Forest Act, 1927, Forest (Conservation) Act, 1980 and Tamil Nadu Hill Stations Preservation of Trees Act and the Environment (Protection) Act, 1986. - PIL - Apex court gave some directions in interlocutory application =
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.=
2014 (March. Part)judis.nic.in/supremecourt/filename=41309 A.K. PATNAIK, SURINDER SINGH NIJJAR, FAKKIR MOHAMED IBRAHIM KALIFULLA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. NOS. 2143 WITH 2283, 3088, 3461, 3479, 3693 IN 2143, 827, 1122,
1337, 1473 AND 1620 AND 1693 IN 1473 AND 3618
IN
WRIT PETITION (CIVIL) NO. 202 OF 1995
T.N. Godavarman Thirumulpad …Petitioner(s)
VERSUS
Union Of India & ORS. …Respondent(s)
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. This order will dispose of the I. As. noted above.
2. 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.
3. 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:-
(1) 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.
(2) 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.
4. 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.
5. 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:-
(a) 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.
(b) issue an appropriate writ, order or direction directing
the respondents 2 to 5 to stop conversion of forest lands
to plantation or other purposes.
(c) 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.
(d) 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.
(e) 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.
(f) Pass such other and further orders.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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 :-
“(a) The Union of India shall within eight weeks from today
frame comprehensive rules with regard to the constitution of a
body and management of the Compensatory Afforestation funds in
concurrence with the Central Empowered Committee. These rules
shall be filed in this Court within eight weeks form today.
Necessary notification constituting this body will be issued
simultaneously.
(b) Compensatory Afforestation Funds which have not yet been
realised as well as the unspent funds already realised by the
States shall be transferred to the said body within six months
of its constitution by the respective states and the user-
agencies.
(c) In addition to above, while according transfer under Forest
Conservation Act, 1980 for change in user-agency from all non-
forest purposes, the user agency shall also pay into the said
fund the net value of the forest land diverted for non-forest
purposes. The present value is to be recovered at the rate of
Rs. 5.80 lakhs per hectare to Rs. 9.20 lakhs per hectare of
forest land depending upon the quantity and density of the land
in question converted for non-forest use. This will be subject
to upward revision by the Ministry of Environment & Forests in
consultation with Central Empowered Committee as and when
necessary.
(d) A 'Compensatory Afforestation Fund' shall be created in
which all the monies received from the user-agencies towards
compensatory afforestation, additional compensatory
afforestation, penal compensatory afforestation, net present
value of forest land, Catchment Area Treatment Plan Funds, etc.
shall be deposited. The rules, procedure and composition of the
body for management of the Compensatory Afforestation Fund shall
be finalised by the Ministry of Environment & Forests with the
concurrence of Central Empowered Committee within one month.
(e) The funds received from the user-agencies in cases where
forest land diverted falls within Protected Areas i.e. area
notified under Section 18, 26A or 35 of the Wild Life
(Protection) Act, 1972, for undertaking activities related to
protection of bio-diversity, wildlife, etc., shall also be
deposited in this Fund. Such monies shall be used exclusively
for undertaking protection and conservation activities in
protected areas of the respective States/Union Territories.
(f) The amount received on account of compensatory afforestation
but not spent or any balance amount lying with the States/Union
Territories or any amount that is yet to be recovered from the
use-agency shall also be deposited in this Fund.
(g) Besides artificial regeneration (plantations), the fund
shall also be utilised for undertaking assisted natural
regeneration, protection of forests and other related
activities. For this purpose, site .specific plans should be
prepared and implemented in a time bound manner.
(h) The user agencies especially the large public sector
undertaking such as Power Grid Corporation, N.T.P.C., etc. which
frequently require forest land for their projects should also be
involved in undertaking compensatory afforestation by
establishing Special Purpose Vehicle. Whereas the private sector
user agencies may be involved in monitoring and most
importantly, in protection of compensatory afforestation.
Necessary procedure for this purpose would be laid down by the
Ministry of Environment & Forests with the concurrence of the
Central Empowered Committee.
(i) Plantations must use local and indigenous species since
exotics have long term negative impacts on the environment.
(j) An independent system of concurrent monitoring and
evaluation shall be evolved and implemented through the
Compensatory Afforestation Fund to ensure effective and
proper utilisation of funds.”
12. 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.
13. 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.
14. 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.
15. 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.
16. The Court reiterated the ratio of M.C.Mehta Vs. Kamal Nath &
Ors.[1] 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.
