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The symbolic launch ceremony for the Arihant was held on on July 26, 2009 marked the anniversary of Vijay Diwas (Kargil War Victory Day). It was reported that the nuclear reactor and other systems were not included at the time of the submarine's launch. Navy chief Admiral Nirmal Verma said in December 2009, "Work is in progress to make INS Arihant operational for sea-trials...it should be inducted in two years or so." In 2010, the submarine begun its sea trials. Full integration of key systems and Sea trials are expected to be extensive. The submarine is not expected to formally join the Indian Navy earlier than 2011.[3]
The name of the vessel, Arihant is in Sanskrit and literally translates into destroyer of enemies. The completion of the INS Arihant will make India one of six countries in the world with the ability to design, build, and operate its own nuclear submarines (the others being the United States, the UK, Russia, France, and China).
Design
The INS Arihant is to be the first of the expected five in the class of submarines designed and constructed as a part of the Indian Navy's secretive Advanced Technology Vessel (ATV) Project. The submarine is reported to be similar to the Russian Charlie-II class submarine, which India leased from the Soviet Union between 1988 and 1991.[4]Arihant will be more of "a technology demonstrator", rather than a fully-operational SSBN according to Admiral Verma.[5]
The vessel will be powered by an 85 MW pressurized water reactor with enriched uranium fuel.[6] A land-based prototype of the reactor was first built at Kalpakkam and made operational in September 2006. Successful operation over a period of three years yielded the data that enabled the production version for Arihant.[7][8] It was reported that a 80MW nuclear reactor was integrated into the hull of the ATV in January 2008.[9]
The hull for the vessel was built by L&T's Hazira shipbuilding facility. Tata Power built the control systems for the submarine. The systems for the steam turbine integrated with the reactor are supplied by Walchandnagar Industries.[10]
Launch
The INS Arihant, was introduced to the public on July 26, 2009 at a symbolic launch ceremony by Prime Minister Manmohan Singh's wife Gursharan Kaur.[11] The launch coincided with the tenth anniversary of the conclusion of the Kargil War.[12] and consisted of floating the vessel by flooding the dry dock. It was reported that the Arihant was launched without key systems including its nuclear reactor, surveillance equipment, and ordinance.[4] Per naval tradition, Gursharan Kaur cracked a coconut on the hull to mark the launch of the submarine at the secret naval base 'Matsya' in Visakhapatnam.[13] Photography was prohibited and photos showing the complete vessel are not available.[14][15] In his address to the crowd, Prime MinisterManmohan Singh billed the submarine as an outcome of a public-private partnership. He also thanked Russia in his address stating "I would also like to express our appreciation to our Russian friends for their consistent and invaluable cooperation, which symbolizes the close strategic partnership that we enjoy with Russia".[16] The launch of INS Arihant strengthens India's endeavor to build a credible nuclear triad — the capability to fire nuclear weapons from air, land and sea.
On the condition of anonymity, a nuclear scientist familiar with the project echoed this report in response to the media coverage that India had successfully launched a completed nuclear submarine.[17] It was also expected that the duplication of India's land based reactor, integration of systems, and sea trials is expected to take three to five years.[4]
It will be commissioned in 2011, according to Indian Naval Chief.[5] The sea trials of the submarine started in January 2010, and is expected to last for a year before commissioning.[18
THEORY OF BASIC STRUCTURE What and Why Law: It is very difficult to state a single and accurate definition of the term ?law? as it is a general term and has different connotations for different people. On the one hand a common man may think of law as a set of rules he has to obey on the other hand for a judge, it is nothing but a set of guiding principles to be applied in deciding the cases. Law is everywhere, if you examine the human being life, there is ? Law Of nature?. One day everyone has to die and no one is immortal on this earth. God treats everyone equally and all the creations of god are regulated by uniform law. Same as law is necessary for the protection, peace, development and prosperity of any nation. Without law there can be no order and without order there can be no peace and progress. Without law society will be the part of jungle. Everyone will be wild, violent, and greedy and mighty has right will prevail. That?s why law is mandatory for preventing injustice. According to Blackstone, law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of action whether animate or inanimate, rational or irrational.[1] and in the words of Austin A law is a rule of conduct imposed and enforced by the sovereign. Thus these rules of conduct are essential for peaceful & prosperous living of the people in the country. Necessity of Amending Provisions in the Constitution Provisions for amendment of the constitution is made with a view to overcome the difficulties which may encounter in future in the working of the constitution. The time is not static; it goes on changing .The social, economic and political conditions of the people go on changing so the constitutional law of the country must also change in order toward it to the changing needs, changing life of the people. If no provisions were made for amendment of the constitution, the people would have recourse to extra constitutional method like revolution to change the constitution.[2]. The framers of the Indian constitution were anxious to have a document which could grow with a growing nation, adapt itself to the changing circumstances of a growing people. A R Antulay: ?The Constitution has to be changed at every interval of time. Nobody can say that this is the finality. A constitution which is static is a constitution which ultimately becomes a big hurdle in the path of the progress of the nation?. Restriction on parliament power of Amending Provisions in the Constitution and Judicial Review The framers of the Indian constitution were also aware of that fact that if the constitution was so flexible it would be like playing cards of the ruling party so they adopted a middle course. It is neither too rigid to admit necessary amendments, nor flexible for undesirable changes. India got independence after a long struggle in which numerous patriots sacrificed their life. They knew the real value of the freedom so they framed a constitution in which every person is equal and there is no discrimination on the basis of caste, creed, sex and religion. They wanted to build a welfare nation where the social, economical, political rights of the general person recognize. The one of the wonderful aspect of our constitution is Fundamental rights and for the protection of these rights they provided us an independent judiciary. According to constitution, parliament and state legislature in India have the power to make the laws within their respective jurisdiction. This