# NARINDER SINGH & ORS v. DIVESH BHUTANI & ORS

- **Citation:** [2022] 15 S.C.R. 1066
- **Court:** Supreme Court of India
- **Decided:** 2022-07-21
- **Case number:** Civil Appeal No. 10294 of 2013
- **Bench:** A. M. Khanwilkar, Abhay S. Oka, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narinder-singh-ors-v-divesh-bhutani-ors-35500
- **Pages:** 51

## Headnote

Forest (Conservation) Act, 1980 - s.2 - Punjab Land
Preservation Act, 1900 [As amended by Punjab land preservation
(Haryana Amendment) Act, 2019] - s.4 - Forest Act, 1927 - Whether
a land covered under a special order issued by the State Government
u/s. 4 of the PLPA is a 'forest land' within the meaning of the 1980
Forest Act - Held: The lands covered by the special orders issued
u/s. 4 of PLPA have all the trappings of forest lands within the
meaning of s.2 of the 1980 Forest Act and, therefore, the State
Government or competent authority cannot permit its use for nonforest activities without the prior approval of the Central
Government w.e.f. 25.10.1980 - Prior permission of the Central
Government is the quintessence to allow any change of user of
forest or so to say deemed forest land - Even during the subsistence
of the special orders u/s. 4 of PLPA, with the approval of the Central
Government, the State or a competent authority can grant permission
for non-forest use - If such non-forest use is permitted in accordance
with s.2 of the 1980 Forest Act, to that extent, the restrictions imposed
by the special orders u/s. 4 of PLPA will not apply in view of the
language used in the opening part of s.2 of the 1980 Forest Act - It
is also clarified that only because there is a notification issued u/s.
3 of PLPA, the land which is subject matter of such notification, will
not ipso facto become a forest land within the meaning of the 1980
Forest Act.
Disposing of the appeals and writ petitions, the Court
HELD: 1. The various restrictions, regulations and
prohibitions in different clauses in Section 4 of Punjab Land
Preservation Act, 1900 (PLPA) can be invoked necessarily in
respect of forest lands. Whereas, Section 3 of PLPA contemplates
the issuance of a general notification in respect of any area subject
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to erosion or likely to become liable to erosion when it appears
to the State Government that it is desirable to provide for the
conservation of sub-soil water or the prevention of erosion. As
noted earlier, one of the objectives of PLPA is to prevent erosion
of land which may be caused due to deforestation. When the State
Government is satisfied that as a result of deforestation or
impending deforestation, erosion of a particular area out of the
area notified under Section 3 is likely to take place, the State
Government may exercise the power under Section 4 by issuing
a special order. The reason is that the measures provided in
Section 4 are intended to prevent deforestation of a forest area.
Section 3 of PLPA contemplates the issuance of a notification in
respect of a larger area when it is desirable to provide for the
conservation of sub-soil water or prevention of erosion. When
the State Government is satisfied that deforestation of a forest
area forming part of a larger area notified under Section 3 is likely
to lead to erosion of soil, the power under Section 4 can be
exercised. Therefore, it follows that the specific land in respect
of which a special order under section 4 of PLPA has been issued
will have all the trappings of a forest governed by clauses (ii) to
(iv) of Section 2 of the 1980 Forest Act. Therefore, in respect of
the lands covered by special orders under Section 4 of PLPA,
the State Government or authorities of the State can permit
diversion to non-forest use only after prior approval of the Central
Government is granted in accordance with Section 2 of the 1980
Forest Act. [Para 47][1104-A-F]
2. Clause (a) of Section 5 of PLPA provides for restricting
or prohibiting the cultivation of any land ordinarily under
cultivation prior to the publication of the notification under Section
3. However, the power under Section 5 to restrict or prohibit can
be exercised in a case where prior to the publication of the
notification under Section 3, quarrying of any stone or the burning
of any lime was being made. Thus, there is a marked difference
between the language used in Section 4 and that in

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SUPREME COURT REPORTS
[2022] 15 S.C.R.
