Surinder Singh Nijjar J
This order will dispose of the I. As. noted above.
Writ Petition (C) No. 202 of 1995 was filed as a PIL under Article 32 of the Constitution of India for and on behalf of the people living in and around the Nilgiri Forest on the Western Ghats. The petitioner sought to challenge the legality and the validity of the actions of the State of Tamil Nadu, the Collector, Nilgiris District and the District Forest Officer, Gudalur and the Timber Committee represented through the Collector, Nilgiris (Respondent Nos. 2 to 5 respectively), in destroying the tropical rain forest in the Gudalur and Nilgiri areas in violation of the Forest Act, 1927, Forest (Conservation) Act, 1980 and Tamil Nadu Hill Stations Preservation of Trees Act and the Environment (Protection) Act, 1986. This, according to the petitioner, has resulted in serious ecological imbalances affecting lives and livelihood of the people living in the State of Tamil Nadu.
The petitioner has highlighted that the respondents have in collusion with certain vested interests allowed trespassers to encroach and enter upon the forest land for the purpose of felling trees and conversion of forest land into plantations. It was pointed out that the encroachers on the forest land have been indiscriminately cutting and removing valuable Rosewood trees, Teak trees and Ayni trees, which are immensely valuable and are found exclusively in the aforesaid forest. It was pointed out that loss of such trees would be permanent and irreparable to the present and future generations to come. The petitioner has clearly pleaded that the value attached to Rosewood and Teak wood has resulted in a mad rush by timber contractors in collusion with Government agencies, for making quick profits without any regard to the permanent damage and destruction caused to the rain forest and to the eco-system of the region. The petitioner also pointed out that cutting and removing of trees is not limited only to the mature trees. In their anxiety to make huge profits the entire forest areas are being cleared, by indiscriminate felling of trees. The petitioner also pointed out that the national policy adopted in the year 1952 provided for the protection and preservation of forests. The existence of large areas of land covered under forest is recognized as a valuable segment of the national heritage. The petitioner also pointed out that the protection from exploitation of forests, in particular natural forests, is imperative as such forests once destroyed can not be regenerated to their natural state. The petitioner has pleaded that the destruction of rain forests would adversely affect the environment, eco-system, the plants and animals living within the forests. This would result in such destruction, which would ultimately result in drastic changes in the environment and the quality of life of people living in and around the forests. The petitioner also highlighted that although the national policy has provided that 33% of the land mass of India shall be covered with forests, the present extent of the forest covered areas was below 15%. The natural rain forest cover was only around 5%. Such meager forest cover had led to the enactment of the Forest (Conservation) Act, 1980. Statement of objects and reasons of the aforesaid Act is as follows:-
Deforestation causes ecological imbalance and leads to environmental deterioration. Deforestation had been taking place on a large scale in the country and it had caused widespread concern.
With a view to checking further deforestation, the President promulgated on the 25th October, 1980, the Forest (Conservation) Ordinance, 1980. The Ordinance made the prior approval of the Central government necessary for de- reservation of reserved forests and for use of forest-land for non-forest purposes. The Ordinance also provided for the constitution of an advisory committee to advise the Central Government with regard to grant of such approval.
Apart from pointing out the provisions of the aforesaid Act, the petitioner also protested that the population living in the areas mentioned above is being deprived of the right to live in a clean and pollution free environment and, therefore, their fundamental rights protected under Article 21 of the Constitution of India are being violated. The petitioner pointed out that the preservation and protection of forests is recognized as essential for maintaining a clean and pollution free environment. He further pointed out that the rain forests, which are found only in the southern part of the Western Ghats contain several rarest species of plants and animals and also the main source of water supply to the rivers flowing from the Ghats. The large scale denuding of the green cover on the Western Ghats has resulted in shortage of water in the rivers and has adversely affected the people living on the water flowing from the rivers.