power is not absolute in nature. The constitution vests in judiciary, the power to adjudicate upon the constitutional validity of all the laws. If a laws made by parliament or state legislature violates any provision of the constitution, the Supreme Court has power to declare such a law invalid or ultra virus. So the process of judicial scrutiny of legislative acts is called Judicial Review. Article 368 of the Constitution gives the impression that Parliament's amending powers are absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With the intention of preserving the original ideals envisioned by the constitution-makers. To Abraham Lincoln, democracy meant a Government of the people, by the people and for the people. So in democratic nation whenever any law passed by parliament violates any provision of constitution or takes away any fundamental rights of the person, the Supreme Court has right and power to strike down that law or act. According to me this jurisdiction of Supreme Court is essential for protection of basic features of the constitution. Theory Of Basic Structure The question whether fundamental rights can be amended under article 368 came for consideration in the Supreme Court in Shankari Prasad case.[3] in this case validity of constitution (1st amendment) act, 1951 which inserted inter alia , articles 31-A and 31-B of the constitution was challenged. The amendment was challenged on the ground that it abridges the rights conferred by part III and hence was void. The Supreme Court however rejected the above argument and held that power to amend including the fundamental rights is contained in Article 368and the same view was taken by court in Sajjan Singh case.[4] In Golak Nath case,[5]the validity of 17th Amendment which inserted certain acts in Ninth Schedule was again challenged. The Supreme Court ruled the parliament had no power to amend Part III of the constitution and overruled its earlier decision in Shankari Prasad and Sajjan Singh case. In order to remove difficulties created by the decision of SC in Golak Nath case parliament enacted the 24th Amendment act. The Supreme Court recognized BASIC STRUCTURE concept for the first time in the historic Kesavananda Bharati[6] case in 1973. Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by parliament. In this case validity of the 25th Amendment act was challenged along with the Twenty-fourth and Twenty-ninth Amendments. The court by majority overruled the Golak Nath case which denied parliament the power to amend fundamental rights of the citizens. The majority held that article 368 even before the 24th Amendment contained the power as well as the procedure of amendment. The Supreme Court declared that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution and parliament could not use its amending powers under Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the constitution. This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history. Basic Features of the Constitution according to the Kesavanada verdict each judge laid out separately, what he thought were the basic or essential features of the Constitution. Sikri, C.J. explained that the concept of basic structure included: # Supremacy of the Constitution # Republican and democratic form of government # Secular character of the Constitution # Separation of powers between the legislature, executive and the judiciary # Federal character of the Constitution
Shelat, J. and Grover, J. added three more basic features to this list: # The mandate to build a welfare state contained in the Directive Principles of State Policy # Unity and integrity of the nation # Sovereignty of the country.
Unegde, J. and Mukherjea, J. identified a separate and shorter list of basic features: # Sovereignty of India # Democratic character of the polity # Unity of the country # Essential features of the individual freedoms secured to the citizens # Mandate to build a welfare state
Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble Of the Constitution and the provisions into which they translated such as: # Sovereign democratic republic # Justice - social, economic and political # Liberty of thought, expression, belief, faith and worship # Equality of status and the opportunity.
He said that the Constitution would not be itself without the fundamental freedoms and the directive principles. [7]
Former Chief Justice K. Subba Rao in an article on the two judgments Golaknath and Kesavananda Bharati, expressed the view: "The existence of a remote judicial control may only act as a brake against hasty and unreasonable legislative and executive action and as a form of guarantee to the public against instability. The stability of the Constitution stabilizes the State."[8]
Basic Structure concept reaffirmed- the Indira Gandhi Election case In Indira Gandhi v. Raj Narayan[9] the Supreme Court applied the theory of basic structure and struck down cl.(4) of article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amending power of the parliament as it destroyed the ? basic feature? of the constitution. The amendment was made to the jurisdiction of all courts including SC, over disputes relating to elections involving the Prime Minister of India. Basic Features of the Constitution according to the Election case verdict Again, each judge expressed views about what amounts to the basic structure of the Constitution: Justice Y.V. Chandrachud listed four basic features which he considered unamendable: # Sovereign democratic republic status # Equality of status and opportunity of an individual # Secularism and freedom of conscience and religion # 'government of laws and not of men' i.e. the rule of law Justice H.R. Khanna- ?democracy is a basic feature of the Constitution and includes free and fair elections.? Basic structure doctrine reaffirmed - the Minerva Mills
In Minerva Mills case[10] the Supreme Court by majority by 4 to 1 majority struck down clauses(4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution In L. Chandra Kumar case [11] a larger Bench of seven Judges unequivocally declared "That the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure". Conclusion Now we can say, there is no hard and fast rule for basic feature of the Constitution. Different judge keep different views regarding to theory of basis structure. But at one point they have similar view that parliament has no power to destroy, alter, or emasculate the 'basic structure' or framework of the constitution. ?If the historical background, the preamble, the entire scheme of the constitution and the relevant provisions thereof including article 368 are kept in mind then there can be no difficulty, in determining what are the basic elements of the basic structure of the constitution. These words apply with greater force to doctrine of the basic structure, because, the federal and democratic structure of the constitution, the separation of powers, the secular character of our state are very much more definite than either negligence or natural justice.?[12].So for the protection of welfare state, fundamental rights, Unity and integrity of the nation, Sovereign democratic republic and for Liberty of thought, expression, belief, faith and worship, interpretation of judiciary is mandatory. We can say none is above constitution even parliament and judiciary.
I. Forest (Conservation) Act, 1980 with Amendments Made in 1988
An Act to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto.
Be it enacted by Parliament in the Thirty-first Year of the Republic of India as follows:-
1. Short title, extent and commencement.
(1) This Act may be called the Forest (Conservation) Act, 1980.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall be deemed to have come into force on the 25th day of October, 1980.
2. Restriction on the dereservation of forests or use of forest land for non-forest purpose.
Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing-
(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.
Explanation - For the porpose of this section, "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for-
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;
(b) any purpose other than reafforestation;
but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.
3. Constitution of Advisory Committee.
The Central Government may constitute a Committee consisting of such number of persons as h may deem fit to advise that Government with regard to-
(i) the grant of approval. under Section 2; and
(ii) any other matter connected with the conservation of forests which may be referred to h by the Central Government.
3A. Penalty for contravention of the provisions of the Act.
Whoever contravenes or abets the contravention of any of the provisions of Section 2, shall be punishable with simple imprisonment for a period which may extend to fifteen days.
3B. Offences by the Authorities and Government Departments.
(1) Where any offence under this Act has been committed -
(a) by any department of Government, the head of the department; or
(b) by any authority, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the authority for the conduct of the business of the authority as well as the authority;
shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render the head of the department or any person referred to in clause (b), liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence punishable under the Act has been committed by a department of Government or any authority referred to in clause (b) of sub-section (1) and it is proved that the offence has been committed with the consent or connivance of; or is attributable to any neglect on the part of any officer, other than the head of the department, or in the case of an authority, any person other than the persons referred to in clause (b) of sub-section (1), such officer or persons shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
4. Power to make rules.
(1) The Central Government may, by notification in the Official Gazette, makes rules for carrying out the provisions of this Act.
(2) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
5. Repeal and saving.
(1) The Forest (Conservation) Ordinance, 1980 is hereby replaced.
(2) Notwithstanding such repeal, anything done or any action taken under the provisions of the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.
6. Application of Forest (Conservation) Act , 1980.
1.1 Definition.
(i) The term ‘Forest land’ mentioned in Section 2 of the Act refers to reserved forest, protected forest or any area recorded as forest in the government records. Lands which are notified under Section 4 of the Indian Forest Act would also come within the purview of the Act. (Supreme Court’s Judgment in NTPC’s case). It would also include “Forest “ as understood in the dictionary sense (Supreme Court order dated 12.12.1996 in WP No.202/1995-Annexure-I). All proposals for diversions of such areas to any non- forest purpose, irrespective of its ownership , would require the prior approval of the Central Government.
Clarification;- The term “forest” shall not be applicable to the plantations raised on private lands, except notified private forests. However, felling of trees in these private plantation shall be governed by various State Acts and Rules. Felling of trees in notified private forests will be as per the working plan/management plan duly approved by Government of India.
(ii) The “tree” for the purpose of this Act will have the same meaning as defined in Section 2 of the Indian Forest Act, 1927 or any other Forest Act may be in
force in the forest area under question.
1.2 Clarification
(i) The cases in which specific orders for de-reservation or diversion of forest areas in connection with any project were issued by the State Government prior to 25.10.1980, need not be referred the Central Government. However, in case
where only administrative approval for the project was issued without specific orders regarding dereservation and/or diversion of forest lands, a prior approval of the Central Government would be necessary.
(ii) Harvesting of fodder grasses, legumes etc which grow naturally in forest areas, without removal of the tree growth, will not require prior approval of the 2 Central Government. However, lease of such areas to any organization or individual would necessarily require under the Act.
(iii) The forest policy, as well as provisions of the Forest (Conservation) Act,1980,
do not interfere in any manner or restrict the Nistar, recorded rights, concessions and privileges of the local people for bonafide domestic use as granted by the State Government under India Forest Act,1927 or State Forest Act/Regulations. However, it has to be ensured that while allowing such rights, concessions and privileges to be exercised, the right holders do not resort to felling of trees or break up the forest floor so as to procure stones, minerals, or take up constructions, etc The forest produce so obtained shall be utilized for any commercial purposes.
The collection of such forest produce should be manual and should be transported through local modes or transport like bullock carts, camel carts, etc and no mechanized vehicles shall be allowed to be used in transporting such forest produce and only in exceptional cases with approval of concerned Divisional Forest Officers, tractors mounted with trolley may be used.
Clarification:- The Supreme Court has passed an order on 14.02.2000 restraining removal of dead, diseased, dying or wind- fallen trees, drift wood and grasses etc from any National Park or Game Sanctuary…” Annexure-II A may be referred to. In view of this rights and concessions cannot be enjoyed in the Protected Area (Pas).
1.3 Investigation and Survey.
(i) Investigation and surveys carried out in connection with development projects such as transmission lines, hydro-electric projects, seismic surveys, exploration for oil drilling, mining etc will not attract the provisions of the Act as long as these surveys do not involve any clearing of forest or cutting of trees, and operations are restricted to clearing of bushes and lopping of tree branches for purpose of signing.
(ii) If, however, investigation and surveys involve clearing of forest area or felling of trees, prior permission of the Central Government in mandatory.
(iii) Notwithstanding the above, survey, investigation and exploration shall be carried out in wildlife sanctuaries, national parks and sample plots demarcated by the Forest Department without obtaining the prior approval of the Central Government, whether or not felling of trees is involved.
Clarification:- The Supreme Court has passed several orders regarding taking up of non- forestry activities in the National Parks/Sanctuaries. Annexure-II A may be referred to. In view of this, the State Government should not submit any proposal for diversion of forest land in National Parks and Sanctuaries without seeking prior permission of the Indian Board for Wildlife (Now National Board of Wildlife ) and Supreme Court.
(iv) The work of actual construction would however, fully attract the provisions of the Act and prior clearance of the Central Government must be obtained even if such work does not require felling of trees.
(v) Prospecting of any minerals, done under prospecting licence granted under MMDR Act, which requires collection/removal of samples from the forest land, would be a stage between survey & investigation and grant of mining lease and as such permission under Forest (Conservation) Act 1980 would be required. However, test drilling upto 10 bore holes of maximum 4” diameter per 100sq.km. for prospecting, exploration or reconnaissance operations, without felling of trees, shall not attract the provisions of the Act. In all other cases involving more number of drilling of bore holes, prior permission of the Central Government under the Act would be required.
(vi) It is clarified that the permission to survey, exploration or prospection would not ipso facto imply any commitment on the part of the Central Government for diversion of forest land.
1.4 Explanation Regarding Non-Forest purpose.
(i) Cultivation of tea, coffee, species, rubber and palm is a non- forestry activity, attracting the provisions of the Act.
(ii) Cultivation of fruit-bearing trees or oil-bearing plants or medicinal plants would also require prior approval of the Central Government except when.
(a) The species to be planted are indigenous to the area in a question; and
(b) Such planting activity is part over all Afforestation programme for the forest area in question.
1.5 Tusser Cultivation
(i) *Tusser cultivation in forest areas by the tribals as a means of their livelihood without undertaking monocultural Asan or Arjun plantation shall be treated as a forestry activity. Therefore, no prior approval of the Central Government under the Act is necessary.
(ii) *Tusser cultivation in forest areas for which specific plantation of Asan or Arjun trees are undertaken for providing host trees to the silk cocoons shall be treated as forestry activity not requiring prior approval of the Central Government provided such plantation activity does not involve any felling or existing trees; provided further that while undertaking such plantations, at least three species are planted, of which no single species shall cover more than 50% of the planted area
(iii) Plantation of mulberry for silkworm rearing is a non- forestry activity the provisions of the Act.
1.6 Mining
(i) Mining including underground mining is a non- forestry activity. Therefore, prior approval of the Central Government is essential before a mining lease in respect of any forest area. The Act would apply not only to the surface area which is used in the mining but also to the entire underground mining area beneath the forest. A renewal of an existing mining lease in a forest area also requires the prior approval of the Central Government. Continuation or resumption of mining operation on the expiry of a mining lease without prior approval would amount to contravention of the Act.
(ii) The advice o the Ministry of Law, Government of India in regard to the Supreme Court Order in Civil Appeal NO>2349 of 1984 dated.7.5.1985 is at Annexure-III
(iii) Boulders, bajri, stone, etc., in the riverbeds located within forest areas would constitute a part of the forest land and their removal would require prior approval of the Central Government.
LAW DEPARTMENT'S ADVICE IN REGARD TO MINING LEASES
i. In respect of the mining operations being carried out on forest lands leased before the commencement of the Forest (Conservation) Act,1980 during the continuance of the lease period, the approval of the Central Govt. under Section 2 of the said Act is not required.
ii. A renewal of a lease is really the grant of a fresh lease. [See State of Tamil Nadu Vs Hind Stones etc. delivered on February 5, 1981 (S.C. Reports pp 742-70) and Samatha Vs State of Andhra Pradesh and others delivered on July 11, 1997]. The prior approval of the Central Govt. in terms of section 2 of the Forest (Conservation)Act,1980 would be required when a mining lease granted before the commencement of the said Act is renewed after its coming into force.
iii. As held by the Supreme Court in State of Bihar Vs. Banshi Ram Modi (supra), prior approval of the Central Govt. in terms of Section 2 of the Forest (Conservation)Act,1980 would not be required for mining and winning any new mineral from a forest land leased for mining before the commencement of the said Act during the leased period originally granted, if the said land is already broken up or cleared before the commencement of the Act. Otherwise, the prior approval of the Central Govt. under Section 2 of the said Act would be required.
1.7 Clarification on Sub-clause 2 (iii) of the Act.
(i) the Sub-clause shall not be attracted when any forest land or any portion thereof is assigned to any authority, corporation, agency or any other organization wholly owned, managed or controlled by the concerned State/Union Territory Government and/agency, which has been assigned such forest land shall not reassign it or any part thereof to any other organization or individual.
(ii) Any scheme or protect which involves assignment of any forest land by way of lease or similar arrangement, for any purpose whatsoever, including afforestation, to any private person or to any authority/agency/organization not wholly owned, managed or controlled by the Government (such as private or joint sector ventures) shall attract the provisions of this sub-clause.
1.8 Clarification on sub-clause 2(iv) of the Act
(i) Sub-clause 2(iv) of the Act prohibits clearing of naturally grown trees in forest land for the purpose of using it for reforestation. The provisions of this subclause will be attracted if the forest area in question bears naturally grown trees and are required to be clear-felled, irrespective of this size, for harnessing existing crop and/or raising plantation through artificial regeneration techniques, which may include copping, pollarding or any other mode of vegetative propagation.
(ii) All proposals involving clearing of naturally grown trees in any forest area, including for the purpose of reforestation, shall be sent by the concerned State/UT Government in the form of Management Plans/Working Plan to the Regional Chief Conservator of Forests of the concerned Regional Office of the Ministry of Environment and Forests.
(iii) All proposals in respect of sanction of Working Plans/Management Plans shall be finally disposed of by the Regional Office, under Section 2 of the Act. While examining the proposal, the Regional Office would ensure that the final decision is in conformity with the National Forest Policy, Working Plan guidelines and other relevant rules and guidelines issued by the Central Government from time to time. The Regional Office will however, invariable seek prior clearance of the Ministry whenever the proposal involves clearfelling of forest area having density above 0.4 irrespective of the area involved. Also , prior clearance would be required when the proposal is for clear felling of an area of size mote than 20ha. In the plains and 10ha in the hilly region, irrespective of density.
(iv) In national parks and sanctuaries where felling are carried for improvement of Wildlife and its habitat only, forest would be managed according to a scientifically prepared management plan approved by the Chief Wildlife Warden, provided that the removed forest produce shall be used for meeting bona fide needs of the people living in and around the National Park/Sanctuary and shall not be used for any commercial purposes. But in case where large scale felling/removal of timber and non timber products is required in a national park/sanctuary, which need disposal through sales, approval of the Central Government would be necessary. However, this shall be subject to the orders of the Supreme Court, which may be referred to at Annexure-II A.
1.9 Clarification of Section 3 B of the Act.
(i) Each case of the violation of the Act shall be reported by the concerned State/Union Territory Government to the Central Government.
(ii) The report of violation shall be described in a self-contained note and supported by requisite documents, including particularly the manes and designations of the officials/persons who are prima- facie responsible for the contravention of the Act
(iii) In case it is not possible to fix the responsibility for commission/omission of any action leading to the violation of the Act, a full explanation with relevant document shall appended to the report.
Any person and/or authority nominated by the Central Government may be required to discharge any of the duties, including prosecution under the Act in (3) dated 18.9.90 shall be strictly followed. These are included in Annexure IV-C.
(iv) any Court as may be deemed appropriate for this purpose. In such an eventuality, the Government of the concerned State/Union Territory shall make available all such records or documents as may be called upon by the investigation officer.
Clarification :- The provisions of this Section are applicable to the cases where the State Government or any authority passes any other for promoting activities covered by Section 2 of the Forest (Conservation) Act,1980 without prior approval of the Central Government. Cases of illicit felling/encroachment/illegal
mining , etc have to dealt under the provisions of the Indian Forest Act,1927, State Acts , Environment (Protection) Act,2986, etc.
1.10 Diversion of Forest Land for Regularisation of Encroachments.
(i) Detailed guidelines issued in this regard vide this Ministry’s letter NO.13-1/90- .FP(1) dated 18.9.90 shall be strictly followed. These are included in Annexure IV.
(ii) The State Government/UT Administrations may send the proposals as follows:-
(a) A consolidated proposal for the whole State in the prescribed application form.
(b) Detailed information as per the enclosed Table/format – Annexure –IV A . Division wise proposals, maps, names encroachers, etc. should be kept ready at Division level, which may be made available whensoever required for inspection and need not be appended with the consolidated proposal.
(c) Detailed compensatory Afforestation scheme with areas proposed for raising compensatory Afforestation Division-wise, phased planning, fund requirement, commitment of the State Government to provide funds for the purpose, etc Maps of proposed areas for compensatory afforestation should be kept already at Division level, which may be made available whensoever required for inspection
(d) A time plan foe eviction of ineligible encroachers.
1.11. Regularisation Of Encroachments On Forest Land
1. Encroachment of forest land for cultivation and other purposes continues to be the most pernicious practice endangering forest resources throughout the country. Statistical information compiled by Ministry of Agriculture during early 1980s revealed that nearly 7 lakh hectares of forest land was under encroachment in the country about a decade back. This is despite the fact that prior to 1980, a number of States had regularised such encroachments periodically and approximately 43 lakh hectares of forest land was diverted for various purposes between 1951 and 1980, more than half of it for agriculture. The decisions of the State Government to regularise encroachments from time to time seem to have acted as strong inducement for further encroachments in forest areas and the problem remained as elusive as ever for want of effective and concerted drive against this evil practice.
2 The National Forest Policy, 1988 has also observed the increasing trend in encroachments on forest land and stated that these should not be regularised. Implementation of this pronouncement has been examined by this Ministry keeping in view the constraints of various State Governments some of whom have expressed that they stand committed to regularise encroachments of a period prior to 1980. The issue figured prominently in the Conference of the Forest Ministers held in May, 1989 and was later examined by an inter-Ministerial Committee, set up by this Ministry in consultation with the representatives of some of the States. Keeping in view the recommendations of the Forest Ministers' Conference and the committee referred to above, and with due approval of the competent authority, the following measures are suggested for review of the old
encroachments and effective implementation of the pronouncement made in this regard in the National Forest Policy, 1988.
3. All the cases of subsisting encroachments where the State Governments stand committed to regularise on account of past commitments may be submitted to this Ministry for seeking prior approval under the Forest (Conservation) Act, 1980. Such proposals should invariably conform to the criteria given below:
1.12. PRE-1980 ENCROACHMENTS WHERE THE STATE GOVERNMENT HAD TAKEN A DECISION BEFORE ENACTMENT OF THE FOREST (CONSERVATION) ACT, 1980, TO REGULARIZE `ELIGIBLE' CATEGORY OF ENCROACHMENTS.
1.1 Such cases are those where the State Governments had evolved certain eligibility criteria in accordance with local needs and conditions and had taken a decision to regularise such encroachments but could not implement their decision either wholly or partially before the enactment of the Forest (Conservation) Act, on 25.10.80.
1.2 All such cases should be individually reviewed. For this purpose the State Government may appoint a joint team of the Revenue, Forest and Tribal Welfare Department for this work and complete it as a time-bound programme.
1.3 In case where proposals are yet to be formulated, the final picture after taking into considerations all the stipulations specified here may be placed before the concerned Gaon Sabha with a view to avoid disputes in future.
1.4 All encroached lands proposed for regularisation should be properly surveyed.
1.5 Encroachments proposed to be regularised must have taken place before 25.10.1980. This must be ascertained from the First Offence Report issued under the relevant Forest Act at that point of time.
1.6 Encroachments must subsist on the field and the encroached land must be under continuous possession of the encroachers.
1.7 The encroacher must be eligible to avail the benefits of regularisation as per the eligibility criteria already fixed by the State.
1.8 As far as possible scattered encroachments proposed to be regularised should be consolidated/relocated near the outer boundaries of the forests.
1.9 The outer boundaries of the areas to be denotified for regularisation of encroachments should be demarcated on the ground with permanent boundary marks.
1.10 All the cases purposed to be regularised under this category should be covered in one proposal and it should give district-wise details.
1.11 All cases of proposed regularisation of encroachments should be accompained by a proposal for compensatory afforestation as per existing guidelines.
1.12 No agricultural practices should be allowed on certain specified slopes.
1.13. `INELIGIBLE' CATEGORY OF PRE-1980 ENCROACHMENTS WHERE THE STATE GOVERNMENTS HAD TAKEN A DECISION PRIOR TO THE ENACTMENT OF THE FOREST (CONSERVATION) ACT, 1980.
1 Such cases should be treated at par with post 1980 encroachments and should not be regularised.
1.14. ENCROACHMENTS THAT TOOK PLACE AFTER 24.10.1980.
1.1 In no case encroachments which have taken place after 24.10.1980 should be regularised. Immediate action should be taken to evict the encroachers. The State/UT Government may, however, provide alternate economic base to such persons by associating them collectively in afforestation activities in the manner suggested in this Ministry's letter No. 6-21/89-FP dated 1.6.90, but such benefits should not extend to fresh encroachers..
CLARIFICATION
1. A reference is invited to the guidelines issued by this Ministry for regularisation of certain cases of forest encroachments reproduced above. The relevant paragraph 1.1 of the guidelines, which clarifies the cases of enroachments, which subject to specified conditions, would be eligible for regularisation, is reproduced below:
"Such cases are those where the State Governments had evolved certain eligibility criteria in accordance with local needs and conditions and had taken a decision to regularise such encroachments but could not implement their decisions either wholly or partially before enactment of the Forest (Conservation) Act on 25.10.1980.
2. Doubts have been raised as to whether all encroachments that had taken place up to 25.10.1980 could be regularised in accordance with an eligibility formula by which some earlier encroachments were regularised.
3. A perusal of the paragraph reproduced above will make it clear that there are 2 pre-conditions for any enroachments to be considered for regularisation. These are:-
(a) The State Government should have taken the decision on regularisation of encroachments before 25.10.1980; and
(b) that the decision should be with reference to some eligibility criteria (normally expected to be related to social and economics status of encroachers, location and extent of encroachment, cut off date of enroachment, etc.)
4. It would be seen that the encroachments which are proposed to be considered for regularisation, subject to the prescribed conditions, are those which fulfilled the eligibility criteria evolved by the State Government as per decision taken before 25.10.1980 for regularisation of enroachments. The objective is limited to permitting implementation of decisions taken before 25.10.1980 which could not be implemented because the enactment of Forest (Conservation) Act, 1980 intervened. It is therefore quite clear that while all encroachments that can be considered as eligible for regularisation would have taken place before 25.10.1980, all enroachments that had taken place before 25.10.1980 would not be eligible for regularisation - thay may be ineligible because either they do not meet the eligibility criteria or are not covered by any decision taken before 25.10.1980. Thus, if the decision on regularisation of encroachments in a State covered only encroachments up to a date earlier than 25.10.1980, the guidelines on regularisation of encroachments do not envisage that the State Government would now survey enroachments between that date and 25.10.1980 and propose regularisation. The latter enroachments though occurring before 25.10.1980 are not covered by any regularisation decision taken prior to that date and hence can not be considered for regularisation at this juncture.
5. Accordingly, the State Governments may take up for implementation only such decision of pre 25.10.1980 period which could not be implemented because of Forest (Conservation) Act, 1980 intervening and propose regularisation of encroachments as per those decisions and in accordance with the eligibility criteria laid down in those decisions. No enroachments not covered by any pre 25.10.1980 decisions - even though they might have occurred prior to that - should now be considered for regularisation in terms of our guidelines.
1.15 Review of Disputed Claims over Forest Land, arising out of Forest Settlement
Detailed guidelines issued in this regard vide this Ministry’s NO>13-1/90-F.P(2) dated 18.9.90 shall be strictly followed. These are included in Annexure IVB.
1.16 Disputes Regarding Pattas/Leases/Grants involving Forest Land – Settlement thereof.
Detailed guidelines issued in this regard vide this Ministry’s No.13-1/90-F.P. (3) dated 18.9.90 shall be strictly followed. These are included in Annexure IV –C
1.17 Conversion of Forest Villages into Revenue Villages.
Detailed guidelines issued in this regard vide this Ministry’s No.13-1/90-F,P.(5) dated 18.9.90 shall be strictly followed. These are included in Annexure IVD.
II. Forest (Conservation) Rules, 2003 (with amendments made in 2004)
Forest (Conservation) Rules, 2003
Ministry of Environment and Forests
Notification
New Delhi, the 10th January, 2003
G.S.R.23(E):- In exercise of the powers conferred by sub-section (1) of section 4 of the Forest (Conservation) Act, 1980 (69 of 1980), and in supersession of the Forest (Conservation) Rules, 1981, except as respects things done or omitted to be done before such supersession, the Central Government hereby makes the following rules, namely:-
1. Short title, extent and commencement.-
1. These rules may be called the Forest (Conservation) Rules, 2003.
2. They shall extend to the whole of India except the State of Jammu and Kashmir.
3. They shall come into force on the date of their publication in the Official Gazette.
2. Definitions.- In these rules, unless the context otherwise requires:-
a. "Act" means the Forest (Conservation) Act, 1980 (69 of 1980);
b. "Committee" means the Advisory Committee constituted under section 3 of the Act;
c. "Chairperson" means the Chairperson of the Committee;
d. "Member" means a member of the Committee;
e. "Nodal Officer" means any officer not below the rank of Conservator of Forests, authorised by the State Government to deal with the forest conservation matters under the Act;
f. "Regional Office" means a Regional Office of the Central Government in the Ministry of Environment and Forests established as part of the Ministry to deal with the forest conservation matters under the Act;
g. "Section" means a section of the Act;
h. "User Agency" means any person, organisation or Company or Department of the Central or State Government making a request for diversion or de-notification of forest land for non-forest purpose or using forest land for non-forest purpose in accordance with the permission granted by the Central Government under the Act or the rules.
3. Composition of the Committee.-
(1) The Committee shall be composed of the following members:-
i. Director General of Forests, Ministry of Environment and Forests - Chairperson.
ii. Additional Director General of Forests, Ministry of Environment and Forests- Member.
iii. Additional Commissioner (Soil Conservation), Ministry of Agriculture- Member.
iv. Three eminent experts in forestry and allied disciplines (non-officials)- Members.
v. Inspector General of Forests (Forest Conservation), Ministry of Environment and Forests - Member Secretary
(2) Additional Director General of Forests shall act as the Chairperson in the absence of Director General of Forests.
4. Terms of appointment of non-official members shall be as follows.-
i. a non-official member shall hold his office for a period of two years;
ii. a non-official member shall cease to hold office if he becomes of unsound mind, becomes insolvent or is convicted by court of law on a criminal offence involving moral turpitude;
iii. a non-official member may be removed from his office if he fails to attend three consecutive meetings of the Committee without any sufficient cause or reasons;
iv. any vacancy in the membership caused by any reason mentioned in clauses (ii) and (iii) shall be filled by the Government for the unexpired portion of two years term.
v. travelling and daily allowance shall be payable to the non-official members of the Committee at the highest rate admissible to the Government servants of Group 'A' under the rules and orders made by the Central Government and for the time being in force.
Provided that the payment of travelling allowance and daily allowance to a member who is a Member of the Parliament or a Member of a State Legislature shall be regulated in accordance with the Salary, Allowances and Pension of Members of Parliament Act, 1954 (30 of 1954) or the respective provisions of law pertaining to the member of the concerned State Legislature.
5. Conduct of business of the Committee.-
i. The Chairperson shall call the meeting of the Committee whenever considered necessary, but not less than once in a month.
ii. The meeting of the Committee shall be held at New Delhi.
iii. In a case where the Chairperson is satisfied that inspection of site or sites of forest land proposed to be used for non-forest purposes shall be necessary or expedient in connection with the consideration of the proposal or proposals received under sub-rule (3) of rule 6, he may direct that the meetings of the Committee to be held at a place other than New Delhi from where such inspection of site or sites is necessary.
iv. The Chairperson shall preside over every meeting of the Committee at which he is present.
v. Every question upon which the Central Government is required to be advised shall be considered in the meeting of the Committee provided that in urgent cases if the meeting cannot be convened within a month, the Chairperson may direct that papers may be circulated and sent to the members for their opinion within the stipulated time.
vi. The quorum of the meeting of the Committee shall be three.