 [2022] 15 S.C.R. 1066
1066
NARINDER SINGH & ORS.
v.
DIVESH BHUTANI & ORS.
(Civil Appeal No. 10294 of 2013)
JULY 21, 2022
[A. M. KHANWILKAR, ABHAY S. OKA AND
C. T. RAVIKUMAR, JJ.]
Forest (Conservation) Act, 1980 - s.2 - Punjab Land
Preservation Act, 1900 [As amended by Punjab land preservation
(Haryana Amendment) Act, 2019] - s.4 - Forest Act, 1927 - Whether
a land covered under a special order issued by the State Government
u/s. 4 of the PLPA is a 'forest land' within the meaning of the 1980
Forest Act - Held: The lands covered by the special orders issued
u/s. 4 of PLPA have all the trappings of forest lands within the
meaning of s.2 of the 1980 Forest Act and, therefore, the State
Government or competent authority cannot permit its use for nonforest activities without the prior approval of the Central
Government w.e.f. 25.10.1980 - Prior permission of the Central
Government is the quintessence to allow any change of user of
forest or so to say deemed forest land - Even during the subsistence
of the special orders u/s. 4 of PLPA, with the approval of the Central
Government, the State or a competent authority can grant permission
for non-forest use - If such non-forest use is permitted in accordance
with s.2 of the 1980 Forest Act, to that extent, the restrictions imposed
by the special orders u/s. 4 of PLPA will not apply in view of the
language used in the opening part of s.2 of the 1980 Forest Act - It
is also clarified that only because there is a notification issued u/s.
3 of PLPA, the land which is subject matter of such notification, will
not ipso facto become a forest land within the meaning of the 1980
Forest Act.
Disposing of the appeals and writ petitions, the Court
HELD: 1. The various restrictions, regulations and
prohibitions in different clauses in Section 4 of Punjab Land
Preservation Act, 1900 (PLPA) can be invoked necessarily in
respect of forest lands. Whereas, Section 3 of PLPA contemplates
the issuance of a general notification in respect of any area subject
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to erosion or likely to become liable to erosion when it appears
to the State Government that it is desirable to provide for the
conservation of sub-soil water or the prevention of erosion. As
noted earlier, one of the objectives of PLPA is to prevent erosion
of land which may be caused due to deforestation. When the State
Government is satisfied that as a result of deforestation or
impending deforestation, erosion of a particular area out of the
area notified under Section 3 is likely to take place, the State
Government may exercise the power under Section 4 by issuing
a special order. The reason is that the measures provided in
Section 4 are intended to prevent deforestation of a forest area.
Section 3 of PLPA contemplates the issuance of a notification in
respect of a larger area when it is desirable to provide for the
conservation of sub-soil water or prevention of erosion. When
the State Government is satisfied that deforestation of a forest
area forming part of a larger area notified under Section 3 is likely
to lead to erosion of soil, the power under Section 4 can be
exercised. Therefore, it follows that the specific land in respect
of which a special order under section 4 of PLPA has been issued
will have all the trappings of a forest governed by clauses (ii) to
(iv) of Section 2 of the 1980 Forest Act. Therefore, in respect of
the lands covered by special orders under Section 4 of PLPA,
the State Government or authorities of the State can permit
diversion to non-forest use only after prior approval of the Central
Government is granted in accordance with Section 2 of the 1980
Forest Act. [Para 47][1104-A-F]
2. Clause (a) of Section 5 of PLPA provides for restricting
or prohibiting the cultivation of any land ordinarily under
cultivation prior to the publication of the notification under Section
3. However, the power under Section 5 to restrict or prohibit can
be exercised in a case where prior to the publication of the
notification under Section 3, quarrying of any stone or the burning
of any lime was being made. Thus, there is a marked difference
between the language used in Section 4 and that in Section 5 of
PLPA. However, as noted earlier, it is not necessary to decide
