Court Judgement in WP 202/95 Dt 12/12/96
THE COURT OF INDIA
I.A. No. 424 in
PETITION (CIVIL) NO. 202 OF 1995
CIVIL ORIGINAL JURISDICTION
I.A. No. 424 in
WRIT PETITION (CIVIL) NO. 202 OF 1995
the matter of :
T.N. Godavarman Thirumulkpad Petitioner
Union of India and ors
And in the matter of:
State of Madhya Pradesh
Re: Felling and regeneration
We have heard the learned counsel for the parties at some length. The concern of the State of Madhya Pradesh is that they should be permitted to do the relling as per the working plans while the concern of the Amicus Curiae and the Central Government is that regeneration should take place.
Pursuant to the order dated 28th February, 2000 passed by this Court, a discussion took place between Shri O.P. Oberoi, Inspector General of Forests & Special secretary, on the one hand and Shri K.S. Sharma, Chief Secretary, Madhya Pradesh on the other. This discussion took place on 11th April, 2000 and the brief records in respect thereof have been filed in Court.
With regard to lifting/ban on felling of trees from land other than Government forest land, it is recorded in these minutes that the State of Madhya Pradesh was revising the Rules for transit of forest produce and felling of trees from private areas. This court was to be approached for lifting the ban only after the process of revision of these Rules is completed. The Advocate General for the State of Madhya Pradesh informs us that within a month these Rules will be finalized and placed before this Court after which further orders will be passed.
In regard to felling of trees from Government forests as per the approved working plans, it is recorded in the minutes as follows:
"After felling is done in a particular area as per the approved working plans, prescriptions given in the working plans are required to be properly implemented to ensure the regeneration. However, in Madhya Pradesh at times, though felling has been done as per the approved working plans, necessary prescriptions which ensure regeneration, have not been implemented, perhaps, due to non-availability of sufficient funds.
It was agreed that in future, no felling, even as per the approved working plans shall be done for any area in respect of which sufficient budgetary provisions have not been made for implementation of prescriptions given in the working plans for regeneration. IGF & SS mentioned that in respect of areas where felling has been done in last three years and the corresponding prescriptions for regeneration have somehow not been implemented, a phased programme for three years may be prepared. Allocation of adequate budget provisions for implementation of the same may be made by the State Government. Chief Secretary, MP informed that State has 208 of the country's forest area, hence, it should be provided central assistance on prorata basis to enable the State Govt. to implement the various prescriptions of the working plans. He also mentioned that if forests are not worked as per working plans, it may lead to their degradation. IGF & SS has advised that the State Govt. may utilize funds already provided under the Central Sponsored Schemes and Central Sector Schemes and prepare suitable proposals which would be considered by the Ministry on merits."
From the aforesaid, it is evident that the felling is far in excess of what would be justified with reference to the regeneration, and the main cause in respect thereof – is non-availability of sufficient funds. Even with regard to the felling of trees as per the working plans in the last three years, the corresponding prescription for regeneration has not been implemented.
Two questions immediately arise for consideration. One is with regard to the implementation of the working plans in so far as felling is concerned and the second is with regard to the regeneration of forests. It is quite obvious that the two activities must co-exist. There cannot be felling without regeneration because that will over a period of time only result in the forests vanishing. There has been shortfall with regard to the regeneration and as a result thereof forest cover is depleting. That shortfall has to be made up and for the future such felling has to be done which will ensure that there is at least no further depletion of the forest cover, and that the targets for increase in forest cover, as contemplated in the working plans, are met. In other words, regeneration should be commensurate with the felling, and to the extent stipulated in the working plans. The working plans were approved by the Central Government. It is, therefore, for the Central Government primarily to ensure the implementation thereof. In view of what is contained in the minutes, we feel it would be appropriate to hold that the States of Madhya Pradesh is at liberty to approach the Ministry of Environment & Forests for permission to carry out any further felling in accordance with the working plans, and any permission which is granted hereafter will be a\effective and the orders of this court will not stand in the way of carrying out the felling to the extent so permitted. A report, however, will b3e filed in court within three weeks of any such permission being granted so as to enable the court to oversee whether any orders are called for.
