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Sanjay Upadhyay Advocate Supreme Court of India Managing Partner Enviro Legal Defence Firm June 2013.

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Presentation on theme: "Sanjay Upadhyay Advocate Supreme Court of India Managing Partner Enviro Legal Defence Firm June 2013."— Presentation transcript:

1 Sanjay Upadhyay Advocate Supreme Court of India Managing Partner Enviro Legal Defence Firm June 2013


3 3  Mining & Mining leases (a privilege & not a right)  Property rights (forest-dwellers)  Procedure conflicts ◦ Inquiry ◦ Proforma  Language of notification  Control over forest – Centre-state relations  FCA does not apply to areas that are owned by Central Government  Conflicts of jurisdiction within depts. of state.  Use of forest for non-forest purpose

4  Provisions of FCA not only applicable on fresh leases of forest land but also on those which are being renewed.  Renewal not a matter of Right. (Ambica Quarry Works)


6  The Godavarman case represents the single biggest judicial intervention in administration of forest in the country and perhaps in the world!.  Judicial activism has been at its zenith -since 1995, a few thousand Interlocutory Applications have been filed representing different interest groups ◦ from different States, ◦ different sectors, ◦ non government organizations, ◦ industrial sectors, ◦ traders, ◦ political interest, ◦ social activists, ◦ environmentalists, ◦ forest dwellers………the list is endless.

7  substantive and definitional issues such as definition of forest, dereservation, wood based industry, working plans, “encroachment”.  ecological aspects of forests such as conservation of forests, ecologically sensitive areas,  strategies to deal with diseases on forests (sal borer),  removal of forest produce,  restrictions on clear felling and green felling.  economic role of forests such as forest land valuation including compensatory afforestation and net present value  staffing and budgetary issues such as financial outlays for forests and wildlife,  salaries of staff  the role and constitution of Forest Advisory Committee.

8  The SC has also ◦ dealt with commercial and livelihood aspects of forestry in relation to mining, sawmills, plantations and wood based industries. ◦ The court has adopted numerous legal and judicial strategies through inquistionary, advisory, judicial and statutory Committees to assist itself in arriving at fair and just decisions. ◦ It has adopted strategies to implement its own orders through new and innovative methods by imposing pecuniary restrictions to use of contempt proceedings. ◦ The case has also resulted in creation of new structures ( unheard in any part of the world) -the Central Empowered Committee (CEC) which has been created under the powers of the SC. ◦ Last but not the least, the role of amicus curiae is perhaps the most evolved in this case.  Is this is a good sign?

9  Running of saw Mills in close proximity of any forest area banned.  All Wood based Industries to be relocated in industrial zones earmarked by the Government  Fresh Licenses for Saw mills to be awarded after proper consultation with CEC  All mining in any forest area without prior approval of the Union Government to be banned.  Officers allowing illegal mining held in contempt and vehicle and equipment of miners seized

10  Complete ban on movement of timber within and outside the North Eastern States  Prior Certification by the HPC for Commercial use of any Timber  State Governments of North East directed to come up with guidelines for transit of timber in consultation with MoEF  All other government departments like railways directed to follow these guidelines  The Court has prohibited collection of dry, dead and fallen wood from the PA’s.

11  Clearance under FCA made mandatory for new as well as leases to be renewed.  Non implementation of the Court order resulted in blanket ban on mining in Aravallis. But later on the order was modified and the ban was restricted only to illegal mining done in contravention of EPA and FCA  In the matter of mining in national park being undertaken by KIOCL. The Corporation was given 5 years to wind up its operations from the time of expiry of earlier lease.

12  The Court criticized the inconsistent approach of the Central and State Government on the issue of grant of short term permits for mining.  Another important issue was the Mirzapur Mining Matter where the Court took strong note of non implementation of its directions and initiated contempt proceedings against responsible officials.  Orissa Mining Case

13  To oversee implementation of Courts Order within the Country.  Also assigned powers for dispute resolution and redressal of grievance caused due to implementation of courts order for State and Individuals  This committee comprised of nominees from the Union Ministry, NGO’s and a representative of the Amicus Curiae  The Committee has since been notified under the Environment Protection Act, then withdrawn and now under the SC order.

14  Subsequent to notification the Apex Court started referring matters other than one related to the Godavarman Case too.  The Committee also acts as an investigative hand of the Court  De Facto the Committee has been placed above all High Courts of the Country.  It was on a task report submitted by CEC that the Court made prior permission of the CEC mandatory for States before allowing opening of any new saw mill or plywood manufacturing unit  Again it was on the recommendations of the CEC that the Court directed constitution of CAMPA

15  CEC has played a vital role as an investigative arm of the Court in deciding matters relating to illegal mining over forest lands  Some of the important interventions include ◦ Mining by Kudremukh Iron Ore limited ◦ illegal mining in Aravallis  Blanket ban imposed on mining by the Court was again in pursuance of a report submitted by the CEC on the mining in Aravalli ranges.  Two thoughts: While some laud the great tasks done… Is this good institutionally for FD and if not what are we doing about it?

