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SUPREME COURT OF INDIA
YK. SABHARWAL, ARIJIT PASAYAT AND S.H. KAPADIA, JJ.
T.N. GODAVARMAN THIRUMULPAD (87*) - Petitioner
Versus
UNION OF INDIA AND OTHERS - Respondents
IAs Nos. 826 and 566 in Writ Petition (C) No. 202 of 1995t with IAs Nos. 932,
819 - 21,955,958,985, 1001 - 01a, 1013 - 14, 1016 - 19, 1046 - 47, 1135 - 37, 1164. 1180 - 83,1196,1208 - 09,1222 - 25,1229,1233,1248 - 49, 1253, 1301 - 04, 131216, 1318 and 1319 in WP (C) No. 202 of 1995,
Decided on September 26, 2005
Advocates appeared
G.E. Vahanvati, Solicitor General, A. Sharan and B. Datta, Additional Solicitor d Generals, Harish N. Salve, V.V. Lalit (Amicus Curiae), KK. Venugopal, Dr. Rajeev Dhavan, VA. Mohta, Altaf Ahmed, Dr. A.M. Singhvi, Jayant Bhushan, Vivek Tankha, K Parasaran, Shekhar Naphade, Dr. R.G. Padia, Ms Shobha Dikshit, Anoop G. Chaudhari, Ravi Shankar Prasad and A.T.M. Rangaramanujam, Senior Advocates [Sidhartha Choudhary (Amicus Curiae), C. Mukhopadhyay, Ms Lavleen, Ms Binu Tamta, Aruneshwar Gupta, Additional Advocate General for the State of Rajasthan, Naveen Kr. Singh, Ms Shivangi, Shivasubramaniam, S. Sukumaran, A. Deb Kumar, e M.P. Singh, Ramesh Babu MR, A.D.N. Rao, B.V Balaram Das, Mukesh K Giri, S.C. Patodia, Ms Rachna Srivastava, Additional Advocate General for the State of Vttaranchal, Ms Sangeeta Kumar, Vijay Kumar, Ashwani Garg, S.K Kulkarni, M. Gireesh Kumar, Prashant Kumar, J.T. Gilda, Manish Pitale, C.S. Ashri, Gurukrishna Kumar, K Rajeev, Ms Tasneem Ahmadi, Rajesh Rai, Ajay Sharma, Ajay Majithia, Manish Jain, Dr. Kailash Chand, Bharat Sangal, B. Parthasarthi, John C. Rose, Sanjib Sen, Manish Pratap Singh Chauhan, Ms Sarla Chandra, Sanjeev Kumar, f Prateek Jalan, Paras Kuhad, Ms Sushmita Banerjee, Ms Minakshi Sharma, Tarun Johri, Sunil Dogra, Ms Bina Madhavan, S.V.K Sagar, S. Ravi Shankar, V Balachandran, Rajiv Patil, Shivaji M. Jadhav, Himanshu Gupta, Brij Kishor Sah, Raj Kr. Mehta, M. Sarada, Ajit Kr. Sinha, J.P. Dabral in person, Ms Rekha Pandey, D.S. Mahra, Himinder Lal, Ajit Pudussery, K Vijayan, Badri Prasad Singh, Ms Suchitra A. Chitale, Ms Hemantika Wahi, Ms Sadhna Sandhu, Ejaz Maqbool, P.V Yogeshwaran, Rakesh K Sharma, Himanshu Shekhar, Naresh K Sharma, 9 A.P. Mayee, P.K Manohar, Sewa Ram, KR. Sasiprabhu, M.KS. Menon, Ms G. Indira, Maninder Singh, Ms Pratibha M. Singh, Angad Mirdha, Kirtiman Singh, Saurabh Mishra, S.W.A. Qadri, Kamlendra Mishra, Rajeev Kr. Dubey, Ms Vimla Sinha, Pradeep Misra, Mohd. Saud, J.K Bhatia, Ajay Siwach, Manjit Singh, Ms Vivekta Singh, Harikesh Singh, T.V George, Ms Krishna Sarma, VK Sidharthan, Riku Sarma, Ms Suparna Srivastava, Rahul Srivastava, Rajesh Srivastava, Prakash Shrivastava, B.K Prasad, S.N. Terdal, T.L.V Iyer, R.K Rathore, Additional h Advocate General for the State of Punjab, S. Krishnaraj, Arun Kr. Sinha, Bimal Roy
A Environment (Protection) Act, 1986, Section 3(3) - Environment Protection - - Notification of MOEF, D/d. 23-4-2004, Cls, 2-2, 6-4, 6-6 - Compensatory Afforestation Fund Management and Planning Authority (CAMPA) - Constitution of Executive Board - Having regard to the nature of the functions of the Executive Body of the CAMPA, there should be more involvement of NGOs by including in the Executive Body, the conservationists, environmentalists, economists and experts in forestry. - The Executive Body deserves to be expanded as, presently, only one professional ecologist was its member- Directions issued that clause 2.2 shall be suitably amended so as to include two more environmentalists, one of whom may be expert in the field of forest and the other in the field of forest economy development( paras 20 and 21 )
B. Words and Phrases - Net Present Value (NPV) - Meaning of - The NPV is the present value (PV) of net cash flow from a project, discounted by the cost of capital-
Benefit received today is worth more than that received later-The benefit received today is in fact 'cost incurred' today-Time value of the cash inflow/outflow is important in investment appraisal-NPV is a method by which future expenditures (costs) and benefit are levelised in order to account for the time value of money. The object behind NPV is to levelise costs. ( paras 27 and 28 )