the issue whether a land forming a part of a special notification
under Section 5 of PLPA ipso facto becomes a forest under the
1980 Forest Act. [Para 48][1104-F-H]
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
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3. In this group of petitions, this Court is concerned with
three special orders under Section 4 issued on 18th August 1992
in respect of the said three villages. The effect of the said orders
is that the lands referred to therein are forest lands within the
meaning of Section 2 of the 1980 Forest Act. Even if such orders
are cancelled or amended or rescinded or their duration comes
to an end, the status of the lands covered by the same as forest
lands governed by Section 2 of the 1980 Forest Act cannot be
altered without following the due process provided therein. Once
a land is found to be a 'forest' within the meaning of the 1980
Forest Act, its user for non-forest purposes will be always
governed by Section 2 of the 1980 Forest Act. Secondly, clause
(i) of Section 2 provides that even in the case of a reserved forest
under the 1927 Forest Act, the State Government cannot pass an
order declaring that the same shall cease to be a reserved forest,
without the prior approval of the Central Government. Thirdly,
Section 2 starts with a non obstante clause which overrides anything
contained in any other law for the time being in force in a State
which will include all State and Central legislations applicable to
the State. Therefore, prima facie, the 2019 Amendment Act
enacted by the State Legislature would be repugnant to and
violative of Section 2 of the 1980 Forest Act, if construed
otherwise. Hence, whether the 2019 Amendment Act is given
effect or not, it will not change the status of the lands covered by
the special orders under Section 4 of PLPA as the said lands
possess all the trappings of a forest with effect from 25th October
1980 within the meaning of the 1980 Forest Act. Therefore, it is
not necessary in these petitions to deal with the issue whether
the order dated 01st March 2019 passed in Writ Petition (Civil)
No.4677 of 1985 should be modified. The said prayer will have to
be considered by the Bench dealing with the said writ petition.
[Para 63][1114-D-H; 1115-A-B]
4. The lands covered by the special orders issued under
Section 4 of PLPA have all the trappings of forest lands within
the meaning of Section 2 of the 1980 Forest Act and, therefore,
the State Government or competent authority cannot permit its
use for non-forest activities without the prior approval of the
Central Government with effect from 25th October 1980. Prior
permission of the Central Government is the quintessence to
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allow any change of user of forest or so to say deemed forest
land. This Court may add here that even during the subsistence
of the special orders under Section 4 of PLPA, with the approval
of the Central Government, the State or a competent authority
can grant permission for non-forest use. If such non-forest use is
permitted in accordance with Section 2 of the 1980 Forest Act, to
that extent, the restrictions imposed by the special orders under
Section 4 of PLPA will not apply in view of the language used in
the opening part of Section 2 of the 1980 Forest Act. This Court
may also clarify that only because there is a notification issued
under Section 3 of PLPA, the land which is subject matter of such
notification, will not ipso facto become a forest land within the
meaning of the 1980 Forest Act. [Para 64][1115-C-E]
T.N. Godavarman Thirumulkpad v. Union of India and
Ors. (1997) 2 SCC 267 : [1996] 9 Suppl. SCR 982; T.
N. Godavarman Thirumulkpad v. Union of India and
Ors. (2008) 16 SCC 401; M.C. Mehta v. Union of India
and Ors. (2004) 12 SCC 118 : [2004] 3 SCR 126; M.C.
Mehta v. Union of India & Ors.(2008) 17 SCC 294 :
[2008] 8 SCR 828; B.S. Sandhu v. Government of India
and Ors (2014) 12 SCC 172; M.C. Mehta (Kant Enclave
Matters, In Re.) v. Union of India & Ors. (2018) 18
SCC 397 : [2018] 11 SCR 384; Rajeev Suri v. Delhi
Development Authority and Others (2021) SCC online
SC 7; Citizens for Green Doon and Others v. Union of
India and Others (2021) SCC OnLine SC 1243 -
referred to.