6. Submission of the proposals seeking approval of the Central Government under section 2 of the Act.-
(1) Every user agency, who wants to use any forest land for non-forest purposes shall make his proposal in the appropriate Form appended to these rules, i.e. Form ‘A’ for proposals seeking first time approval under the Act and Form ‘B’ for proposals seeking renewal of leases where approval of the Central Government under the Act had already been obtained earlier, to the concerned nodal officer authorized in this behalf by the State Government, alongwith requisite information and documents, complete in all respects, well in advance of taking up any non-forest activity on the forest land.
(2) Every State Government or other authority, after having received the proposal under sub-rule (1) and after being satisfied that the proposal requires prior approval under section 2 of the Act, shall send the proposal to the Central Government in the appropriate forms, within ninety days of the receipt of the proposal from the user agency for proposals seeking first time approval under the Act and within sixty days for proposals seeking renewal of leases where approval of the Central Government under the Act had already been obtained earlier:
Provided that all proposals involving clearing naturally grown trees in forest land or portion thereof for the purpose of using it for reafforestation shall be sent in the form of Working Plan or Management Plan.
(3) The proposal referred to in sub-rule (2) above, involving forest land of more than forty hectare shall be sent by the State Government to the Secretary to the Government of India, Ministry of Environment and Forests, Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi-110 003, with a copy of the proposal (with complete enclosures) to the concerned Regional Office.
(4) The proposal referred to in sub-rule (2) above, involving forest land up to forty hectare shall be sent to the Chief Conservator of Forests or Conservator of Forests of the concerned Regional Office of the Ministry of Environment and Forests.
(5) The proposal referred to in sub-rule (2) above, involving clearing of naturally grown trees in forest land or portion thereof for the purpose of using it for reafforestation shall be sent to the Chief Conservator of Forests or Conservator of Forests of the concerned Regional Office of the Ministry of Environment and Forests.
7. Committee to advise on proposals received by the Central Government.-
(1) The Central Government shall refer every proposal, complete in all respects, received by it under sub-rule (3) of rule 6 including site inspection report, wherever required, to the Committee for its advice thereon.
(2) The Committee shall have due regard to all or any of the following matters while tendering its advice on the proposals referred to it under sub-rule (1), namely:-
a. Whether the forests land proposed to be used for non-forest purpose forms part of a nature reserve, national park wildlife sanctuary, biosphere reserve or forms part of the habitat or any endangered or threatened species of flora and fauna or of an area lying in severely eroded catchment;
b. Whether the use of any forest land is for agricultural purposes or for the rehabilitation of persons displaced from their residences by reason of any river valley or hydro-electric project ;
c. Whether the State Government or the other authority has certified that it has considered all other alternatives and that no other alternatives in the circumstances are feasible and that the required area is the minimum needed for the purpose; and
d. Whether the State Government or the other authority undertakes to provide at its cost for the acquisition of land of an equivalent area and afforestation thereof.
(3) While tendering the advice, the Committee may also suggest any conditions or restrictions on the use of any forest land for any non-forest purpose, which in its opinion, would minimise adverse environmental impact.
8. Action of the Central Government on the advice of the Committee.–
The Central Government shall, after considering the advice of the Committee tendered under rule 7 and after such further enquiry as it may consider necessary, grant approval to the proposal with or without conditions or reject the same within sixty days of its receipt.
9. Proceedings against persons guilty of offences under the Act.-
(1) The Central Government may, by notification, authorize any officer not below the rank of Conservator of Forests or the concerned forest officer having territorial jurisdiction over the forest land in respect of which the said offence is said to have been committed, to file complaints against the person (s) prima-facie found guilty of offence under the Act or the violation of the rules made thereunder, in the court having jurisdiction in the matter.
Provided that no complaint shall be filed in the court, without giving the person (s) or officer (s) or authority (s) against whom the allegations of offence exist, an opportunity to explain his or their conduct and to show cause, by issuing a notice in writing of not less than sixty days, as to why a complaint should not be filed in the court against him or them for alleged offences.
(2) The officer authorised by the Central Government in sub-rule (1) may require any State Government or its officer or any person or any other authority to furnish to it within a specified period any reports, documents, statistics and any other information related to contravention of the Act or the rules made thereunder, considered necessary for making a complaint in any court of jurisdiction and every such State Government or officer or person or authority shall be bound to do so.
APPENDIX
(See Rule 6)
FORM – ‘A’
Form for seeking prior approval under section 2 of the proposals
by the State Governments and other authorities
PART-I
(to be filled up by user agency)
1. Project details:
(i) Short narrative of the proposal and project/scheme for which the forest land is required.
(ii) Map showing the required forest land, boundary of adjoining forest on a 1:50,000 scale map.
(iii) Cost of the project:
(iv) Justification for locating the project in forest area.
(v) Cost-benefit analysis (to be enclosed).
(vi) Employment likely to be generated.
2. Purpose-wise break-up of the total land required:
3. Details of displacement of people due to the project, if any:
i. Number of families.
ii. Number of Scheduled Castes/Scheduled Tribe families
iii. Rehabilitation plan. (to be enclosed)
4. Whether clearance under Environment (Protection) Act, 1986 required? (Yes/No).
5. Undertaking to bear the cost of raising and maintenance of compensatory afforestation and/or penal compensatory afforestation as well as cost for protection and regeneration of Safety Zone, etc. as per the scheme prepared by the State Government (undertaking to be enclosed).
6. Details of Certificates/documents enclosed as required under the instructions.
