February 26, 2008: ‘The proprietary status of forest land shall remain unchanged’
PDP now opposes the transfer, but records show how it said the opposite
Memorandum for Submission to the Cabinet
Subject:- Use of Forest Land for non-forestry purpose
1. The Forest Department has received requisitions from various Agencies/Departments for diversion of forest land for non forestry purposes. The Memorandum deals with the cases which were cleared by the Advisory Committee constituted under J&K Forest Conservation Act, 1997 in its 39th Meeting held on July 12, 2007 under the Chairmanship of the Chief Secretary.
These cases were placed before the Cabinet in its meeting on February 26, 2008. The item was “deferred” since some clarifications were necessary about the wildlife perspective in respect of the proposal of Amarnathji Shrine Board (discussed as case 4 of this Memorandum). Pursuant to the above, a Committee of officers was constituted vide Government Order No. 108-Fst of 2008 dated March 17, 2008 to look into that proposal. The report of the Committee has since been received and is attached as Annexure to this Memorandum.
12. Shri Amarnathji Shrine Board (SASB) has made a requisition for diversion of forest land measuring 39.88 hectares falling under Compartment No. 63a/Sindh in Block Kullan, Range Sindh, Sindh Forest Division for construction/provision of buildings/hutments and other infrastructure for visiting Yatries of Amarnath Ji Yatra at Baltal and Domail.
13. Regarding the Wildlife aspect of proposal, Pr. CCF has submitted in the agenda as under:-
(a) Forms part of National Park, Wildlife Sanctuary, Natural Reservoir, Biosphere Reservoir etc.
Proposed area is adjacent to Thajwas sanctuary. The uncontrolled flow of yatris will cause pollution...
14. The recorded decision of the Advisory Committee is reproduced as under:-
“The Advisory Committee discussed this case in depth. The Chief Wildlife Warden apprised the Committee that he has already submitted his report under No. WLP/Tech/1971/07 dated 11.06.2007 after spot inspection on 27.5.2007, which is reproduced as under:-
It was noticed that the proposed site for construction of Shri Amarnathji Shrine Board Complex, falling in the compartment 63(s)/Sindh/Kullan, is located on the right side of Sindh rivulet. The proposed complex does not seem to have any significant impact on the ecology of Thajwas Wildlife Sanctuary. The apprehensions of DFO Sindh and Wildlife Warden,Central that the said complex may have adverse impact on the Wildlife Sanctuary appear to be “over cautious” and an environmentally conservative approach. It is also given to understand that Shri Amarnathji Shrine Board is using pre-fabricated structures, as such likely pollution due to discharge of muck and garbage etc should not be significant . It is presumed that Shri Amarnathji Shrine Board will take necessary environmental safeguards as applicable for such development projects.
In view of the above report, the Advisory Committee cleared the diversion of the above Forest land to Shri Amarnathji Shrine Board (SASB), on the following terms and conditions:-
i) The proprietary status of forest land shall remain unchanged.
ii) The forest land so diverted shall be utilised only for the purpose for which it has been diverted. It shall not be transferred to any other agency without approval of the Forest Department.
iii) The forest land so diverted shall not be mortgaged, re-assigned or sub-leased by user agency in any manner what so ever to any other agency.
(For the rest, see adjacent document)
15. As mentioned above, following the deferment of these cases in the Cabinet meeting on February 26,2008 a Committee under the Chairmanship of Chief Wildlife Warden was constituted vide Govt.order No. 108-FST of 2008 dated March 17,2008 to examine the feasibility of diversion of forest land vis-a-vis Wildlife Perspective for various developmental activities including construction of roads in Baltal-Ranga-Domail area of Ganderbal District as requested by Shri Amarnathji Shrine Board. The Committee has submitted its report vide letter dated May 7, 2008 (Annexure-A). The relevant extracts of the Committee’s report are reproduced as under:-
“That the proposed camping sites of Shri Amarnathji Shrine Board (SASB) complex comprising 39.88 hectares of forest land (30.88 Ha. At Baltal and 9.00 Ha at Domail) fall in the Forest Compartment No.63/Sindh of Sindh Forest Division, Forest Department. Theses proposed camping sites do not involve any area of Thajwas Wildlife Sanctuary, which is located on the left side of river Sindh...
17. The case for diversion of Forest Land for non-forestry purpose are required to be submitted to the Cabinet as per the provisions of the Jammu and Kashmir Forest (Conservation) Act after clearance by the Advisory Committee. However, Hon’ble Supreme Court of India passed directions in W.P. (c) No. 202/1995 in the case titled T.N. Godavarman V/S Union of India & others on 27.04.2007 as under:
“...In the circumstances,we hereby give the following directions, pending our decision on the larger question indicated herein above:
a) The FAC as it stands today will give priority to Projects which need immediate clearances. In this regard, it may be stated that fresh cases may be cleared project-wise by the FAC and thereafter such clearances shall be placed before this court for approval. We make it clear that pending the decision of the larger question, all clearances by the FAC of fresh cases shall be subject to approval by this Court. Before giving approval, we would like to have responses from the CEC in respect of each clearance. In order to avoid delay, we direct the concerned Ministry to give a copy of the clearance to the CEC so that the CEC would give its response expeditiously. We will examine each clearance and decide whether to grant or not to grant the approval thereto. Once the approval is granted by this Court, the matter may be placed before the central government for disposal in accordance with law...”