Vijay Bansal & Others v. State of Haryana & others
2009 SCC online P & H 8073; Laxman Ichharam v.
The Divisional Forest Officer, Raigarh AIR 1953 Nagpur
page 51 - referred to.
Case Law Reference
[1996] 9 Suppl. SCR 982
referred to
Para 15
(2008) 16 SCC 401
referred to
Para 15
[2004] 3 SCR 126
referred to
Para 15
[2008] 8 SCR 828
referred to
Para 15
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
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[2014] 6 SCR 329
referred to
Para 15
[2018] 11 SCR 384
referred to
Para 16
CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil Appeal
No.10294 of 2013
From the Judgment and Order dated 03.05.2013 of the National
Green Tribunal, Principal Bench, New Delhi in Application No.42 of
2013.
With
Civil Appeal Nos.8454 of 2014, 8173 of 2016, 11000 of 2013 and
Writ Petition (Civil) Nos.1008, 1031 And 1320 of 2021.
Tushar Mehta, SG, K. M. Natraj, Ms. Aishwarya Bhati, ASGs,
Anil Grover, Sr. AAG, B. K. Satija, AAG, Arun Bhardwaj, Vikas Singh,
Sanjay Parikh, Colin Gonsalves, Manoj Swarup, Narender Hooda, D.
N. Goburdhun, Sr. Advs., Ajay Bansal, Rahul Kr. Sharma, Navin Gupta,
Samar Vijay Singh, Abhishek Sharma, Ms. Gauraan, Sanjay Kumar Visen,
Dr. Monika Gusain, Ms. Babita Mishra, Sarad Kr. Singhania, Gurmeet
Singh Makker, Sumit Teterwal, Vanshdeep Dalmia, Chinmayee Chandra,
Ms. Monisha Handa, Rajul Shrivastav, Mohit D. Ram, Ms. Srishti
Agnihotri, Satwick Parikh, Ms. Sanjana Thomas, Kawalpreet Kaur,
Haider Ali, Ms. Amit Shukla, Satya Mitra, Neelmani Pant, Raghav Bhatia,
Arunesh Grover, Ankit Swarup, Shekhar G. Devasa, Manish Tiwari,
Shashi Bhushan Nagar, Ms. Satvisa Pattanayak, M/s Devasa & Co.,
Aakarsh Kamra, Ms. Gauri Goburdhun, Ms. Sunita Singh Chauhan,
Hitesh Kumar Sharma, S. K. Rajora, Akhileshwar Jha, E. Vinay Kumar,
Naresh Kumar, Ms. Ranjeeta Rohatgi, Sourabh Tandon, Ms. Charu
Narula, Anuj Gupta, Tejaswi Kumar Pradhan, Manoranjan Paikaray,
Ritwick Dutta, Rahul Choudhary, Ms. K. V. Bharathi Upadhyaya, Kedar
Nath Tripathy, Sibo Sankar Mishra, Vijay Kumar, Ms. Manjeet Kirpal,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
1. The broad issue involved in these appeals and writ petitions is
"Whether a land covered under a special order issued by the Government
of Haryana under Section 4 of the Punjab Land Preservation Act, 1900
(for short, 'PLPA') is a 'forest land' within the meaning of the Forest
(Conservation) Act, 1980 (for short, 'the 1980 Forest Act')?"
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FACTUAL ASPECTS
2. Civil Appeal No.10294 of 2013, Civil Appeal No.8454 of 2014,
Civil Appeal No.8173 of 2016 and Civil Appeal No.11000 of 2013 take
exception to the orders passed by the National Green Tribunal (for short,
'the NGT').