17. 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.
18. 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 (a) upto one
hectare for construction of schools, hospitals, village tanks,
laying of underground pipe lines and electricity distribution
lines upto 22 KV, (b) for relocation of villages from National
Parks/Wildlife Sanctuaries, (c) for collection of boulders/silts
from river beds, (d) for laying of underground optical fibre
cables and (e) for pre-1980 regularization of encroachments and
has granted 50% exemption for underground mining projects.
19. 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:-
“(a) ensure that all the monies recovered on behalf of the
‘CAMPA’ and which are presently lying with the various officials
of the State Government are transferred to the bank account(s)
to be operated by this body.
(b) get audited all the monies received form the user agencies
on behalf of the ‘CAMPA’ and the income earned thereon by the
various State Government officials. The auditors may be
appointed by the CAG. The audit may also examine whether proper
financial procedure has been following in investing the funds.”
20. 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 (a) Inspector General of
Forest (FC), MoEF (b) representative of Comptroller and Auditor
General of India (c) 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.
21. 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.
22. 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 State-
wise 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.
23. 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.
24. 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:-
“i. To direct the Ad-hoc CAMPA to release minimum of 10% of
principal amount deposited by the States/UTs with Ad-hoc CAMPA
and the total amount accrued as interest on such deposits to the
respective State/UT’s including to the State of Gujarat without
the ceiling of Rs.1,000 crore, in order to ensure effective and
timely implementation of Compensatory Afforestation Scheme,
Wildlife Conservation and other Forest conservation and
Protection Measures as envisaged in the CAMPA guidelines;
ii. Pass any other directions deemed fit by the Hon’ble
Court.”
Prayers made in other applications are similar, if not
identical.
25. 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:-
a. The Principal amount at the disposal of ad-hoc CAMPA is
around Rs.28000 crores.
b. The accrued interest on it is of the order of over
Rs.4,000 crores.
c. The annual accrual of interest on the deposits is of the
order of Rs. 2200 crores.
26. 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)
|Year |Amount required|Amount released |Shortfall |
| |as per APO |to Gujarat State| |
| | |CAMPA | |
|1 |2 |3 |4 |
|2009-10 |43.16 |24.96 |18.20 |
|2010-11 |43.78 |29.16 |14.62 |
|2011-12 |55.08 |26.30 |28.78 |
|2012-13 |40.61 |32.41 |8.20 |
|Total |182.63 |112.83 |69.80 |
27. 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.
28. 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.
29. 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.
30. 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:
“11. The CEC, in the above background, recommends that this
Hon'ble Court may in partial modification of its earlier order
dated 10th July, 2009 consider permitting the Ad-hoc CAMPA to
annually release from the financial year 2014-2015 onwards, out
of the interest received / receivable by it, an amount equal to
10% of the principle (sic) amount lying to the credit of each of
the State / UT at beginning of the year to the respective State
CAMPA subject to the following conditions:
i) the funds will be released by utilizing interest received
/ being received by the Ad-hoc CAMPA. The principle (sic)
amount lying with the Ad-hoc CAMPA will not be released or
transferred or utilized;
ii) the funds will be released after receipt of the
"Annual Plan of Operation" containing details of the
afforestation and other works for the conservation,
protection and development of the forests and wildlife and
approved by the Steering Committee of the respective State
CAMPA;
iii) the Ad-hoc CAMPA will be at liberty to release the
funds to the State CAMPAs in one or more installments after
considering the utilization of funds earlier released;
iv) the National CAMPA Advisory Council (NCAC) will
finalize and issue guidelines before 31st March, 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;
v) the State CAMPAs and the MoEF will expeditiously take
necessary follow up action on the observations made in the
"Report of the Comptroller and Auditor General of India on
Compensatory Afforestation in India".
vi) the back log of Compensatory Afforestation, if any,
will be tackled on priority basis and for which adequate
provision will be made in the Annual Plan of Operation
(APO) by the respective State CAMPAs; and
vii) the annual release of funds to the National CAMPA
Advisory Counsel (NCAC) will continue to be upto Rs. 50
crore and provided the amounts earlier released are found
to have been substantial utilized.”
The aforesaid recommendations have been given by the CEC after
setting out the background in which the CAMPA was set up.
31. 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.
32. 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.
33. 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.
34. The Interlocutory Applications are disposed of with the aforesaid
directions.
…………………………….…J.
[A.K.Patnaik]
………………………………….J.
