Point of law: Forest Land - doctrine of Public Trust is applicable to India. The doctrine of Public Trust requires the State to ensure that forests are protected

ORDER :

OVERVIEW:

1. Seventeen years after the Forest (Conservation) Act, 1980 (for short ‘the said Act of 1980’) came into force, the Government of Karnataka has passed an order in purported exercise of the powers under Section 28 of the Karnataka Forest Act, 1963 and has permitted use of a reserved forest for non-forest purpose without obtaining prior approval of the Central Government in accordance with Section 2 of the said Act of 1980. The State Government has not followed the direction of the Apex Court in paragraph 5 of its decision in the case of T.N. Godavarman Thirumulkpad vs. Union of India and Others, (1997) 2 SCC 267.

FACTS:

2. With a view to appreciate the factual aspects, a brief reference to the averments made in the petition will be necessary.

3. Reliance is placed on a notification issued on 24th June 1920 in exercise of the powers under the Mysuru Forest Regulation, 1900 (for short ‘the said Regulation’) by which a State Forest was declared in respect of the land subject matter of this writ petition. The said notification dated 24th June 1920 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. It is pointed out that the case of the State Government is that on 2nd May 1961, an area of 19 acres and 20 guntas covered by the aforesaid notification was purportedly released for rehabilitation purposes. The said Act of 1963 came into force on 1st June 1969 and the said Act of 1980 came into force on 25th October 1980. Reliance is placed in the petition on the letter dated 10th March 2004 issued by the Assistant Inspector General of Forests of the Government of India to all the Secretaries of the Forest Departments of the States and Union Territories. The said letter refers to the order of the Apex Court dated 14th December 2000 in W.P. No. 202/1995 (K.M. Chinnappa vs. Union of India and Others) restraining all States from removing of certain trees from National Parks, sanctuaries and Forests. It also refers to the order dated 13th November 2000 passed by the Apex Court in W.P. No. 337/1995 by which it was directed that pending further orders, no de-reservation of forest/National Park/Sanctuaries shall be effected.

4. Now, we come to the impugned Annexure-N which is a notification dated 23rd February 2017. Annexure-N is purportedly issued in exercise of the powers under Section 28 of the said Act of 1963. It records 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 (Annexure-N) refers to Section 2 of the said Act of 1980, it ignores the mandatory requirement of obtaining prior approval of the Central Government.

5. The first prayer in the petition is for challenging Annexure-N dated 23rd February 2017. The second prayer is for declaring 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.

STAND OF THE RESPONDENTS:

6. There is a statement of objections filed by the first respondent (the Government of India). In paragraph 19, it is specifically contended that Section 28 of the said 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.

7. A statement of objection has been filed by the State Government.