3. Civil Appeal No.10294 of 2013 takes exception to the order
dated 03rd May 2013 passed by the NGT in Original Application No.42
of 2013. The said application was filed for inviting the attention of the
NGT to the illegal non-forest activities of the encroachers on the lands
bearing Khasra Nos.1359, 1374 and 1378 of Village Anangpur Tehsil
Ballabhgarh, District Faridabad in the State of Haryana. The NGT passed
the impugned order restraining the carrying on of any non-forest activities
on the subject lands. The NGT proceeded on the footing that the lands
at village Anangpur covered by the order dated 18th August 1992 issued
under Section 4 of PLPA were forest lands within the meaning of the
1980 Forest Act. Before the said order dated 18th August 1992 was
passed, a notification dated 10th April 1992 under Section 3 of PLPA
was issued notifying the entire area covered by Ballabhgarh Tehsil of
Faridabad District. The appellants are running marriage halls on the land
subject matter of the said order dated 18th August 1992, issued under
Section 4 of PLPA.
4. Civil Appeal No.8173 of 2016 impugns the order dated 16th
May 2016 passed by the NGT in Original Application No.519 of 2015.
In Original Application No.519 of 2015, a prayer was made to stop the
commercial and non-forest activities on the lands bearing Khasra No.182
Min, RECT No.61, Kila No.19 (8-0), 20/1(0-7) and 22/2 (7-17) of Village
Ankhir, Tehsil Ballabhgarh, District Faridabad in the State of Haryana.
The said lands were the subject matter of another order issued on 18th
August 1992 by the Government of Haryana in the exercise of the power
under Section 4 of PLPA in respect of certain lands in village Ankhir.
The NGT held that the lands covered by the said order under Section 4
were forest lands within the meaning of the 1980 Forest Act.
5. Civil Appeal No.11000 of 2013 takes exception to the same
order dated 03rd May 2013 passed by the NGT in Original Application
No.42 of 2013, which is also the subject matter of challenge in Civil
Appeal No.10294 of 2013. The appellants claim to be the owners of a
restaurant on the land subject matter of the order dated 18th August
1992, issued under Section 4 of PLPA.
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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6. Civil Appeal No.8454 of 2014 also takes exception to the same
order dated 03rd May 2013 of the NGT. The appellants therein are having
marriage halls on the subject land.
7. The petitioners in Writ Petition (Civil) No.1031 of 2021 have
invoked Article 32 of the Constitution of India. The petitioners claim to
be the holders of the lands in Villages Anangpur, Ankhir and Mewla
Maharajpur (for short, 'the said three villages') in Tehsil Ballabhgarh,
District Faribadad in the State of Haryana. The lands held by them are
the subject matter of the three separate orders dated 18th August 1992
issued under Section 4 of PLPA in respect of certain lands in the said
three villages. The petition is based on a Public Notice dated 21st August
2021 issued by the Municipal Corporation of Faridabad informing that in
compliance with the orders passed by this Court, a time of two days has
been granted to the members of the public to remove illegally constructed
farm houses/banquet halls/ structures on forest lands, failing which the
Municipal Corporation and Forest Department of the State Government
will undertake action to remove the said structures on 23rd August 2021.
In the writ petition, it is contended that the said notice was issued based
on the orders passed by this Court from time to time in the Petitions for
Special Leave to Appeal (Civil) Nos.7220-7221 of 2017 (Municipal
Corporation of Faridabad v. Khori Gaon Residents Welfare
Association through its President). A declaration was prayed for that
the orders dated 18th August 1992 issued under Section 4 of PLPA were
illegal apart from praying for the other reliefs. It was contended that the
said orders dated 18th August 1992 were illegal as the compliance with
the mandatory provisions of Sections 3, 6, 7 and 14 of PLPA was not
made. A prayer was also made for issuing a writ of mandamus to the
State of Haryana to notify and implement the Punjab Land Preservation
(Haryana Amendment) Act, 2019 (for short, 'the 2019 Amendment Act').
