’s want and disallow the starting of such projects. No other work on forest land is to be taken up till the State Government or UT government orders for diversion after obtaining prior approval as according to the provisions of the FCA, 1980. 

The guidelines provided in 2003 was mainly to facilitate a phased preparation and processing of proposals. When a linear project is set to start, a Forest Division or State-wise subject map indicating alignment of the entire project must be submitted. The map must highlight the portions of the project passing through forest land, therefore, requiring clearance. The management plan of the project must also include a write up on the salient features of the project.

In cases of creation of Border Security related infrastructures such as Border Roads, Fencing, Border Outposts,  Surveillance, Floodlights and Power Infrastructure etc. if a forest clearance is required then also the central government has the responsibility to check the necessity of the situation and then grant approval for such projects. 

Projects in/near protected areas including Zoos

Protected areas

Protected areas such as National Parks or Wildlife Sanctuaries are to be notified and managed under the Wildlife (Protection) Act, 1972. However, the FCA also has a few implications.

In case a proposal is made that involves non-forest activities in and around a national park or other protected areas, then a permit by the Standing Committee of National Board for Wildlife (NBWL) in accordance with the provisions under Wildlife (Protection) Act, 1972 is required. However, such a permit is not enough the  Mandate under Section 2 of the FCA, 1980 has to be followed and the Central Government’s prior approval needs to be obtained in order to get started with the proposal.

Zoo and rescue centres

As for the Zoo or Rescue Centers, if such centres need to be established for the protection and breeding of animals then also the Central Government’s prior approval is required as under the FCA, 1980. A zoo is a place where wild animals are kept for exhibition to the public and thus, requires diversion of forest land. Therefore, its establishment if subjected to the provisions of the FCA, 1980. However, it is to be noted that the establishment of a rescue centre inside the forest reaches is purely the State Government’s discretion provided that the rescue centres are only for rehabilitation and recapitulation of animals and is not open to public display for commercial purposes. Unlike a zoo which is built for enjoyment which is treated as a non-forest activity, rescue centres have a different purpose and are not subject to Section 2 of the FCA, 1980.

Activities done within the walls of a Zoo will not be subjected to the provisions of the Forest (Conservation) Act, as long as it follows the management plan and doesn’t carry out illegal activities.

Problems in implementation of the FCA, 1980

Just like every other statute, there are a few problems that arise during the implementation of the FCA.  

1. It is debated that this Act has merely facilitated the shift of power of approval from the State government to the central government. The scope of its objective is limited to just conserving the remaining forests. The measures under this Statute doesn’t really account for rejuvenation of the lost forest.
2. According to the FCA, 1980 only a centralised authority is obligated to grant approval for forest clearance. The developers seeking approval and state authorities do not seemingly have any as such responsibility to protect forests. 
3. It is also a well-known fact that political demands and undue pressure contribute to the ineffectiveness of this Statute. 
4. Another problem with regard to effective implementation of this legislation is the lack of integration of this statute with other relevant forest legislation, for example, the Indian Forest Act, 1927. The Statute also misses out on the implications under sectoral legislation like laws on mining projects and other infrastructural industries.
5. An unresponsive bureaucracy also partially contributes to the ineffectiveness of this Act. 

Conclusion

The FCA, 1980 is short and put together. It has undergone various amendments over time. The 2003 rules are a supplement to the main Act. However, it must be noted that its implementation is still problematic. A number of notable judgments reveal that FCA, 1980 has been a success to some extent when it comes to the judicial interpretation of Central governments approval. Another positive point that was observed throughout was the involvement of the central government and the fact that the forest area is treated as a national asset. The guidelines placed by the FCA, 1980 are also crisp and clear. The vacuum in legislation still exists as discussed above.

The FCA, 1980 was drafted by keeping in view the need for Infrastructural development. However, only exceptional public initiatives will be permitted to flourish in forest areas. The position of the law is clear that forest areas cannot be used for Non- forest purposes. In conclusion, it can be said that the concept of compensatory afforestation as introduced in the FCA, 1980 is an important practice that ensures sustainable development. It is one of the salient features of this Act. The Indian legislation still needs to buck up and check the implementation of the law and strict penalties must be imposed.

References

1.  http://ifs.nic.in/Dynamic/book/page7.pdf 
2. https://parivesh.nic.in/writereaddata/FC/HANDBOOK_GUIDELINES/HANDBOOK_GUIDELINES18_03_2019.pdf  

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: