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2015 DIGILAW 239 (RAJ)

Data Ram Yadav v. State of Rajasthan

2015-01-27

PRAKASH GUPTA, SUNIL AMBWANI

body2015
Judgment : 1. We have heard learned counsel appearing for the parties. 2. In this writ petition, filed in public interest, the petitioners-residents of the Tehsil Behror, District Alwar, and alleged themselves to be representatives of various villages of Tehsil Behror, have prayed for following reliefs: “(i) By issuing an appropriate writ, order of direction this writ petition may kindly be allowed and the respondents be directed not to allow any development of abadi in forest area of Nangla Rudh of Tehsil Behror Distt. Alwar and the aforesaid forest area be ordered to be protected by the respondents and any development work of construction of road, buildings and permitting inhabitation of displaced persons in the aforesaid area be quashed and set aside and the respondents be permanently restrained not to allow abadi in the forest area of Nangla-Rudh, Tehsil Behror District Alwar. (ii) By an another appropriate writ order, or direction which this Hon'ble Court may deem think fit and proper may kindly be passed in favour of the petitioners. (iii) Cost of the writ petition may also be awarded in favour of the petitioners from the respondents. (iv) By an appropriate writ order of direction, the impugned order dated 23/8/2006 be quashed and set asided and the land of Nangla Rundh forest of Tehsil Behror Distt. Alwar may be kept intact as forest and may not be permitted to be used for non-forest purposes for constructions of buildings etc.” 3. It is stated that the residents of two forest villages namely, Bhagani and Kankwari in the “Sariska Wildlife Sanctuary”, at a distance of about 100 k.m. from Tehsil Behror, District Alwar, have been rehabilitated in an area of 222.67 hectares by de-reserving the forest land at Nangla Rundh (Reserved Forest), in Behror Tehsil, District Alwar, without following the procedure prescribed in the Forest (Conservation) Act, 1980, and the procedure prescribed in the notification of the Ministry of Environment & Forest, Government of India dated 14.09.2006 under sub-rule (iii) of Rule 5 of the Environment (Protection) Rules, 1986. 4. It is submitted that the rehabilitation of human settlements in villages Bhagani and Kankwari in the “Sariska Wildlife Sanctuary” in Tehsil Behror by de-reserving the forest, was illegal and arbitrary. No efforts were made to find out the alternative land, which may be available in the nearby forests, from where the villagers of Village Bhagani and Kankwari were displaced. 5. It is submitted that the rehabilitation of human settlements in villages Bhagani and Kankwari in the “Sariska Wildlife Sanctuary” in Tehsil Behror by de-reserving the forest, was illegal and arbitrary. No efforts were made to find out the alternative land, which may be available in the nearby forests, from where the villagers of Village Bhagani and Kankwari were displaced. 5. It is further submitted that the resettlement on the relocated forest land was made after cutting down the trees, and that large number of residents, who have been resettled, have raised constructions on the land, on which they have been rehabilitated, as the land is adjacent to the National Highway No.8. 6. Replies have been filed by the State-respondents as well as the Forest Department. In the reply filed by Shri Ram Karan Khairwa, Assistant Conservator of Forest, Tiger Project Sariska, District Alwar, who has defended the resettlement, the procedure followed is detail is given as follows: “3. That the contents of para – 3 of the writ petition (PIL) are not admitted as stated therein. As per the report of the S.D.O. Thanagazi Alwar for the rehabilitation of the displaced persons, no vacant Nazool Land is available in Tehsil Thanagazi. The copy of the Report of the S.D.O. Thanagazo, Alwar will be kept readily available at the time of arguments. 4. That the contents of para – 4 of the writ petition (PIL) are replied in terms that apart from the area of Nangla Rudha in Tehsil Bahror, about 881.30 hect. of land has been declared as protected Forest 1326.74 hect. as Unclassified Forest and thus there is total 2207.04 hect. of forest area in Tehsil Bahrore. 5. That the contents of para – 5 of the writ petition (PIL) are replied in terms that in respect to the Sawai Chak land the report of the S.D.O. Thanagazi has been obtained and since appropriate Sawai Chak land was not available for the rehabilitation of displaced persons and therefore the land, situated in Nangla Rudh, has been selected for the purpose of rehabilitation. 6. That the contents of para – 6 of the writ petition (PIL) are replied in terms that in the forest area of Nangla Rundh, mainly the trees of P. Juliflora and Khejri were standing and only the tree/ shrubs of the (Prosopis Juliflora) have been uprooted and the other trees have not been cut down. 7. 6. That the contents of para – 6 of the writ petition (PIL) are replied in terms that in the forest area of Nangla Rundh, mainly the trees of P. Juliflora and Khejri were standing and only the tree/ shrubs of the (Prosopis Juliflora) have been uprooted and the other trees have not been cut down. 7. That the contents of para – 7 of the writ petition (PIL) are not admitted as stated therein and replied in terms that the grass of the forest land is not being used for grazing purpose of Goshala. 8. That the contents of para – 8 of the writ petition (PIL) are replied in terms that only the trees of (Prosopis Juliflora) have been removed and the other species of trees/ plants have not been removed from the area. The decision for the rehabilitation of the displaced persons in the Nangla Rundha area have been taken as per the Management Plan of the “Sariska Tiger Reserve” and for this the required sanction has been obtained from the respondent No.5. 9. That the contents of para – 9 of the writ petition (PIL) are not disputed to the extent that prior permission of the Central Government for using the forest land for Non-Forestry work but for the rehabilitation of the displaced persons of Sariska Tiger Reserve area in the Nangla Rundh forest area, sanction of the Central Government has been obtained as per rules and thereafter the proceedings for rehabilitation has been initiated. 10. That the contents of para – 10 of the writ petition (PIL) are replied in terms that for the rehabilitation of the displaced persons of Sariska Tiger Reserve area in the Nangla Rundh forest area, sanction of the Central Government has been obtained as per rules and thereafter the proceedings for rehabilitation has been initiated. 11. That the contents of para – 11 of the writ petition (PIL) are replied in terms that the decision to settle the villages out of the Sariska Tiger Reserve Project is the policy decision of the government and in order to reserve the forest area of Project Tiger, decision has been taken to settle the villages out of the Project Tiger and for this purpose provisions have also been made in the Management Plan. In the area of Nangla Rundh, only the trees and shrubs of P. Juliflora have been removed and the other trees have been kept as it is. Provisions have also been made in the site plan to develop the Green Belt so as to maintain Environment Balance.” 7. In the reply filed by the Forest Department, supported by affidavit of Shri Devendra Pratap Jogawat, Deputy Conservator of Forest Relocation, Sariska, District Alwar, it is stated that in pursuance to the directions issued by the Supreme Court, for saving the environment of the protected area of “Tiger Project in Sariska”, proposals were made for diversion of 222.67 hectares of forest land at Nangla Rundh (Reserved Forest), Alwar; to resettle the human settlements in villages Bhagani and Kankwari, to be displaced due to preservation and protection of the areas covered under the Tiger Project in Sariska. The permissions for resettlement were obtained on the recommendations of the Advisory Committee of the Central Government vide letter dated 23.08.2006 of the Assistant Inspector General of Forest, Ministry of Environment & Forest (F.C. Division), Government of India, and for which the recommendations were also made for exemption from payment of Net Present Value (for short, 'NPV') for relocation of villagers from National Parks/Sanctuaries on 28.04.2006. Paragraph Nos.1 to 4 of the aforesaid affidavit are quoted as under: “1. That content of Para 1 of the rejoinder to reply of Writ Petitions are not admitted as stated. The correct facts are that a proposal for diversion of 222.67 ha. of forest land at Nangla Rundha (RF), Behror Tehsil, Alwar Forest Division was forwarded by State Government to the Central Government for relocation and rehabilitation of forest villages namely Bhagani and Kankwari under section 2 of Forest (Conservation) Act, 1980. This proposal was examined by the Forest Advisory Committee of the Central Government under section-3 of the aforesaid act. The proposal was considered by the Ministry of Environment & Forest, Government of India after compliance of various conditions of the ministry by the State Government, The Central Government approved the diversion of above forest land under section 2 of Forest (Conservation) Act 1980. Therefore, section 2 of Forest (Conservation Act 1980 was followed for the diversion of the above forest land. Therefore, section 2 of Forest (Conservation Act 1980 was followed for the diversion of the above forest land. It is pertinent to mention that this project was not a commercial project and the “CENTRAL EMPOWERED COMMITTEE (CONSTITUTED BY THE HON'BLE SUPREME COURT OF INDIA)” had regarded it as a special project and recommended on 28.04.2006 that _ “After considering that the relocation of villages helps conservation of natural resources, National Parks and Sanctuaries in the big way and results in significant improvement use of forest land for relocation of villages from National Parks/Sanctuaries should not be treated at par with other development activities and therefore the State Government should be exempted from payment of NPV in such cases”. The photo copy of letter dated 28.04.2006 alongwith the recommendation of the Hon'ble Central Empowered Committee is submitted herewith and marked as ANNEXURE R/1. In the light of above submission the State Governments were exempted from payment of NPV in all the cases where forest land is required for relocation of villages from the protected areas. It is also submitted that this area is a plain land and found suitable for rehabilitation of villagers/agriculture. There was no suitable land available for rehabilitation/ agriculture in Thanagazi Tehsil, which is clear from the letter of Sub Divisional Officer, Thanagazi, District Alwar. The photo copy of letter dated 04.04.2008 is submitted herewith and marked as ANNEXURE R/2. The land is mainly used for agriculture and it was so developed that it meets the fodder requirement of the cattle reared by the relocated families. The diverted area was mainly covered with Prosopis juliflora, which considered to be useful for fuelwood purpose, therefore there was no question of ecological imbalance would happen by removing existing vegetation. 2. That the content of Para 2 of the rejoinder to reply of the Writ Petition are not admitted as stated. It is submitted that Relocation of villages from National Parks/ Sanctuaries is not in the list of projects or activities requiring prior environmental clearance, therefore it was not considered for environment clearance. The Central Government also did not consider it for environment clearance, otherwise it had been mentioned as a condition before approval. 3. That the contents of Para 3 of the rejoinder to reply of the Writ Petition are not admitted as stated. The Central Government also did not consider it for environment clearance, otherwise it had been mentioned as a condition before approval. 3. That the contents of Para 3 of the rejoinder to reply of the Writ Petition are not admitted as stated. It is submitted that the land comes under the category of reserve forest and diversion of such land for non forestry purpose can be made with the prior approval of the central government under section 2 of Forest (Conservation) Act 1980. 4. That the contents of Para 3 of the rejoinder to reply of the Writ Petition are not admitted as stated. It is submitted that all the conditions laid down in the order dated 23.06.2006 had been followed and land is used mainly for rehabilitation/ relocated villages and for agriculture purpose, except limited house construction for relocated families for their own use. No commercial activity has been allowed on the diverted forest land. The Prayer clause is denied. The petitioner is not entitle for any relief whatsoever prayed by him in the present Writ Petition. The Writ Petition is liable to be dismissed on the grounds mentioned hereinbefore.” 8. It is submitted by learned counsel appearing for the petitioners that the relocation and settlement have been made in violation of the notification dated 14.09.2006 of the Ministry of Environment & Forest issued under sub-rule (iii) of Rule 5 of the Environment (Protection) Rules, 1986. No effort was made to find out alternative land nearby the villages, from where the persons were relocated and resettled, and further that the persons, who have been relocated and resettled, have raised constructions, as the land, which was cleared and allotted to them is adjoining the industrial area of Behror, District Alwar. 9. A preliminary objection has been raised by learned counsel appearing for the State-respondents that the matter should be transferred to be heard by the National Green Tribunal under section 14 of the National Green Tribunal Act, 2010. 10. 9. A preliminary objection has been raised by learned counsel appearing for the State-respondents that the matter should be transferred to be heard by the National Green Tribunal under section 14 of the National Green Tribunal Act, 2010. 10. We do not find it appropriate to refer the matter to the National Green Tribunal, both on the grounds that the sufficient facts have been made to the Court in this matter by way of replies filed by the respondents, to decide the writ petition, and further on the ground that there is no existing dispute, which is required to be settled to refer the matter under section 14 of the National Green Tribunal Act, 2010. 11. It is submitted by Shri R.D.Rastogi, learned Additional Solicitor General appearing for the Forest Department that in view of the orders of the Supreme Court, in order to protect the environment of the “Sariska Wildlife Sanctuary”, and to protect the Tiger population, which is getting reduced, and to save the endangered animal, the proposals were initiated to resettle the villagers of Village Bhagani and Kankwari by following the procedure under section 14 of the National Green Tribunal Act, 2010. He submits that out of the area of reserved forest, of 881.30 hectares (protected area) and 1326.74 hectares (unclassified area), (total area 2208.04 hectares), an area of 222.67 hectares, was sought to be de-reserved for relocation and rehabilitation of residents of Village Bhagani and Kankwari under section 2 of the Forest (Conservation) Act, 1980. The recommendations of the Advisory Committee of the Central Government, which had accorded in principal approval vide letter dated 30.04.2005, and the recommendations of the Central Empowered Committee were obtained before de-reserving an area of 222.67 hectares of forest land at Nangla Rundh (Reserved Forest), Behror, District Alwar under section 2 of the Forest (Conservation) Act, 1980. 12. We have considered the submissions and do not find any infraction of the Rules and the orders of Hon'ble Supreme Court, in diversion of 222.67 hectares of forest land at Nangla Rundh (Reserved Forest) Behror, District Alwar for relocation and rehabilitation of forest villages namely, Bhagani and Kankwari, outside the “Sariska National Park”, Rajasthan. The necessary approval of the Advisory Committee of the Central Government was obtained by letter dated 30.04.2005, and that the Central Empowered Committee constituted by the Hon'ble Supreme Court in T.N.Godavarman Thirumulpad vs. Union of India & Ors. The necessary approval of the Advisory Committee of the Central Government was obtained by letter dated 30.04.2005, and that the Central Empowered Committee constituted by the Hon'ble Supreme Court in T.N.Godavarman Thirumulpad vs. Union of India & Ors. [Writ Petition (Civil) 202 of 1995, vide judgment dated 28.03.2008], has given its consent as well as exemption for NPA, before diversion of the forest land. 13. The Central Empowered Committee had considered the relocation of the villages from the area falling within the National Parks/Sanctuaries is an important part of the wildlife management, which leads to consolidation of the fragmented habitant. For use of the forest land to relocation of villages, approval under the Forest (Conservation) Act, 1980 was given by the Ministry of Environment & Forest. The NPV is payable at the time of such approval. After considering that the relocation of the villages helps conservation of natural resources, National Parks and Sanctuaries in a big way, and results in significant improvement for use of forest land for relocation of villages from the National Parks/Sanctuaries, the considerations such as payment of NPV, was not found to be at par with other developmental activities. The Central Empowered Committee, in its deliberations dated 28.04.2006, has exempted the payment of NPV in the cases of relocation of villagers from National Park/Sanctuaries. The National Empowered Committee decided in its deliberations dated 28.04.2006 as follows: “Considering the above, it is recommended that, subject to final order of this Hon'ble Court on the report of the Expert Committee constituted in IA No. 566 regarding the NPV, the MoEF may be permitted to approve diversion of forest land under the FC Act for relocation of villages from the National Parks/Sanctuaries without payment of NPV.” 14.. We do not find that the diversion of 222.67 hectares of forest land of Nangla Rundh (Reserved Forest), Behror, District Alwar, has, in any way, violated the conditions of the Notification issued by the Ministry of Environment & Forest dated 14.09.2006, which provides for a detailed procedure for grant of environment clearance, by screening, scoping, public consultation and appraisals, before the grant. In the Notification dated 14.09.2006 issued by Ministry of Environment & Forest, the grant of environment clearance is subsequent to the approval given by the Ministry of Environment & Forest (F.C.Division) dated 23.08.2006 for diversion of a subject land at Nangla Rundh (Reserved Forest), Behror, District Alwar, Forest Division. In the Notification dated 14.09.2006 issued by Ministry of Environment & Forest, the grant of environment clearance is subsequent to the approval given by the Ministry of Environment & Forest (F.C.Division) dated 23.08.2006 for diversion of a subject land at Nangla Rundh (Reserved Forest), Behror, District Alwar, Forest Division. Further, we find that the Notification dated 14.09.2006 of Ministry of Environment & Forest, is not applicable to resettlement/relocation of the villagers from the National Parks/Sanctuaries, reserved to the forest, in which the land is sought to be diverted. The Notification dated 14.09.2006 is applicable to projects and activities in category 'A' & 'B'. Category 'A' in the Schedule includes modernization of existing projects or activities and any change in project – mix in an existing manufacturing unit the Category 'B' in the Schedule, includes expansion and modernization of all existing projects or activities as specified in sub-paragraph (ii) of Paragraph-2, or change in project mix. Both the categories relates to the projects/activities, which are in the nature of mining and industrial activities, and which may require constructions and setting up of plants. In the present case, as observed in the affidavit, filed by the Forest Department, the relocation and resettlement have been made with a condition that the land will be used for agriculture, and to meet the fodder requirement of the cattle reared by the relocated families. It is further stated in the affidavit that the diverted area was mainly covered with growth of Prosopis Juliflora, which considered to be useful for fuelwood purpose, and therefore, there was no question of disturbing ecological imbalance, which may happen by removing existing vegetation. 15. We may further observe here that the petitioner has not given the number of the persons, who have been relocated, and the manner in which they are making an alleged attempt to vacate, by degrading the area. Some photographs have been filed with the rejoinder to demonstrate that the relocated and resettled persons are raising constructions. We do not find that these photographs depict any kind of residential or industrial activities in the concerned area, which may have degraded the environment. 16. We may also observe here that the conditions, under which the land was sought to be diverted, protect the environment of the forest. We do not find that these photographs depict any kind of residential or industrial activities in the concerned area, which may have degraded the environment. 16. We may also observe here that the conditions, under which the land was sought to be diverted, protect the environment of the forest. The conditions in the letter of the Ministry of Environment & Forest (F.C.Division) Government of India dated 23.08.2006 are given as under: “1. The land to be used for agriculture should be so developed that it meets the fodder requirement of the cattle reared by the families to be shifted. Practice of stall-feeding should be adopted as far as possible. 2. After relocation, the area to be vacated by the villages should be reverted back to wildlife habitat. 3. Forest land will not be de-reserved. 4. The relocated persons shall be conferred heritable but inalienable rights. 5. The administration of such relocated areas shall be entrusted to the State Forest Department. 6. Any other condition that CCF (Central), Regional Office, Lucknow may impose from time to time for protection improvement of flora and fauna in the forest area, shall also be applicable.” 17. In the pleadings of the writ petition, there are no positive averments to the effect that any of these conditions have been violated, to issue any directions to protect the environment of the forest. 18. In view of the aforesaid discussion, the writ petition is dismissed, with liberty to the petitioners to approach the Court, after making proper representation to the concerned authorities, if any of the aforesaid condition or conditions is violated, by the persons, who have been relocated and resettled in the Nangla Rundh (Reserved Forest), Behror, District Alwar, or by any other persons. 19. The writ petition is dismissed with the aforesaid observations.