8. The petitioner in Writ Petition (Civil) No.1008 of 2021 claims to
be a resident of Village Ankhir. He claims to be the owner of the land
bearing Khasra Nos.32 and 39 of Village Ankhir. One of the contentions
raised by the petitioner is that the construction on the subject lands was
made before 18th August 1992. Therefore, a direction is sought to restrain
the respondents from disturbing the peaceful possession of the petitioner
over the subject land and from demolishing structures thereon.
9. The petitioners in Writ Petition (Civil) No.1320 of 2021 claim to
be the residents of Village Old Lakkarpur Khori. They contend that the
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Faridabad Municipal Corporation acting in collusion and connivance with
the owners of the hotels and farmhouses mentioned in the petition has
illegally demolished their structures. It is contended that the said Municipal
Corporation has implemented orders passed by this Court in the Petitions
for Special Leave to Appeal Nos.7220-7221 of 2017 by picking and
choosing some structures while not disturbing the hotels and farmhouses
constructed on the lands subject matter of the orders passed under Section
4 of PLPA. The prayer in the petition is for issuing a writ of mandamus,
directing the respondents to restore possession of the petitioners in respect
of their residential structures in Village Old Lakkarpur Khori.
SUBMISSIONS OF THE PETITIONERS/APPELLANTS
10. Shri Vikas Singh, the learned Senior Counsel appearing for
the petitioners in Writ Petition (Civil) No.1031 of 2021, has made detailed
submissions. His primary submission is that merely because the subject
lands are covered by the notifications/orders issued by the State of
Haryana under Sections 3, 4 and 5 of PLPA, the same cannot be ipso
facto treated as forest lands within the meaning of the 1980 Forest Act.
He submitted that though the lands in question have been shown as
unclassified forests in the records of the State Forest Department, it is
not conclusive as the Forest Department is only a supervisory department.
He invited our attention to the scheme of PLPA and particularly, Sections
3, 4 and 5. He pointed out that a notification under Section 3 of PLPA
can be issued only when, according to the opinion of the State
Government, conservation of sub-soil water or the prevention of erosion
is needed in any area subject to erosion or likely to become liable to
erosion. He submitted that the orders under Sections 4 and 5 of PLPA
could only be issued in respect of the lands covered by a valid notification
under Section 3. His submission is that issuing a proper notification under
Section 3 of PLPA is a sine qua non for issuing the orders under Sections
4 and 5 of PLPA. His submission is that a notification under Section 3 of
PLPA was not issued regarding any of the lands in the said three villages.
He relied upon the notification dated 17th October 1989 issued under the
Punjab Land Revenue Act, 1887 (for short, 'the Land Revenue Act')
and contended that by the said notification, the State Government varied
the limits of Tehsil Ballabhgarh, District Faridabad by excluding the area
of the said three villages. He submitted that after 17th October 1989, a
notification under Section 3 of PLPA was not issued regarding the lands
in the said three villages. Therefore, the orders issued in respect of the
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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three villages under Sections 4 and 5 are illegal. He pointed out that
after the amendment made in 1926 to PLPA, the orders contemplated
under Sections 4 and 5 could be issued only for a temporary period. He
submitted that once the period specified in the orders under Sections 4
and 5 expires, the restrictions imposed by the said orders cease to apply.
He pointed out that in any case, the orders dated 18th August 1992 issued
under Section 4 of PLPA prohibit certain activities such as clearing or
breaking up of lands and quarrying of the stones, etc., without permission
of the authorities mentioned therein. Thus, the only restriction imposed
by the orders under Section 4 is of prohibiting certain activities without
obtaining prior permission from the authorities mentioned therein. He
urged that the provisions of PLPA are not intended to protect any forest
or forest activities.
11. He invited our attention to the provisions of the Indian Forest
Act, 1927 (for short, 'the 1927 Forest Act'). He submitted that the Act
deals with three categories of forest lands. The first category is of the
reserved forests covered by Sections 3 to 27. The second category is of
the protected forests or waste-lands which are the property of the
Government and not included in the reserved forests. Sections 29 to 34
enable the State Government to notify such lands as protected forests.