18. The above said order was sent to the Law Department for giving its opinion as to whether the same is applicable to J&K State. The Law Department has opined as under:
“The order of the Hon’ble Supreme Court dated 27.04.2007 is with regard to the Forest Conservation (Central)Act, and rules framed thereunder. The said Act is not applicable to the State as forests continue to be in the state list. Earlier a similar case was examined and vide UO No. LD(Opn) 2006/77-Fst dated 06.03.2007 the department was advised to move an application before the Hon’ble Court to the effect that the Forest Conservation Act, 1990 (Central Act) is not applicable to the State. The State has its own Forest Act as well as Forest Conservation Act, 1997 and seeks clarification from the Hon’ble Court. The Department is advised to pursue the said matter vigorously with the Hon’ble Supreme Cour and awaits clarification in the matter.”
19. In the meanwhile the PCCF vide communication NO. PCCF/FC/Gen./5/106 dated 21.07.2007 approached the Central Empowered Committee constituted by the Hon’ble Supreme Court... The CEC opined under:
“ The non-forest use of the forest land falling within the State of Jammu and Kashmir is governed by the provisions of the Jammu and Kashmir Forest (Conservation) Act, 1990 and not by the Forest (Conservation) Act, 1980. In view of the above, the CEC is of the view that the Hon’ble Supreme Court’s order dated 27.04.2007 regarding the functioning of the Forest Advisory Committee constituted under Section 3 of the Forest (Conservation) Act, is not applicable in respect of the proposals examined by the State Level Advisory Committee constituted under the Jammu and Kashmir Forest (Conservation) Act, 1990 as amended from time time.”
20. Advice of the Law Department was sought on the opinion of the CEC and the Law Department said as under:
“The views of the CEC regarding the applicability of the orders of the Hon’ble Supreme Court is their opinion. The said opinion confirms the views of this Department. However, it would be safe, as advised earlier, to bring the legal position in the notice of the Hon’ble Supreme Court and seek their clarification as the State has its own Forest Conservation Act of 1990.”
21. Subsequently, the matter was referred to the Ld. Advocate General for advice who said as under:
“The Forests continue to be a subject with respect to which the state government has the power to make laws and not the Union. The Jammu and Kashmir Forest (Conservation) Act of 1997 is applicable to the state of J&K and the Rules have also been framed under the said Act. The J&K State Forest (Conservation) Rules provide for the constitution of a Forest Advisory Committee and it is within the jurisdiction of the said Forest Advisory Committee under the J&K State Forest (Conservation) Act to give clearance of projects for the purpose of non forestry purpose. So far as the rest of the States are concerned, the Forest (Conservation) Act 1980 is applicable to them. Under the aforesaid Forest (Conservation) Act Forest (Conservation) Rules 1981 had been framed. Under rule 4 of the Forest (Conservation) Rules of 1981 it is provided that the Forest Advisory Committee has to be constituted and the said Forest Advisory Committee shall have the jurisdiction to clear the projects where forest land is required for non forestry purposes. It appears that the Hon’ble Supreme Court in WP (C) 202/1995 titled T.N. Godavarman versus Union of India had stayed the working of the Forest Advisory Committee in terms of the Forest (Conservation) Rules of 1981. Subsequently vide order dated 27.04.2007 the Hon’ble Supreme Court had modified the order and had directed that the Forest Advisory Committee constituted under the Forest Conservation Rules of 2003 as it stands will give clearance of the projects where forest land is required for non forestry purposes and the project would be sent to a Central Empowered Committee, which would give its response expeditiously.
I have gone through the order dated 27.04.2007 passed by the Hon’ble Supreme Court. Since neither the Forest (Conservation) Act of 1980 nor Forest (Conservation) Rules made there under are applicable to the State of J&K. The state is governed by the J&K Forest (Conservation) Act 1997 and Forest (Conservation) Rules, 2000. The Forest Advisory Committee has been constituted under the aforesaid Forest (Conservation) Rules, therefore, the order dated 27.04.2007 does not have any applicability with respect to the State of Jammu and Kashmir in as much as since the Forest (Conservation) Act of 1980 and the rules made thereunder are not applicable to the State of J&K. Moreso, a communication issued by the CEC on 27.07.2007 which is on file had clarified that the order of the Hon’ble Supreme Court dated 27.04.2007 regarding the functioning of the Forest Advisory Committee under section 3 of the Forest (Conservation) Act is not applicable in respect to the proposals examined by the State Level Advisory Committee constituted under the J&K Forest (Conservation) Act 1997. It is as such advised that the order dated 27.04.2007 does not pertain to the J&K State and proposals in J&K have to be examined by the Forest Advisory Committee constituted under the J&K Forest (Conservation) Act of 1997 and rules made thereunder.”
22. Thereafter, GAD advised the Department to place the matter before the Hon’ble Dy. Chief Minister (Minister I/C Law) in view of two different opinions given by the Law Department and Ld. Advocated General. Accordingly, the matter was placed before the Hon’ble Dy. Chief Minister (Minister I/C Law) who opined as under:
“ There is no material difference between the opinion of Ld. Advocate General and that of the Law Department. The Law Department, by way of abundant caution, seeks to obtain the clarification of the Supreme Court. I concur with the view of the Central Empowered Committee and the Ld. Advocate General.”
23. In view of the clarification given by the CEC constituted by the Hon’ble Supreme Court, Ld. Advocate General, Hon’ble Dy. Chief Minister (Minister I/C Law), the Principal Secretary to the Government Forest Department with the approval of the Hon’ble Minister for Forests, submits the above mentioned cases to the cabinet for taking a view and according approval for the use of forest land for non-forestry purposes, in favour of the above said organisations, on the terms and conditions recommended by the Advisory Committee in its 39th meeting, which have been reproduced in this memorandum, together with the recommendation made at para 16 of the memorandum in respect of case no. 4.
Madhav Lal Principal Secretary to the Government of J&KDepartment of Forests