This apart, it was pointed out that forests are the main source of livelihood for a large number of people, who live within and around the forests. It was also pointed out that the rain forests are the source of life and the plants and animals contained within it are useful for enhanced quality of life enjoyed by mankind. The bio-diversity of the rain forest, it was emphasized, has to be preserved for the welfare and well being of future generations of mankind. The petitioner was constrained to move this Court in the present writ petition being so perturbed by the large scale destruction of the forests and other natural resources found in the three States namely Tamil Nadu, Karnataka and Kerala. It was lamented that all the protective legislation enacted by Union of India are nothing more than statements in the statute books, in as much as the forest land and its wealth are being plundered everyday. He pointed out that it can no longer be denied that well organized rackets exist between the forests authorities, timber contractors and the local authorities which are facilitating the cutting and removal of trees and timber in gross violation of Forests Conservation Act. The petitioner has given details of the manner in which individuals, contractors and firms were clandestinely permitted to trespass and plunder the forest area for the invaluable Rosewood trees. It was stated that each tree commands a price of Rs.15 to 20 Lakhs in the market. When all the efforts of all the concerned individuals, NGOs and other social activists failed, the petitioners were constrained to knock on the doors of this Court by way of writ petition under Article 32 of the Constitution of India. The prayers made in the aforesaid writ petitions are as under:-
issue an appropriate writ, order or direction directing the State of Tamil Nadu to take steps to stop all felling and clearing activities in the forests of Nilgiris District in the State of Tamil Nadu.
issue an appropriate writ, order or direction directing the respondents 2 to 5 to stop conversion of forest lands to plantation or other purposes.
issue an appropriate writ, or direction directing respondents 2 to 5 to take steps to remove all unauthorised and illegal occupants of forest land in the Nilgiri District of Tamil Nadu.
issue an appropriate writ, order direction directing respondent 2 to 5 to stop the transport and removal of timber from the forests in the Nilgiri District.
issue an appropriate writ, order direction to appoint a committee for assessing the damage caused to the forest in the western ghats in the State of Tamil Nadu, Karntaka and Keral and in particular the hills of the Nilgiris mountain.
Pass such other and further orders.
Understandably disturbed by the horrendous fact situation narrated in the writ petition, this Court issued notice to not only the concerned States but also to other States. Thereafter, the writ petition is pending.
In this writ petition, Interlocutory Applications have been filed seeking either general or specific directions in relation to various issues concerning the protection and improvement of environment. The subjects covered by Interlocutory Applications at various stages ranged from protection of existing forest cover; improvement in the forest cover; protection of lakes, rivers and wild life; and protection of flora and fauna and the ecological system of the country. This Court has been continuously monitoring the enforcement of the protected measures directed to be taken by the various Central/State authorities on the basis of the recommendations made by the relevant expert bodies.
On 29th October, 2002, this Court considered I.A. No. 566, in which this Court had taken suo-moto notice on the Statement of Mr. K.N. Rawal, Additional Solicitor General to the effect that the amount collected by various States from the user agencies to whom permissions were granted for using forest land for non-forest purposes, was not being utilized for such compensatory afforestation. It was pointed out that moneys paid by user agencies to State Governments for compensatory afforestation were utilized for such afforestation only to the extent of 63% of the funds actually realized by the State Governments. The shortfall even at that time was nearly Rs. 200 crores. This Court, therefore, recorded that on the next date, it would consider as to how this shortfall was to be made good. It was directed that the Ministry of Environment and Forest should formulate a Scheme whereby, whenever any permission is granted for change of user of forest land for non-forest purposes, and one of the conditions of the permission is that, there should be compensatory afforestation, then the responsibility for the same is that of the user-agency and should be required to set apart a sum of money for doing the needful. It was further provided that in such a case, the State Governments concerned will have to provide or make available land on which forestation can take place. This land may have to be made available either at the expense of the user-agency or of the State Governments, as the State Governments may decide. It was further directed that the scheme which is framed by the MoEF should be such as to ensure that afforestation takes place as per the permissions which are granted and there should be no shortfall in respect thereto.