The third category is of private lands. Sections 35 to 38 allow the State
Government to regulate or prohibit certain activities, such as, breaking
up or clearing of land for cultivation, etc., in any forest or waste lands.
He pointed out that the important difference between Section 4 of PLPA
and Section 35 of the 1927 Act is that Section 4 contains permissive or
enabling provisions, and Section 35 is completely prohibitory. He urged
that what is prohibited under Section 35 cannot be permitted even by the
authorities. He submitted that even the lands covered by Sections 35 to
38 of the 1927 Act, which are private lands with forests, do not vest in
the Government. He pointed out that the acquisition of such lands can
be made under the Land Acquisition Act, 1894 by the State Government
or upon the request of the owners, which should be made within not less
than three months from the notification issued under Section 35 and not
later than twelve years from the date of such notification. He urged that
the 1927 Act is the appropriate legislation dealing with forests. The fact
that the provisions of Sections 35 to 38 dealing with private lands have
been included in Chapter V of the 1927 Act fortifies the submission of
the petitioners that PLPA is not a legislation which deals with or is intended
to deal with forests on private properties.
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12. Without prejudice to the submission that PLPA does not deal
with forests at all, the learned senior counsel submitted that after the
1927 Forest Act came into force, the provisions of the PLPA, to the
extent to which the same deal with lands which fall within the domain of
the 1927 Forest Act, became inoperative being repugnant to the 1927
Forest Act. The 1927 Forest Act is a central legislation, which must
prevail. Hence, if any private land is to be treated as a forest land, the
same must satisfy the tests laid down in Chapter V of the 1927 Forest
Act.
13. Another limb of his argument is that the subject lands were a
part of the controlled area notified under Section 29 of the Faridabad
Complex (Development and Regulation) Act, 1971 (for short, 'the 1971
Act') and in fact, the final development plan covering the subject lands
was prepared and notified on 17th December 1991. The development
plan under the 1971 Act is prepared after following a detailed procedure
of assessment of areas which are likely to be notified as controlled areas
for the purposes of planned development. Once a land is designated as
a controlled area, it will cease to be a forest.
14. The learned senior counsel urged that as mandated by Section
6 of PLPA, no inquiry was conducted before imposing the regulations
and restrictions under Sections 4 and 5 of PLPA. Public notice of the
Government Orders dated 18th August 1992 was not published in
accordance with Section 7 of PLPA. Moreover, under Section 7(b), the
land owners are entitled to receive compensation from the State
Government on account of restrictions imposed by Sections 4 or 5 of
PLPA. But the land owners affected by the orders dated 18th August
1992 have not been paid any compensation. He submitted that even
Section 37 of the 1927 Forest Act provides for payment of compensation
to the owners of the private lands having a forest. He urged that assuming
that the orders dated 18th August 1992 under Section 4 are legal, the
petitioners ought to have been paid adequate compensation. He submitted
that once the 2019 Amendment Act is allowed to be implemented by
modifying the order dated 1st March 2019 passed in Writ Petition (Civil)
No.4677 of 1985, the entire issue will be ironed out. He submitted that
the 2019 Amendment Act seeks to strike a balance between the rights
of the land owners and the need to have environmental protection.
15. Referring to the decision of this Court in the case of T.N.
Godavarman Thirumulkpad v. Union of India and Ors.1 (1997
1 (1997) 2 SCC 267
NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.
[ABHAY S. OKA, J.]