C. Environment (Protection) Act, 1986, Section 3(3) - Environment Protection - Notification of MOEF, dated 23-4-2004, Clause 6-4 - Whether unconstitutional- Contention that the notification constituting CAMPA is unconstitutional as it does not stipulate that the amounts collected on behalf of Government shall go to the relevant consolidation fund or to public fund - The body set up or fund generated to protect ecology and provide for regeneration cannot in constitutional scheme of things be considered and treated as a fund under Article 266 or Article 283 or Article 284 of the Constitution of India. ( paras 61 to 63 )
D. Forest (Conservation) Act, 1980, Section 2 - Constitution of India, Articles 266, 283, 110 and 199 - The constitution of Compensatory Afforestation Fund Management and Planning Authority (CAMPA) -If it becomes necessary for economic development to use the same for non-forest purpose, then before grant of permission for diversion of forest land, there should be some scheme whereunder loss occurring due to such diversion can be made up by adopting both short term measures as well as long term measures one of it being a regeneration programme-The natural resources like forests are in trust with the present generation- Various statutes have been enacted by the Parliament-Keeping in view the letter and spirit of those statutes and constitutional provisions, the legality of CAMPA and the power to issue directions for natural regeneration and utilisation of funds is required to be appreciated-The body set up or fund generated to protect ecology and provide for regeneration cannot in constitutional scheme of things be considered and treated as a fund under Article 266 or Article 283 or Article 284 of the Constitution of India-When seen in this light, neither Article 110 nor Article 199 and/or Article 294 or 195 would have any application- sThe Net Present Value that is charged/collected from the user of agency is a charge or a fee which falls within Entry 47 read with Entry 20 of List III of Seventh Schedule to the Constitution - The Fund set up is a part "of economic and social planning" which comes within Entry 20 of List III - The charge which is levied for that purpose, comes under Entry 47 of List III ( paras 63 and 68 )
E. Forest (Conservation) Act, 1980, Section 2 - Environment (Protection) Act, 1986, Section 3(3) - Forest - Environment Protection - Permission to use forest for non-forest purpose -The object of amount of NPV is to utilise the fund to conserve the ecology without in any manner affecting proprietary rights of the State Government over the land, timber or the minerals.- The Notification dated 23rd April, 2004 does not deprive any State of any land timber or mineral and, therefore, there is no question of disbursement of any amount to the State.- The damage to environment is a damage to the country's assets as a whole-. Ecology knows no boundaries.- It can have impact on the climate.- The principles and parameters for valuation of the damage have to be evolved also keeping in view the likely impact of activities on future generation. amounts under CAMPA have to be used for regeneration of eco-system and the same cannot be handed over to any State Government on the premise that ecology is not property of any State but belongs to all being a gift of nature for entire nation. ( paras 70, 80 and 92 )
Doctrine looks beyond the need of the present generation and also suggests that certain resources are invested with a special nature- we are trustees of natural resources which belong to all including future generation as well-The public trust doctrine has to be used to protect the right of this as also future generation. ( PARA 91 )
G. Environment (Protection) Act, 1986, Section 3 - Forest (Conservation) Act, 1980, Section 2 - Use of forest land for non-forest purpose - The amounts shall have to be updated from time to time after every three years-. For grant of approval under Section 2 of the FC Act besides payment of NPV as being presently calculated by MOEF, the user agencies shall have to give undertakings to pay the remaining amount, if any, pending finalisation of determination by the experts.