It was also brought to the notice of this Court on the basis of the statement placed on record in I.A.Nos.419 and 420 that the funds accumulated for diverting forest area for non-forest purposes, compensatory afforestation, although actually received, had not been appropriately utilized. The CEC examined this question. The report, inter alia, provided that there should be a change in the manner in which the funds are released by the State Governments relating to Compensatory Afforestation. The CEC recommended that it would be desirable to create a separate fund for Compensatory Afforestation, wherein all the money received from the user-agencies are to be deposited and subsequently released directly to the implementing agencies as and when required. The funds received from a particular State would be utilized in the same State.
There was a consensus among the States and the Union Territories that such a fund be created. It was also recommended that the funds should not be a part of general revenues of the Union or all the States or of the Consolidated Funds of India. The CEC Report also contemplated the involvement of user-agencies for Compensatory Afforestation.
The CEC in its report dated 5th September, 2002 made eight recommendations which were accepted by the Union of India in an affidavit filed in response to the aforesaid report. The Union of India further stated, in the affidavit, that major institutional reorganization of the present mechanism has to be undertaken. It was proposed that comprehensive rules will be framed which will inter alia relate to the procedure and compensation. It was also proposed that there shall be a body for the management of the Compensatory Afforestation Fund (CAF). The suggestion of the Union of India was that CAF would be composed of a Director General of Forest; Special Secretary, who would be the ex-officio Chairman and Inspector General of Forest, who would be the ex-officio Member Secretary. The report of the CEC was accepted and this Court made the following recommendations:-
Keeping in view the aforesaid representation, the MoEF issued a notification on 23rd April, 2004 constituting a "Compensatory Afforestation Funds Management and Planning Authority (CAMPA)" as an authority under Section 3(3) of the Environment (Protection) Act, 1986. This notification provides that there shall be a governing body. Minister of Environment and Forests, Government of India is the Chairman. Apart from the members who are taken from the level of Secretary, MoEF to the level of Inspector General of Forest, the governing body also includes an eminent professional ecologist, not being from the Central and the State Government for a period of 2 years of time, but for two consecutive terms. The notification also provides for an executive body having seven members with Director General of Forests and Special Secretary, MoEF, Government of India as the Chairman. The notification elaborately provides the power and functions of the Governing Body; power and functions of the Executive Body; Management of the Funds; Disbursement of funds; monitoring and evaluation of works. It also provides that every State or the Union Territory shall have a Steering Committee and a Management Committee. It also provides the powers and functions of the State Steering Committee and the State Management Committee. The jurisdiction of the CAMPA is throughout India. Unfortunately, the aforesaid notification has only remained on paper and it has not been made functional till date by the MoEF.
This Court again examined the entire issue in relation to the decline in environment quality due to increasing pollution, loss of vegetation cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risk of environmental accidents, and threats to life support system, for the protection of which the Environment (Protection) Act, 1986 had been enacted. A comprehensive judgment was given in I.A.No.826 in I.A.No.566 in W.P. (C) No.202 1995 on 26th September, 2005. The Court noticed the statutory provisions contained in the Forest Conservation Act, 1980, Environment (Protection) Act, 1986, and Water Prevention and Control of Pollution Act, 1974. It also noticed that large sums of money which had been payable by user-agencies in cases where approval had been granted for diverting forest land that stipulated for compensatory afforestation were not being used. It is further noticed by this Court that certain rates had been fixed per hectare of forest land depending on the quality and density of the land in question converted for non-forestry use. After detailed examination of the issues related to the payment of Net Present Value (NPV) and Compensatory Afforestation Fund, the Court upheld the constitutional validity of the payment to CAMPA under the notification dated 23rd April, 2004. It was held that the payment of NPV is for the protection of environment. It was further held that the natural resources are not the ownership of any one State or individual, public at large is its beneficiary. Therefore, the contention that the amount of NPV shall be made over to the State Government was rejected.