[Surinder Singh Nijjar]
……..……………………………….J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
March 12, 2014.
-----------------------
[1] 1997 (1) SCC 388
-----------------------
35
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.=
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.
32. 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.
33. 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.
34. The Interlocutory Applications are disposed of with the aforesaid
directions.
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.
32. 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.
33. 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.
34. The Interlocutory Applications are disposed of with the aforesaid
directions.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. NOS. 2143 WITH 2283, 3088, 3461, 3479, 3693 IN 2143, 827, 1122,
1337, 1473 AND 1620 AND 1693 IN 1473 AND 3618
IN
WRIT PETITION (CIVIL) NO. 202 OF 1995
T.N. Godavarman Thirumulpad …Petitioner(s)
VERSUS
Union Of India & ORS. …Respondent(s)
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. This order will dispose of the I. As. noted above.
2. 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.
3. 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:-
(1) 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.
(2) 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.
4. 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.
5. 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:-
(a) 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.
(b) issue an appropriate writ, order or direction directing
the respondents 2 to 5 to stop conversion of forest lands
to plantation or other purposes.
(c) 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.
(d) 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.
(e) 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.
(f) Pass such other and further orders.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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 :-
“(a) The Union of India shall within eight weeks from today
frame comprehensive rules with regard to the constitution of a
body and management of the Compensatory Afforestation funds in
concurrence with the Central Empowered Committee. These rules
shall be filed in this Court within eight weeks form today.
Necessary notification constituting this body will be issued
simultaneously.
(b) Compensatory Afforestation Funds which have not yet been
realised as well as the unspent funds already realised by the
States shall be transferred to the said body within six months
of its constitution by the respective states and the user-
agencies.
(c) In addition to above, while according transfer under Forest
Conservation Act, 1980 for change in user-agency from all non-
forest purposes, the user agency shall also pay into the said
fund the net value of the forest land diverted for non-forest
purposes. The present value is to be recovered at the rate of
Rs. 5.80 lakhs per hectare to Rs. 9.20 lakhs per hectare of
forest land depending upon the quantity and density of the land
in question converted for non-forest use. This will be subject
to upward revision by the Ministry of Environment & Forests in
consultation with Central Empowered Committee as and when
necessary.
(d) A 'Compensatory Afforestation Fund' shall be created in
which all the monies received from the user-agencies towards
compensatory afforestation, additional compensatory
afforestation, penal compensatory afforestation, net present
value of forest land, Catchment Area Treatment Plan Funds, etc.
shall be deposited. The rules, procedure and composition of the
body for management of the Compensatory Afforestation Fund shall
be finalised by the Ministry of Environment & Forests with the
concurrence of Central Empowered Committee within one month.
(e) The funds received from the user-agencies in cases where
forest land diverted falls within Protected Areas i.e. area
notified under Section 18, 26A or 35 of the Wild Life
(Protection) Act, 1972, for undertaking activities related to
protection of bio-diversity, wildlife, etc., shall also be
deposited in this Fund. Such monies shall be used exclusively
for undertaking protection and conservation activities in
protected areas of the respective States/Union Territories.
(f) The amount received on account of compensatory afforestation
but not spent or any balance amount lying with the States/Union
Territories or any amount that is yet to be recovered from the
use-agency shall also be deposited in this Fund.
(g) Besides artificial regeneration (plantations), the fund
shall also be utilised for undertaking assisted natural
regeneration, protection of forests and other related
activities. For this purpose, site .specific plans should be
prepared and implemented in a time bound manner.
(h) The user agencies especially the large public sector
undertaking such as Power Grid Corporation, N.T.P.C., etc. which
frequently require forest land for their projects should also be
involved in undertaking compensatory afforestation by
establishing Special Purpose Vehicle. Whereas the private sector
user agencies may be involved in monitoring and most
importantly, in protection of compensatory afforestation.
Necessary procedure for this purpose would be laid down by the
Ministry of Environment & Forests with the concurrence of the
Central Empowered Committee.
(i) Plantations must use local and indigenous species since
exotics have long term negative impacts on the environment.
(j) An independent system of concurrent monitoring and
evaluation shall be evolved and implemented through the
Compensatory Afforestation Fund to ensure effective and
proper utilisation of funds.”
12. 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.
13. 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.
14. 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.
15. 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.
16. The Court reiterated the ratio of M.C.Mehta Vs. Kamal Nath &
Ors.[1] 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.
17. 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.