H. Environment (Protection) Act, 1986, Section 3 - Forest (Conservation) Act, 1980, Section 2 - Environment Protection- Exemption-Contention of the Federation of Indian Mineral Industries about calculation of NPV at the rate of 10 per cent for major mineral and 5 per cent for minor mineral not accepted.- The question is not of the value of the mineral or it being high value and low volume and mineral of high volume and low value, the question is about use of the forest areas and need to protect the environments -A larger public interest has to be the guiding principle and not the present interest of user agency only. ( paras 96 and 97 )
Judgment
Y.K. SABHARWAL, J. - Natural resources are the assets of the entire nation. It is the obligation of all concerned, including the Union Government and State Governments to conserve and not waste these resources. Article 48 - A of the Constitution requires that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Under Article 51 - A, it is the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.
2. In the present case, the question is about conservation, preservation and protection of forests and the ecology. When forest land is used for non - forest purposes, what measures are required to be taken to compensate for loss of forest land and to compensate for the effect on the ecology, is the IT: - main question under consideration.
3. Forests are a vital component to sustain the life support system on the earth. Forests in India have been dwindling over the years for a number of reasons, one of it being the need to use forest area for development activities including economic development. Undoubtedly, in any nation development is also necessary but it has to be consistent with protection of environments and not at the cost of degradation of environments. Any programme, policy or vision for overall development has to evolve a systemic approach so as to balance economic development and environmental protection. Both have to go hand in hand. In the ultimate analysis, economic development at the cost of degradation of environments and depletion of forest cover would not be a long - lasting. Such development would be counterproductive. Therefore, there is an absolute need to take all precautionary measures when forest lands are sought to be directed for non - forest use.
4. The point in issue is whether before diversion of forest land for non - forest purposes and consequential loss of benefits accruing from the forests should not the user agency of such land be required to compensate for b the diversion. If so, should not the user agency be required to make payment of net present value (NPY) of such diverted land so as to utilise the amounts so received for getting back in the long run the benefits which are lost by such diversion? What guidelines should be issued for determination of NPY? Should guidelines apply uniformly to all? How to calculate NPY? Should some projects be exempted from payment of NPY? These are the main c aspects which require examination and determination in the backdrop of various legislations which we would presently notice.
5. The legislature, to provide for conservation of forests and for matters connected therewith or ancillary or incidental thereto enacted the Forest (Conservation) Act, 1980 (for short "the FC Act"). It postulates that no State Government or other authority shall make, except with the prior approval of d the Central Government, any order directing that any forest land or any portion thereof may be used for any non - forest purpose. The Central Government under the FC Act has been empowered to constitute a committee
to advise it with regard to grant of approval. Under Section 2 of the Act the question of use of any forest land for non - forest purposes and any other matter connected with the conservation of forest may be referred to such a e committee by the Central Government under the FC Act. The contravention of any of the provisions of Section 2 has been made an offence.
6. Noticing the decline in environment quality due to increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to the life support system, the Environment (Protection) Act, 1986 (for short "the EP Act") has been enacted. It has been noted in the Statement of Objects and Reasons th
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