The Court also constituted a Committee of Experts (Kanchan Chopra Committee) to formulate a practical methodology for determining NPV payable for various categories of forest and the project which deserves to be exempted from payment of NPV.
As noticed earlier, huge amount of money received from the user-agencies towards the NPV, Compensatory Afforestation etc. were lying with various authorities without any effective control and monitoring as the CAMPA notification had not been made operational by the MoEF 1997 (1) SCC 388 that it is the duty of the State to preserve the natural resources in their pristine purity. The Doctrine of Public Trust was re-enforced. It was emphasized that the Doctrine of Public Trust is founded on the idea that certain common properties such as rivers, seashore, forest and the air were held by the Government trusteeship for the free and unimpeded use of the general public. It was reiterated that our legal system based on English Common Law which includes the Doctrine of Public Trust as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment.
Therefore, this Court recognized the need to take all precautionary measures when forests land are sought to be diverted for non-forestry use, the creation of CAF was approved. In coming to the aforesaid conclusions, the Court took into consideration intergenerational equity. The State was required to undertake short term as well as long term measures for the protection of the environment.
As noticed earlier, this Court by order dated 28th March, 2008 had fixed the rates at which NPV is payable for the non-forestry uses of forest land falling in different Eco-classes and density sub-classes. The rates vary from Rs.10.43 lakh per hectare to Rs.4.38 lakh per hectare. For the use of forest land falling in the National Parks and Wildlife Sanctuaries, the NPV is payable at 10 times and 5 times respectively of the normal rates of NPV.
By order dated 9th May, 2008, this Court has exempted the payment of NPV for non-forestry use of forest land
upto one hectare for construction of schools, hospitals, village tanks, laying of underground pipe lines and electricity distribution lines upto 22 KV,
for relocation of villages from National Parks/Wildlife Sanctuaries,
for collection of boulders/silts from river beds,
for laying of underground optical fibre cables and
for pre-1980 regularization of encroachments and has granted 50% exemption for underground mining projects.
Although huge sums of money had been received from user-agencies but there were no effective checks and balances for its utilization. Therefore, by order dated 5th May, 2006, this Court accepted a suggestion made by the CEC submitted in I.A. No.1473 for constitution of an Ad-hoc body till CAMPA becomes operational. All State Governments/Union Territories were directed to account for and pay the amount collected with effect from 30th October, 2002 in conformity with the order dated 29th October, 2002 to the aforesaid Ad-hoc body (Ad-hoc CAMPA). The following two suggestions made by the CEC were accepted:-
The Chief Secretaries of the State Governments/Administrators of Union Territories were directed to cooperate with the Ad-hoc CAMPA as well as the Comptroller and Auditor General. The Ad-hoc CAMPA under the Chairmanship of the Director General of Forests and Special Secretary, MoEF and has
Inspector General of Forest (FC), MoEF
representative of Comptroller and Auditor General of India
nominee of the Chairman of the CEC as its Members.
In accordance with the directions of this Court, the money already received as well as the money being received towards the NPV etc. have been transferred to the Ad-hoc CAMPA and invested in the fixed deposit with National Banks. The money lying with the Ad-hoc CAMPA towards the NPV etc. received from the States (principal amount) and the interest received on the fixed deposit (cumulative interest) has substantially increased over a period of time and is presently about Rs. 30,000 crores.
