IN

Interlocutory Application No.502 of 2000
IN
Writ Petition (Civil) No. 202 of 1995

T. N. Godavarman Thirumulkpad ………………………Petitioner

VERSUS

i) Union of India Through Secretary, Ministry of Environment & Forests
ii) State of Orissa through the Chief Secretary, Government of Orissa.
iii) State of West Bengal through the Chief Secretary, Government of West Bengal.
iv) State of Karnataka through the Chief Secretary, Government of Karnataka.
v) State of Tamil Nadu through the Chief Secretary, Government of Tamil Nadu.
vi) State of Assam through the Chief Secretary, Government of Assam.
vii) State of Maharashtra through the Chief Secretary, Government of Maharashtra.
viii) State of Madhya Pradesh through the Chief Secretary, Government of M.Pradesh.
ix) State of Chattisgarh through the Chief Secretary, Government of Chattisgarh.
x) U. T. of Andaman & Nicobar Islands, Through Administrator Andaman & Nicobar
xi) State of Kerala through the Chief Secretary, Government of Kerala
…Respondents.

Date of hearing : 25.7.2002

CORAM : 1. Shri P .V . Jaykrishnan Chairman
2. Shri N . K. Joshi Member
3. Shri Valmik Thapar Member
4. Shri Mahendra Vyas Member
5. Shri M . K. Jiwrajka Member Secretary

On behalf of Amicus Curiae : Shri Sidhartha Chowdhury, Advocate.

On behalf of M/o Sh. A.D.N Rao, Advocate
Environment & Sh. D.V Neg, CCF (Central), Bhopal.
Forests Sh. D.K Sharma, CF (Central), Chandigarh
Sh. D. Sudhakar, CCF (Central), Bangalore.
Sh. N.C Bahuguna, CCF (Central), Lucknow.
Sh. B.K Patnaik, CCF (Central), Eastern Region Office, Bhuvaneshwar.

For Respondent States :
State of Orissa : Sh G.B Mukherjee, Principle Secretary (E & F)
Sh P.Singh, PCCF
State of West Bengal Sh. A. Bhattacharjee, Advocate
Ms. Manjula Gupta, Pr. Secretary (Forests)
Sh. M.K. Nanny, PCCF.
State of Karnataka Sh. R.M Ray, PCCF
Sh. D. Sarmah, Secretary (Forests)
State of Tamil Nadu Sh. J.C Kala, PCCF
State of Assam Ms. Asha Nair, Advocate
State of Maharashtra Sh. Navin Kumar, Principal Secretary (Forests),
Sh. Ajay Dua, Spl . Commissioner & Principal Secretary
Sh. M.K Sharma, PCCF
Sh. K. Subramaniam ,CCF (Protection)
Sh. Ravi Adsure, Advocate
State of Madhya Sh. P.C. Shukla, Addl PCCF
Pradesh Sh. H.S Pabla, CCF (Protection)
Sh. L.M Belwal, Conservator of Forests
State of Chattisgarh Sh. K.K Chakravarty, Principal Secretary (Forests)
Dr. R.C Sharma, PCCF
Union Territory of Sh. R. Padmanabhan, Chief Secretary
Andaman & Nicobar Sh. S.S Patnaik, PCCF & Secretary (E&F)
Islands Sh. M. Jha, Advocate.
State of Kerala Sh. E.K. Bharat Bhushan, Secretary (Forests)
Sh. P.K.S . Asari, PCCF

Observations and Recommendations of the Committee.

1. Notices for fixing the hearing of the above mentioned Interlocutory Application (I.A) were served upon all the concerned parties through their Advocates and the present I.A filed by the learned Amicus Curiae raises an important issue of decimation of forest taking place on account of large scale encroachments forest land particularly in the States of Orissa, West Bengal, Karnataka, Tamil Nadu, Assam, Maharashtra, Madhya Pradesh, Chattisgarh, Kerala and the Union Territory of Andaman and Nicobar Islands(A&N).
2. The committee had co-opted the Chief Secretaries of all the Respondent States as Special Invitees, however, due to some reason or the other, only the Chief Secretary, A & N attended the hearing.
3. The application points out that the encroachments are still continuing even in National Parks and Sanctuaries and also in ecologically sensitive areas such as the Andaman and Nicobar Islands, evergreen forests in the North East and the Western Ghats regions. This is so even after the Hon’ble Supreme Court’s order dated 12.12.1996 prohibiting any non forest activity on forest land without obtaining prior approval of the Central Government under the Forest (Conservation) Act, 1980.
4. It is further stated in the application that the states are not taking adequate steps to removal post 1980 encroachments – possibly in the hope that these would be regularized by treating them as pre 1980 encroachments. This would make a complete mockery of the Forest (Conservation) Act, 1980 and the National Forest Policy, 1988.
5. The relief’s claimed in the I.A are that no encroachments should be regularized by the Union of India, further encroachments should be prevented, all post 1980 encroachments should be evicted, and state wise committee’s should be constituted to deal with the issue and report to the Hon’ble Supreme Court.
6. In the beginning of the hearing Shri A.D.N Rao, Advocate representing the Ministry of Environment and Forests (MoEF) circulated a copy of the letter dated 3rd May 2002 issued by the MoEF regarding the removal of encroachments from forest land, a copy of the same is annexed hereto as Annexure – A. The Ministry in the said letter estimated the forest area under encroachment to be around 12.5 Lakh ha. And has asked the States to:
(i) remove all encroachments which are ineligible for regularization in a time bound manner by 30th Sept 2002;
(ii) prepare comprehensive list of encroachments with current status of eviction process;
(iii) constitute a cell in the office of the Principal Chief Conservator of Forests (PCCF) to prepare plans and monitor eviction of encroachment on continuous basis;
(iv) delegate powers to Forest Officers to hear encroachment cases and take adequate steps through summary trial; and
(v) constitute a committee under the Chairmanship of Chief Secretary for monitoring and fixing responsibility in case of failure to implement eviction plans and similar to set up committees at Circle level.
7. During the course of hearing the representatives of the States, Amicus Curiae and the Ministry of Environment and Forests expressed their views about the extent of encroachments, its main causes, difficulties faced by them, steps being taken for eviction, and also gave suggestions for effective and speedy removal.
8. The state wise estimates of forest land under encroachments, as provided by the respondent States, are as under:
S.No. Name of the State Area under encroachment (in ha.)
1. Orissa 47,300
2. West Bengal 16,940
3. Karnataka 91,000
4. Tamil Nadu 18,600
5. Assam 2,54,711
6. Maharashtra 73,000
7. Madhya Pradesh 1,52,000
8 Chattisgarh 62,270
9. Kerala 10,040
Total 7,25,861
As per records of the Ministry of Environment & Forests.
9. The Committee is of the view that the actual area under encroachment is much higher as:
(i) the above table does not show the encroachments which continue to be treated by the concerned State Governments as pre 1980 encroachments inspite of these not being eligible for regularization under the Forest (Conservation) Act, 1980.
(ii) There is a general tendency to under report the extent of encroachment at the field level.
(iii) The encroachment figures in terms of the are not regularly being updated.

10. The environmental value of one hectare fully stocked forest of 1.0 density is Rs. 126.74 lakhs over a period of 50 years as per the assessments made by the Ministry of Environment & Forests. The environmental loss due to encroachments on forest land is estimated a mind boggling figure of Rs. 4,59,978 crores. This has been worked out by taking average density of such area as 0.5 and by accepting figures of area under encroachment as provided by the states to be correct.
11. the committee is of the considered view that although individual encroachments may appear to be on small areas scattered here and there but cumulatively they have a devastating effect on the environment, destroying the bio-diversity, the hyrology, food security and threatening the ecological security of the country also food security. The encroachments act like cancer in the forests spreading without pausing and spreading into the vitals of the life supporting systems of nature destroying all upon which the life , including the human life itself depends. Unless and until an effective drive to remove the existing encroachments and prevent further encroachments is undertaken, it will become impossible to save the forests for posterity.
12. The main reasons identified by the States and others for continuing encroachments on forest land and extremely slow pace of their removal, are as under ;
(i) Lack of political will : This has been identified by almost all the states as one of the most important reasons for the inability of the states to take effective steps for the removal of encroachments. Influential persons with political affiliations not only promote encroachments but also abet in the entire process. Encroachment eviction drive inevitably results in strong leads to backlash which hampers eviction. This coupled with the tendency of most of the official to follow the path of the least resistance in removal of the encroachments.
(ii) Victimization of officials : The officers initiating encroachment earn the wrath of their political masters and suffer harassment, humiliation, threats and transfers. This completely demoralizes the entire staff and other officials.
(iii) Expectation of regularizations : Regularization of encroachments has been a regular feature in the past occurring at regular intervals. A large scale encroachments take place in the hope that some time in future, these would also be regularized, as has happened in the past. The promises made by the politicians to regularize encroachments cutting across the part lines further strengthens the hopes of such encroachers and the process continues unabated.
(iv) Totally inadequate punishments : The punishment meted out to the offenders is insignificant compared to the gravity of the offence committed. In most of the cases the punishment for offence of encroachment varies from Rs 5/- to a maximum of Rs 500/-. Most of the encroachers feel rewarded by such convictions as it provides irrefutable proof of their occupation of the land which is them used to claim their eligibility for regularization in future.
(v) Inadequate Provisions of Law : The existing provisions for removal of encroachments are time consuming and grossly ineffective. In respect of deemed forest area, unclassed forest and area recorded as forest in Government records, which are not legally constituted forests, the provisions under which an offence can be booked are not clear .
Thousands of cases remain pending in the Courts for years without any decision. Influential persons continue to prolong litigation for years and enjoy the illegal occupation and use the illegally occupied land for commercial gains and profits.
(vi) No punishment for abettors : There is no provision or mechanism to book and punish the abettors of encroachments. This encourages the highly organised land mafia, politicians and influential sections of the society to actively support and encourage large scale encroachments as they derive financial, political and social benefits from such activities.
(vii) Poor boundary demarcations : The forest boundaries are not properly demarcated either on the ground or in the maps. This helps the encroachers and abettors to exploit the situation to their advantage. Many encroachers are lost in the Courts on this account alone.
(viii) Mutation in Revenue Records : In a very large number of cases the notified areas have not been recorded properly in the land records maintained by the revenue department and continue to be shown as non forest area. This gives an opportunity for unauthorized allotment by treating it as non forest land in violation of the Forest (Conservation) Act, 1980, this also encourages further encroachments.
(ix) No Compensation for Environmental Losses: There is no provision for recovering environmental losses from the encroacher caused due to the damage to flora and fauna and for the loss of productivity of the forest land. This emboldens them to encroach more on forest land.
(x) Poor Infrastructural Facilities : A) Inadequate Staff – The sanctioned staff strength is grossly inadequate for effective protection of forests. B) Vacancies – Large number of posts in the front life staff that is from range forest officers down to the forest guards are lying vacant since last many years in view of ban imposed or recruitment on account of poor financial position of most of the states. This is adversely affecting the protection work and provides opportunity to the encroachers to sneak in an encroach on forest lands. C) Old Age of the Front Line Staff : In view of the ban imposed on recruitment of the front line staff since many years, the average age of the forest guards is around 45 years. The rigours of field duty requires young and energetic staff without which the protection work suffers. D) Public Prosecutor : The services of able and effective Public Prosecutor is not available to prosecute encroachers. This is one of the reasons for poor rate of conviction against encroachers. E) lack of communication, transport facility, etc: Vehicles, wireless, network, telephones, arms etc. are grossly inadequate for effective patrolling and protection over large tracts of lands.
(xi) Diversion for miscellaneous activities :The forest staff is being routinely diverted for miscellaneous activities such as polio drive, elections, census etc. at the cost of forest protection. They also spend considerable time in attending meetings not directly concerned with forestry related work. This results in low priority given to forest protection, which hampers effective protection work. The situation is rather critical in Madhya Pradesh where the system of Zilla sarkar is in vogue and the officials upto the assistant conservator of forest level work under administrative control of Zilla Sarkar through revenue officials
(xii) Law and Order Problem linked with encroachment removal: Large scale encroachment removals results in serious law and order problem requiring a strong contingent of police force and presence of a magistrate. These are not made available to the forest department whenever needed which results in abandoning such drives.
(xiii) Immunity under section 197 of Cr.P.C. : There is a general reluctance on the part of the staff to participate in encroachment removal drives as it invariably leads to confrontation with the encroachers. Use of arms even in self defence in such situations results in immediate arrest of the concerned staff/ officials, as unlike police force there is no immunity from arrest u/s 197 of Cr. P.C. is available to the forest officials except in the states of Karnataka and Tamilnadu. The arrest of the officials using firearms in self defence during discharge of the official duty and subsequent personal harassment for years together causes tremendous trauma and demoralization of the staff. In most cases, there are required to defend themselves in Courts by spending out of their own salaries without any help from the state government. This is also used as an effective way to harass dedicated officials by influential encroachers through misuse of state machinery.
(xiv) Misuse of SC/ST Atrocities Act.: This Act is used in some cases to harass the forest staff which is involved in removing encroachments. Since the offence under the act is not bailable, any complaint made under this act immediately invites arrest of the concerned staff. The officers and the staff are mortally scared of retaliatory and false complaints filed against them by the encroaching offenders.
(xv) No administrative Control Over Notified/Deemed Forest etc. In many states the Forest Department has no administrative control over large tracts of excellent forest areas, including Reserved Forests. Bade Jad ka Jungle, Chote Jad ka Jungle in Madhya Pradesh and Chattisgarh, Jhudpi Jungle and unclassed forest in Maharashtra and protected forests in Orrissa, Assam would be examples. This leads to ineffective control of the Forest Department over such areas.
(xvi) Socio Economic Causes: Due to Population pressures, poverty, lack of alternative livelihood opportunities, land hunger, social status attached with land ownership are some of the causes which leads to large scale encroachments on forest land by poor tribals and other weaker sections of society.
(xvii) Alienation of Regularized lands: The present system of allowing sale of encroached lands after they have been regularized has become a thriving commercial activity for many influential persons. If such lands are allowed to be transferred only by testamentary succession and not be alienation, then it would curb illegal real-estate business in regularized lands.
13. In view of the Enormity and Seriousness of the Problem and severe operational constraints, the Committee is of the view that unless strong and effective mechanisms is immediately set up for speedy removal of encroachments, vast tracts of forest lands would be irretrievably lost and it may become impossible to manage and protect this valuable national resource. Based on the suggestions made by the state governments through affidavits and as well as by their representatives during the course of hearing and considering the issue in its entirety the following recommendations are being made unanimously by the committee.
a) Further regularization of encroachments on forest lands in any form including by issue of pattas, ownership certificate, certificate of possession, lease, renewal of lease, eligibility certificate or allotment/use for agricultural, horticultural or for plantation purposes is strictly prohibited except encroachments which are eligible for regularization in conformity with the guidelines dated 18/8/1990 issued by the MOEF:
b) The First Offence Report issued under the relevant Forest Act shall be the basis to decide whether the encroachment has taken place before 25.10.80.
c) All encroachments other than those eligible for regularization shall be evicted forthwith from the Forest Lands,
d) The Chief Secretary of the Concerned State shall be personally responsible to ensure effective and timely compliance of this order.
e) A Committee shall be constituted under the Chairmanship of the Chief Secretary with Director General of Police, Principal Chief Conservator of Forests and Forest Secretary as its members in each state/UT for supervising and co-ordinating the removal of encroachments. The Chief Secretary shall be at liberty to co-opt any other state officials and/or NGOs as members or special invitees in the committee and also to constitute similar committees at Division/Circle and/or District Levels. The Chief Secretary shall file an affidavit before the Central Empowered Committee within one month and thereafter every month giving details of the action being implemented for removal of encroachments, progress of removal of encroachments, time-frame for removal and other relevant details.
f) A notice shall be published in the local/ vernacular newspapers atleast 7 days before the actual removal is undertaken specifying, to the extent feasible the compartment/survey no. , the forest range, forest division and district from where the encroachments are being removed in compliance of this order. Whether an area is a forest or not shall be determined on the basis of the Forest Department Records and its absence from the other relevant government records.
g) In case of failure of the state government to expeditiously remove the encroachments it shall be liable to pay compensation for environmental losses caused by the continuing encroachments @ Rs. 1000/= per Ha. Per month which shall be deposited in a separate bank account. The amount of compensation shall be determined by the Central Empowered Committee after considering the total forest area under encroachment, progress of removals, efforts being made and other relevant factors;
h) The Central Empowered Committee may in appropriate case, impose a token fine of Rs. 100/ per month from the defaulting officers if it is of the opinion that such officials is/are not taking adequate steps for speedy removal of encroachments. The fine shall continue to be recovered from the salary of such officials till the Central Empowered Committee modifies its orders;
i) The performance of the revenue, police and forest officials in removing encroachments shall be recorded in their ACRs.
j) Any person or authority aggrieved by any action taken during the course of removal of encroachments in compliance with the orders of this Court including in respect of alleged excessive use of force, un-provoked firing, atrocities punishable under the SC/ST Atrocities Act will be at liberty to approach this Court through the Central Empowered Committee for redressal of the grievances. The Committee after examining such complaints shall place its recommendations before this Court for passing appropriate orders
k) Any forest lands on which encroachments have been regularized at any time shall be eligible for transfer thereinafter only by testamentary succession and not by alienation.
l) The concerned state governments shall be at liberty to provide suitable rehabilitation package to the encroachers, particularly to the tribals,
m) The state wise committees constituted under the chairmanship of the Chief Secretary shall review the infrastructure available for the protection of forests and prepare an action plan for making available the necessary infrastructure including filling up the vacancies of the front line protection staff in a time bound manner,. Necessary funds for the purpose shall be made available on priority by the state governments.
n) Compensation for environmental loss due to loss of habitat and flora and fauna shall be recovered by the State government from the encroachers involved in commercial gains;
o) This order is to operate and to be implemented notwithstanding any order at variance, made or which may be made by any government or any authority, tribunal or Court including the High Court;
p) And the earlier orders made in this matter shall be read, modified wherever necessary to this extent.
14. The Hon’ble Court may be please consider the above recommendations and p[ass appropriate orders in the matter except for the Andaman and Nicobar Islans for which detauiled o0rders have alreacty been passed by the Hon’ble Court on 7/5/2000.
15. In view of the similar situation prevailing in other states, the Committee is making a recommendation that the Hon’ble Court may also consider passing similar directions in respect of the remaining States/UTs which are not prayed as respondents in this application.


MK Jiwarajka
Member Secretary