We are sure that the Central Government will deal with any such request made by the State expeditiously, and keeping in mind all factors including the principle of sustainable development.
As far as regeneration of the forest is concerned, it is quite evident that the State of Madhya Pradesh does not have the funds required for carrying out the task nor there is any likelihood of their being able to raise finances in respect thereof.
A suggestion has been mooted to the effect that for regeneration of forest, there should be a joint venture between the State of Madhya Pradesh and the Central Government whereby the working capital, in whole or substantially the whole, can be provided by the Central Government and the regeneration of degraded forests carried out. Such a venture can be on a commercial basis which will be not only profitable to both the State and the Centre but, what is more important, it will hopefully generate lot of employment opportunities for the local population. This aspect should be looked into and a plan finalized and implemented preferably within a period of eight weeks from today. The final decision so taken may be intimated to the Court by way of an affidavit.
It is to be borne in mind that taking an overall view is important for the country that in certain areas where natural forest exist, the same should be preserved. The political boundaries are drawn for various considerations but as far as the environment is concerned one has to take a holistic view and in that view of the matter one cannot overlook the fact that even though the national average of the forest cover is low, even that low figure is there because of the higher percentage of the forest cover in the Hill States and in the State of Madhya Pradesh and in North Eastern States. Majority of the States in India fall short of national average as far as the forest cover is concerned. For the benefit of the said States also may for the benefit of the whole region, it is important that there should not be any further depletion of the forest cover in these sensitive areas of Madhya Pradesh and in the Himalayas and the other sensitive areas like the Western Ghats etc. In order to ensure the preservation and regeneration of forests in these areas, the Central Government should consider whether the deficient States should not be asked to contribute towards the preservation of the existing forest cover and compensation/incentive given to the forest-rich States to preserve and regenerate forest. In a sense, there should be a partnership of all the States to ensure the maintenance and improvement of the forest cover. This suggestion should be considered by a Committee of the Secretary (Finance) and Secretary, Ministry of Environment & Forests in consultation with the Chief Secretaries of all the States and a report submitted preferably within eight weeks.
We further direct that the Central Government should call for the particulars from each State and then reconsider the working plans which have been approved and carry out such modifications as it may deem proper so as to ensure that the regeneration is commensurate with the felling of the trees. The particulars will be called for by the Central Government within two weeks, the said particulars will be supplied by the States concerned within four weeks thereafter and a report submitted by the Central Government to this Court within eight weeks.
Re: Regularisation of encroachments
The learned Amicus Curiae has brought to our notice a request which has been made by the State of Madhya Pradesh to the Central Government for regularization of encroachments. As per the aforesaid minutes dated 11th April, 2000 to which the Chief Secretary, Madhya Pradesh was a party, one of the important condition for regularization of encroachment is the carrying out of compensatory afforestation over the equivalent land. The proposal for regularization is for the period 1.1.1977 to 25.10.1980. One cannot shut eyes to the fact that there would be encroachment thereafter.
Experience has shown that whenever regularization takes place subject to imposition of conditions such as compensatory afforestation, the regularization becomes effective without the conditions ever been fulfilled.
In our opinion, it will be more appropriate that the conditions imposed in relation to regularizations are required tobe fulfilled first before any regularisation is granted. The result of this would be that the regularisation would be deferred but the fulfilment of the conditions ensuring inter alia compensatory afforestation would be ensured. This is a matter to be considered by the Central Government.
In other words, the eligibility condition for permission to grant regularisation of the encroachments would be the fulfilment beforehand of conditions under the Guidelines, especially in regard to compensatory afforestation.
The request of the State of Madhya Pradesh should be considered by the Ministry of Environment & Forests and a decision taken within eight weeks.
Re: Authority competent to write a CR of Forest Deptt. Officer
The question which arises for consideration is as to who is the authority competent to write a confidential report with regard to an officer belonging to the Forest Department.
The Indian Forest Service is one of the All India Services. The officers selected on the basis of an All India Competitive Examination, like the officers belonging to the Indian Administrative Service, are then deployed in different States. That becomes the cadre for them.