On 2nd April, 2009, MoEF has issued "the guidelines of State Compensatory Afforestation Fund Management and Planning Authority (State CAMPA)". These guidelines have been prepared on the basis of the discussions held in the meeting of the Chief Secretaries that the objective to assist the States/Union Territories for setting up the requisite mechanism in consonance with the directions issued from time to time by this Court. The guidelines are general in nature and can be moulded keeping in view the specific needs of any particular State/Union Territory. The State CAMPA has been set up as an instrument to accelerate activities for preservation of natural forests, management of wildlife, infrastructure development in the sector and other allied works. By order dated 10th July, 2009 this Court directed that the guidelines and structure of the State CAMPA as prepared by MoEF may be notified and implemented. The Court also permitted the Ad-hoc CAMPA to release about Rs.1000 crore per year for the next five years, in proportion of 10% of the principal amount pertaining to the respective States/Union Territories, inter alia, subject to the condition that the State Accountant General shall carry out, on annual basis, the audit of the expenditure incurred every year out of the State CAMPA funds. It was further directed that an amount upto 5% of the amount released to the State CAMPA, i.e., upto Rs.50 crore per annum, may also be released and utilized by the National CAMPA Advisory Council constituted under the Chairmanship of Ministry of Environment and Forest for monitoring and evaluation and for the implementation of the various schemes as given in the State CAMPA guidelines.
The State CAMPA has been constituted for each State/Union Territory. It has a three-tier structure. The Executive Committee functions under the Chairmanship of the Principal Chief Conservator of Forests is responsible for the Annual Plan of Operation (APO) for various works planned to be undertaken during each year. The Steering Committee under the Chairmanship of Chief Secretary is responsible for approving the APO for each year. The Chief Minister is the Chairman of the Governing Body which is responsible for overall guidance and policy issues. The Ad-hoc CAMPA releases the funds to each of the State CAMPAs as per the approved APO. At present, a total sum of Rs.1000 crore is permitted to be released to the State per year. The Statewise accounts of the principal amounts and cumulative interest be maintained by the Ad-hoc CAMPA. The funds are not permitted to be utilized for any purpose other than those authorized by the Court. The administrative expenses of CAMPA are incurred by the CEC.
With the establishment of the Ad-hoc CAMPA, huge sums of money have accumulated which can be released to the State CAMPA for utilization, for protection and for the improvement of the national environment. Now the aforesaid applications have been filed by different States seeking release of some funds for completing the task of compulsory afforestation, as directed by this Court from time to time. The relief claimed in all the applications is almost identical. We shall make a reference to the averments made in I.A.No.3618 of 2013 for the purpose of deciding all the applications.
I.A. No. 3618 of 2013 in Writ Petition (C) No. 202 of 1995 has been filed by the State of Gujarat with the following prayer:-
Prayers made in other applications are similar, if not identical.
The aforesaid relief is claimed on the basis that the amount available with CAMPA is substantially higher than Rs.1,000/- crores, wherein the annual release from the Ad-hoc CAMPA has been restricted to Rs.1,000/- crores p.a. by the orders of this Court. It is further pointed out that only during the year 2009- 10, 10% of the principal amount, i.e., Rs.24.96 crores has been released by the Ad-hoc CAMPA to Gujarat State. During subsequent years, i.e., 2010-11 and 2011-12, the annual release from ad-hoc CAMPA to Gujarat State had come down from 10% to 8% and then to 7%, respectively. For the year 2012-13, the amount released is only 6.5% of the principal amount. It is also submitted by the learned counsel appearing for the State of Gujarat that at the time when these applications were filed in April, 2013, the total funds available with the Ad-hoc CAMPA were as follows:-
The Principal amount at the disposal of ad-hoc CAMPA is around Rs.28000 crores.
The accrued interest on it is of the order of over Rs.4,000 crores.
The annual accrual of interest on the deposits is of the order of Rs. 2200 crores.