16  Constituted to assume the role of CEC for the State of Arunanchal Pradesh  Court directed transfer of all pending applications and filing of new applications before the authority for disposal.  Court directed the authority to supervise and inform the Court about the implementation of its various directions and orders passed from time to time

17  Monitoring Committee to oversee reafforestation, mining activities and other related matters in Doon Valley Mining Matter  High Powered Committee for the North Eastern region.  R. B. Lal Committee to present a report on the Sal Borer issue  R.M.N. Sahay Committee on encroachment in Thatkola resreve forest  Shekhar Singh Committee on Encroachment in Andaman Nicobar Islands

18  All encroachment on any forest to be identified as pre 1980 and post 1980  All post 1980 encroachment to be phased out in a time bound manner  State Government directed to come with guidelines for removal of encroachment.  In this Process CEC to be consulted  But what is “encroachment”. Who decides? What is the legal definition? Is it too discretionary? Private forest? 1952?

19  Constitution of CAMPA by MoEF shows Judicial Influence on Executive Actions  The Court directed all the northeastern States to ensure that the timber and forest produce is supplied to industries including government undertakings at full market rates  State of Assam revised the rates of the royalty on timber on 17 Aug 1998 in pursuance to the Court order.

20  The Court directed for creating a revolving fund from the amount realized out of the penalties levied on the wood based industries and the proceeds from the sale of seized timber as well as timber products.  Half of the amount was to be utilized for raising forest plantations by tribals and the other half would to meet the expenses involved in collection, transportation of the seized timber.  Following another order of the Court the State of Assam notified the industrial estates where the wood based industries of the State could be shifted.

21  The Court had asked the State governments of all northeastern states to frame rules with respect to felling of tress from non-forest lands, with the concurrence of the MOEF  The Assam Government formulated the The Assam (Control of Felling and removal of tress from non-forest lands) Rules, 2002, which incdentally defines forest in wider, being influenced by the definition accorded to forests by the Court in one of the orders passed in Godavarman case

22  Corporate Houses like pepsi and coke imposed with cost for causing ecological degradation: Himanchal Rock Painting Case  Reliance Industries issued notice for causing damage to a National Park in M.P.  Emphasis on sustainable use of resource for development and  precautionary principle

23  Two cases which have had great influence are the CEL WWF-India Case and the Navin Raheja Case.  The CEL Case was filed to understand the State position on settlement of rights in national parks and sanctuaries  It was in this case that the Apex Court made the clearance of National Board of Wildlife mandatory before according clearance for diversion of a forestland in any of the PA’s for non-forestry purpose

24  Lafarge case – Implementing Policy; Setting up Institution; Joint Process in case of dispute  Ajay Dubey – Tiger Tourism  Orissa Mining Judgment- cultural and religious rights to be inquired under FRA

25  Is this just and environment versus development case? No. It raises larger questions of due process and the mess in which are environmental laws are!  Should we have such an unclear system where it should take anyone to sort out a dispute in 14 years?  Why are we not more diligent about North eastern states in terms of its forest and biodiversity needs especially when the constitution asks us to look at it differently. Meghalaya is a sixth scheduled state and it needs to be looked at differently and not just when there are disputes.

26  The link between local Hill Council Laws, such as United Khasi and Jaintia Hills Act ( Management of Forests), the FCA and the varied classification that exists are not well known  This also raises the larger question of Central versus State Government mandate. The view of a DFO who is not incharge of such areas versus view of a regional CCF who is centrally incharge versus the Local Hill area council..these relationships have never been clarified even in Godavarman case and more so in its order dated 12.12.1996.  Very few people understand the difference between dictionary meaning of forest versus notified forest versus recorded forests and more importantly forest land.  The link between Policy, law and related laws..FP-FCA and EPA finally….kudos to SC.  Wisdom of local communities?

27  Regulator for FP, 88 But why only for FP and why not for Env Policy too?  Regional offices?  Regional CECs?  FC before EC?  Corporate Env Policy?  Completion of “WHAT IS FOREST”??  comprehensive policy for inspection, verification and monitoring and the overall procedure relating to the grant of forest clearances

28  An over active judiciary is a sign of a weak Executive!

29 THANK YOU +91-9810298530

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