18. 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 (a) upto one
hectare for construction of schools, hospitals, village tanks,
laying of underground pipe lines and electricity distribution
lines upto 22 KV, (b) for relocation of villages from National
Parks/Wildlife Sanctuaries, (c) for collection of boulders/silts
from river beds, (d) for laying of underground optical fibre
cables and (e) for pre-1980 regularization of encroachments and
has granted 50% exemption for underground mining projects.
19. 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:-
“(a) ensure that all the monies recovered on behalf of the
‘CAMPA’ and which are presently lying with the various officials
of the State Government are transferred to the bank account(s)
to be operated by this body.
(b) get audited all the monies received form the user agencies
on behalf of the ‘CAMPA’ and the income earned thereon by the
various State Government officials. The auditors may be
appointed by the CAG. The audit may also examine whether proper
financial procedure has been following in investing the funds.”
20. 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 (a) Inspector General of
Forest (FC), MoEF (b) representative of Comptroller and Auditor
General of India (c) 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.
21. 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.
22. 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 State-
wise 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.
23. 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.
24. 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:-
“i. To direct the Ad-hoc CAMPA to release minimum of 10% of
principal amount deposited by the States/UTs with Ad-hoc CAMPA
and the total amount accrued as interest on such deposits to the
respective State/UT’s including to the State of Gujarat without
the ceiling of Rs.1,000 crore, in order to ensure effective and
timely implementation of Compensatory Afforestation Scheme,
Wildlife Conservation and other Forest conservation and
Protection Measures as envisaged in the CAMPA guidelines;
ii. Pass any other directions deemed fit by the Hon’ble
Court.”
Prayers made in other applications are similar, if not
identical.
25. 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:-
a. The Principal amount at the disposal of ad-hoc CAMPA is
around Rs.28000 crores.
b. The accrued interest on it is of the order of over
Rs.4,000 crores.
c. The annual accrual of interest on the deposits is of the
order of Rs. 2200 crores.
26. 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)
|Year |Amount required|Amount released |Shortfall |
| |as per APO |to Gujarat State| |
| | |CAMPA | |
|1 |2 |3 |4 |
|2009-10 |43.16 |24.96 |18.20 |
|2010-11 |43.78 |29.16 |14.62 |
|2011-12 |55.08 |26.30 |28.78 |
|2012-13 |40.61 |32.41 |8.20 |
|Total |182.63 |112.83 |69.80 |
27. 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.
28. 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.
29. 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.
30. 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:
“11. The CEC, in the above background, recommends that this
Hon'ble Court may in partial modification of its earlier order
dated 10th July, 2009 consider permitting the Ad-hoc CAMPA to
annually release from the financial year 2014-2015 onwards, out
of the interest received / receivable by it, an amount equal to
10% of the principle (sic) amount lying to the credit of each of
the State / UT at beginning of the year to the respective State
CAMPA subject to the following conditions:
i) the funds will be released by utilizing interest received
/ being received by the Ad-hoc CAMPA. The principle (sic)
amount lying with the Ad-hoc CAMPA will not be released or
transferred or utilized;
ii) the funds will be released after receipt of the
"Annual Plan of Operation" containing details of the
afforestation and other works for the conservation,
protection and development of the forests and wildlife and
approved by the Steering Committee of the respective State
CAMPA;
iii) the Ad-hoc CAMPA will be at liberty to release the
funds to the State CAMPAs in one or more installments after
considering the utilization of funds earlier released;
iv) the National CAMPA Advisory Council (NCAC) will
finalize and issue guidelines before 31st March, 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;
v) the State CAMPAs and the MoEF will expeditiously take
necessary follow up action on the observations made in the
"Report of the Comptroller and Auditor General of India on
Compensatory Afforestation in India".
vi) the back log of Compensatory Afforestation, if any,
will be tackled on priority basis and for which adequate
provision will be made in the Annual Plan of Operation
(APO) by the respective State CAMPAs; and
vii) the annual release of funds to the National CAMPA
Advisory Counsel (NCAC) will continue to be upto Rs. 50
crore and provided the amounts earlier released are found
to have been substantial utilized.”
The aforesaid recommendations have been given by the CEC after
setting out the background in which the CAMPA was set up.
31. 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.
32. 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.
33. 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.
34. The Interlocutory Applications are disposed of with the aforesaid
directions.
…………………………….…J.
[A.K.Patnaik]
………………………………….J.
[Surinder Singh Nijjar]
……..……………………………….J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
March 12, 2014.
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[1] 1997 (1) SCC 388
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35