Relying on the aforesaid facts and figures, it is submitted by the learned counsel for all the States that the funds released to the State CAMPAs are only a fraction of the interest accruing in the Ad-hoc CAMPA accounts. It is further submitted that the value of the compensatory levies, which have been obtained against the diversion of forest land over a period of many years has eroded substantially. This is added to by the continuous inflationary trends, which has made the task of undertaking Compensatory Afforestation very cost intensive. Therefore, it is imperative that the funds are made available to State CAMPAs in a substantial ratio to the amounts collected from the State/Union Territories. To illustrate this dilemma, the applicant has relied on a chart, which is as under:-
(Rs. In Crores)
Relying on the aforesaid chart, it is submitted that due to release of insufficient CAMPA funds, all the NPV Projects approved by the Steering Committee could not be started. In the year 2009-10, out of 24 NPV Projects only 4 projects could be implemented. In the year 2011-12, out of 14 NPV Projects only 12 Projects could be implemented. In the year 2012-13, out of 15 NPV Projects only 14 Projects could be implemented. It is pointed out that even in relation to the projects, which have been implemented; all the activities in support of the projects could not be taken up due to want of funds. This has resulted in an overall shortfall in the Forest and Wildlife Conservation, which is the prime objective of CAMPA funds. Therefore, several State/Union Territory Governments including State of Gujarat have requested the Ministry of Environment & Forests to increase the annual release from the Ad-hoc CAMPA funds to a minimum 10% of the principal amount available with Ad-hoc CAMPA, without any ceiling of about Rs.1,000/- crores per annum. However, since no response was received from the MoEF, the State of Gujarat and other applicant States/Union Governments were constrained to file the IAs.
These applications came up for hearing on 26th August, 2013, 20th September, 2013 and 4th October, 2013. Upon examination of the entire matter, a direction was issued on 9th December, 2013 to the Central Empowered Committee (hereinafter referred to as "CEC") to submit its report on the applications and the prayers made by the applicant. CEC has submitted its report dated 6th January, 2014.
In response to the application filed by the State of Gujarat, this Court by order dated 9th December, 2013 had directed the CEC to submit its report.
In its report dated 6th January, 2014, CEC has recommended that the prayer made in the application ought to be accepted. The relevant extract of the CEC Report is as under:
The aforesaid recommendations have been given by the CEC after setting out the background in which the CAMPA was set up.
Mr. Salve learned Amicus Curiae on the basis of the record has submitted that on the directions issued by this Court about Rs.6000 crores are being received by CAMPA annually. This amount represents the total amount collected for compensatory afforestation fund (principal amount Rs.3000 crores annually) and approximately Rs.3000 crores by way of interest on fixed deposits annually. This is in addition to the accumulative principal amount which is already invested in fixed deposits. He submits that keeping in view the directions issued by this Court from time to time for ensuring afforestation it would be appropriate to accept the recommendation of the CEC. He submits that the scheme proposed by the CEC will gradually increase in the release of funds to the State/Union Territory over a period of time and on a sustainable basis. The learned Amicus Curiae has, however, suggested that certain other safeguards ought to be incorporated to ensure efficient management of the funds released. Upon consideration of the entire matter at length, we accept the recommendations made by the CEC reproduced above. We, however, modify the direction 11(iv) as under:-
The National CAMPA Advisory Council (NCAC) will finalize and issue guidelines before 1st May, 2014 regarding the activities for which the use of the CAMPA funds will not be permissible (such as foreign study tours) and the activities for which a ceiling on the use of the CAMPA funds will apply (such as purchase of vehicles and construction of residential / office buildings). These guidelines will be strictly followed by the State CAMPA. The same shall be treated as directions of this Court. The order dated 10th July, 2009 is modified accordingly.
The Ad-hoc CAMPA is permitted to release annual amount equal to 10% of the principal amount lying to the credit of each State/Union Territory, out of the interest receivable by it with effect from financial year 2014-2015 onwards. The release of the aforesaid funds shall be subjected to the conditions enumerated above.
It is further directed that no money out of the amounts available with Ad-hoc CAMPA will be transferred or utilized without the leave of this Court. It is further directed that the National CAMPA Advisory Council will file a Status Report within a period of three months regarding the monitoring and evaluation of the works being undertaken, by utilizing the funds released by CAMPA.
The Interlocutory Applications are disposed of with the aforesaid directions.
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