In the State of Madhya Pradesh, persons belonging to the Indian Forest Service are also deployed, just as they are deployed to other States. In the Forest Department in the State, the lowest rung for a direct recruit belonging to the Indian Forest Service is the post of Assistant Conservator of Forests. Below the Assistant Conservator of Forests are three levels starting with that of a Guard, Forester and Range Forest Officer. These three lowest rungs are manned by officers belonging to the State Forest Service. Recruitment to the post of Assistant Conservator of Forests is made partly by promotion from an officer belonging to the State Forest Department (being a Range Forest Officer) and partly, as already noticed, by direct recruitment to the Indian Forest Service.
The hierarchy in the Indian Forest Service is that above the Assistant Conservator of Forests in the Divisional Forest Officer, thereafter on promotion a person becomes Conservator of Forests, then Chief Conservator of Forests followed by Additional Principal Chief Conservator of Forests and at the pinnacle of the pyramid is the Principal Chief Conservator of Forests.
The practice which has been adopted so far in the State of Madhya Pradesh and possibly in some other States also, is that the confidential reports of the officers belonging to the Forest Department holding any of the posts between that of a Guard and the Principal Chief Conservator of Forests is not written by the superiors within the same Service but is written by the officers belonging to the office of the District Collector and superior officers on the civil side.
For writing of the confidential reports, the Central Government has, under Section 3 of the All India Services Act, 1951, framed All India Services (Confidential Rolls) Rules 1970. According to Rule 2(e), the 'reporting authority' is defined as follows :
"reporting authority means the authority who was, during the period for which the confidential report is written, immediately superior to the member of the service and such other authority as may be specially empowered in this behalf by the Government."
The 'reviewing authority' is defined in Rule 2(f) as follows:
"reviewing authority' means the authority who was, during the period for which the confidential report is written, immediately superior to the reporting authority and such other authority as may be specifically empowered in this behalf by the Government;"
It seems that Rule 2(e) had been interpreted by the State to mean that the confidential report of an officer could be written by a person who is superior to him and also by such other officer who may be specified in this behalf. In view of the latter portion of said Rule 2(e), the State Government have authorised officers of Service other than of the Forest Department to write the confidential reports. In this manner, in effect, the administrative control of officers belonging to the Forest Department is not within the Department itself.
The aforesaid Rule 2(e) came up for consideration before this Court, in State of Haryana vs. Shri P.C. Wadhwa, IPS Inspector General of Police & Ant., 1987 (2) SCR 1030. While interpreting the said Rule 2(e), this Court at page 1035 observed as follows:
"In this connection, it may be pointed out that it is not disputed that the conjuction 'and' occurring in clauses (e), (f) and (a) should be read as 'or'. Under clause (e), the 'reporting authority' may be either immediately superior to the member of the Service or such other authority as may be specifically empowered in this behalf by the Government. The expression 'immediately superior' obviously indicates that the reporting authority should be the immediate superior officer in the same Service to which the member of the Service belongs. The position is the same as in the cases of 'reviewing authority' and 'accepting authority'. SO, under the first part of clause (e), the reporting authority of the respondent could be a person who is immediately superior to him in the Police Service............."
It appears to us, and which is logical, that upto the officer of the rank of Additional Principal Chief Conservator of Forests the reporting authority has to be the immediately superior officer within the Forest Department. For example, for the Assistant Conservator of Forests, the reporting authority can only be the Divisional Forest Officer and for him the reporting authority would be the Conservator of Forests for whom the reporting authority has to be the Chief Conservator of Forests and his reporting authority would be Additional Principal Chief Conservator of Forests and lastly his reporting authority would be the Principal Chief Conservator of Forests. Likewise the reviewing authority would also be the person within the same Department. It is only in case of the Principal Chief Conservator of Forests that the reporting authority will be a person other than one belonging to the Service because there is no one superior to the Principal Chief Conservator of Forests within the Service. As far as he is concerned, the reporting authority would be a person who is familiar with the work of Principal Chief Conservator of Forests and that will be the person to whom he reports and who is superior to him in rank and hierarchy.
We, therefore, direct the State of Madhya Pradesh to pass appropriate
orders enumerating the reporting authorities in the manner indicated