The Gauhati High Court directed the Assam government’s Forest Department as well as the Chief Secretary to ensure that the existing forest over the Gita Mandir Hills in Guwahati is not used for any non-forest purpose in terms of Section 2 of the Forest (Conservation) Act, 1980 without following due procedure of law prescribed therein.
The Division Bench of Justice Achintya Malla Bujor Barua and Justice Robin Phukan allowed a Public Interest Litigation (PIL) filed raising a public cause that it would be in the interest of the public if the forest area adjacent to the Zoo Narengi road is retained and not converted to any other non-forest area including commercial ventures. The Zoo Narengi Road (subsequently renamed Mother Teresa Road) in Guwahati connects the Radha Govinda Barua Road with NGB Tri-junction at the locality called Forest Gate.
Although the area in and around both sides of the Zoo Narengi road are thickly populated residential areas, but adjacent to the Zoo Narengi road towards the eastern side exists a hill in the name of Gita Mandir Hill. There exists a temple on the top of Gita Mandir Hill which is called the Gita Mandir. But from the level of the plains area up to the top of the hill comprising the temple, the entire area is thickly covered forest area. The petitioners also placed a satellite photo of the Gita Mandir Hill, which itself makes it discernible that from the level of the plain area from which the hill exists, except for the very small portion comprising of the Gita Mandir Temple, the rest of the area comprises of thick forest and no construction of any kind had been undertaken over the hill as revealed by the photograph, as admitted by the respondents.
The petitioners instituted this PIL on the premise that the aforesaid forest area is the only surviving green area in the locality and also one of the very few green areas that are yet to be destroyed within the city of Guwahati.
The State of Assam, through the Revenue Department, has stated that as per the land records, the entire Gita Mandir Hill area comprises of revenue land and no settlement had been made to any person over the land of the Gita Mandir Hill even under the Assam Land and Revenue Regulations, 1886 except for a small portion on the top of the hill where the land had been allotted to the Gita Samaj where the Gita Mandir Temple presently exists.
In course of the deliberation before the Court even the Environment and Forest Department of the Government of Assam on principle is agreeable that if the surviving forest area in the Gita Mandir Hill can be preserved, it would be in the greater public interest and by taking such stand, the respondents in the Environment and Forest Department are in agreement with the cause raised by the petitioners in this PIL petition.
“It is heartening to note the stand of the Environment and Forest Department of the Government of Assam, which no doubt has to be accepted to be a stand made by the Department in the public interest. The harm that has been caused to the environment is no longer a debatable issue as to whether any harm has been caused or not and a judicial notice can always be taken, more so, considering the recent variable climatic condition prevailing all over the world that something urgently is required to be done. “
From such a point of view, if the Court notices that there is an opportunity to do something in favour of the environment, the High Court said it saw no reason of any kind as to why it should not be carried forward and brought to its logical end. Guwahati city is a sprawling area comprising of an area of 216.79 sq km, where a very few spaces still exist where the land has not been used for any non-forest or commercial purpose.
Considering the limited land that is available within the city of Guwahati, where green cover still exists, the Court held that it is more so in the requirement of public interest that such small but yet existing green cover be preserved to the maximum extent that is possible, which will not only be beneficial for the environment as a whole, but also to the citizens and residents of Guwahati.
The forest laws governing the State of Assam are governed by the Assam Forest Regulations, 1891. Section 5 of the Regulations 1891 enables the State Government to constitute any land a reserved forest by following the procedure prescribed therein. The very empowerment of the State Government to constitute any land a reserved forest makes it apparent that even a land which otherwise is a revenue land under the Government of Assam, if comprises of a thick forest, can also at the wisdom of the State Government be declared to be a reserved forest, if it is deemed to be in the public interest.
Although the Indian Forest Act, 1927, as such may not be applicable to the State of Assam, but the Court took note that in the Act of 1927, there is also a residual power under Section 29 thereof that the State Government may by notification in the official Gazette declare that in respect of any forest land or waste land which is not included in a reserved forest, but which is a property of the Government or over which the Government has proprietary right, to the whole or any part of the forest produce, the Government may declare such land to be a protected forest.
Be that as it may, taking note of the issue in the public interest raised by the petitioners regarding maintaining the forest cover on the Gita Mandir Hill, as well as the stand of the respondents in the Government of Assam including that of the Environment and Forest Department that it would be in the public interest to maintain the forest cover, the High Court in concurrence with such view that maintaining the forest cover would be in the interest of the environment of the entire region as well as in the public interest, more so, as already noted, considering that the availability of green covered forest land within the city of Guwahati is almost next to negligible.
The High Court also took note of the provisions of Section 2 of the Forest (Conservation) Act, 1980 which is extracted as below:
“2. Restriction on the de-reservation 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 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 organization 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.”
Section 2 of the Forest (Conservation) Act, 1980 begins with a non obstante clause ‘notwithstanding’ by providing that notwithstanding anything contained in any other law for the time being in force, no State Government or any other authority shall authorize without the prior approval of the Central Government to use any land within the reserved forest or any forest land or any portion thereof for any non-forest purpose of any kind.
The expression ‘forest’ in Section 2 of the Forest (Conservation) Act, 1980, has already been interpreted by the Supreme Court in T.N. Godavarman Thirumulpad v. Union of India and others reported in (1997) 2 SCC 267 that the term ‘forest land’ appearing in Section 2 of the Forest (Conservation) Act, 1980 will not only include forest as understood in the dictionary meaning but also any area recorded as forest in the Government record irrespective of the ownership.
In Narinder Singh and others v. Divesh Bhutani and others in Civil Appeal No. 10294 of 2013 the Supreme Court had provided that the Legislature has used the words “any forest” in Clauses (ii) to (iv) of Section 2 of the Forest (Conservation) Act, 1980 after referring to the reserved forest in Clause (i) of the said section, which gives the interpretation that the intention of the Legislature is to bring all the forests, whether covered by the Indian Forest Act, 1927 or not, within the sweep of the Forest (Conversation) Act, 1980.
A conjoint reading of the meaning given to the expression ‘forest’ in T.N. Godavarman Thirumulpad (supra) and Narinder Singh (supra) the Court observed that it makes it discernable that for the purpose of protection and restriction of use of any forest into non-forest use the word forest would have to be given into a meaning of wide connotation which would mean that any standing forest over a given particular area would also have to be understood to be a forest for the purpose of its conservation.
Upon application of the wider meaning and connotation of the expression ‘forest’, the High Court concluded that the restrictions under Section 2 of the Forest (Conservation) Act, 1980 would also be applicable to the forest cover on the Gita Mandir Hill of Guwahati, whether or not such forest cover is declared either to be a reserved forest or a protected forest. Upon any such decision that may be taken, the restriction of conversation of the use of the land covered by the aforesaid forest into non-forest area would henceforth be applicable.