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Godavarman's case), he submitted that the said decision does not deal
with PLPA. He also invited our attention to the further order passed in
the case of T. N. Godavarman Thirumulkpad v. Union of India and
Ors.2 (2008 Godavarman's case) and submitted that this Court considered
lands covered by the orders under Sections 4 and 5 of PLPA only in the
context of carrying on mining activity. The core issue of whether the
lands subject matter of the orders under Section 4 and 5 of PLPA ipso
facto become forest lands under the 1980 Forest Act is not considered
by this Court. He also commented upon another decision of this Court in
the case of M.C. Mehta v. Union of India and Ors.3 (1st M.C.Mehta
case). He submitted that what is considered by this Court is the stand of
the Forest Department of the State Government that the areas notified
under Sections 4 and 5 of PLPA are not forests. He pointed out that
while rejecting the said contention, this Court has not dealt with the core
issue of the legal effect of the orders issued under Sections 4 and 5. The
same is the argument made by him about a decision of this Court in the
case of M.C. Mehta v. Union of India & Ors.4 (2nd M.C. Mehta case).
However, he submitted that in the case of B.S. Sandhu v. Government
of India and Ors.5, this Court has categorically held that the lands
covered by the orders under Sections 4 and 5 of PLPA may or may not
be forest lands within the meaning of the 1980 Act.
16. The learned counsel made extensive submissions on the
decisions of this Court in the case of M.C. Mehta (Kant Enclave
Matters, In Re.) v. Union of India & Ors.6(3rd M.C. Mehta case).
His submission is that though this Court has dealt with the issue raised
by the applicant (R. Kant & Co.) about the order dated 18th August
1992 issued under Section 4, the decision is per incuriam as this Court
has failed to consider and follow the binding decision of a co-ordinate
Bench in the case of B.S. Sandhu5. Moreover, he has submitted that
the applicant in the said case did not challenge the validity of the order
dated 18th August 1992 made under Section 4 of PLPA.
17. Relying upon various maps tendered across the bar, he urged
that if the lands covered by the notifications/orders under Sections 3, 4
and 5 of PLPA are to be treated as forests, the entire Districts of Faridabad
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and Gurugram will have to be treated as forests under the 1980 Forest
Act, which will have disastrous consequences.
18. The learned counsel appearing for the appellants in Civil Appeal
No.8173 of 2016 firstly urged that the Faridabad Tehsil has not been
notified under Section 3 of PLPA. He pointed out that Ballabhgarh and
Faridabad are the Tehsils within District Faridabad. The notification under
Section 3 of PLPA dated 10th April 1992 is only in respect of Ballabhgarh
Tehsil. His submission is that there was no notification issued under
Section 3 of PLPA in respect of the land of the appellants in village
Ankhir and therefore, the order under Section 4 is illegal. He submitted
that the 1927 Forest Act provides for a grant of compensation in respect
of the private lands declared as forests. He submitted that there is an
inconsistency between the 1927 Forest Act which is a Central legislation
and PLPA which is a State Legislation. He urged that under Sections 4,
29 and 35 of the 1927 Forest Act, there is a provision to declare lands of
different categories as forests. However, the same can be done only
after prior notice and after granting an opportunity of being heard to the
affected persons. Moreover, under Section 37 of the 1927 Forest Act,
there is a provision for acquiring private land declared as a forest and
consequently, there is a provision regarding payment of compensation.
Assuming that the lands covered by the orders issued under Section 4
and 5 of PLPA are forests under the 1980 Forest Act, there is no provision
for giving a hearing to the owners/affected persons before issuing the
orders. There is no provision for acquiring such lands and only a limited
compensation is payable under PLPA to the owners. He pointed out the
earlier affidavits filed on behalf of the State of Haryana. The First
Affidavit is of Shri Banarsi Dass, Principal Chief Conservator of Forests,
Haryana which is dated 08th December 1996. He also pointed out the
affidavit dated 25th February 1997 filed by Shri S.K. Maheswari,
Commissioner and Secretary to the Government of Haryana, Forest
Department. He submitted that assuming that the contentions raised in
both the affidavits are correct, the area covered by the notifications
under Sections 4 and 5 of PLPA will continue to be the forest only
during the currency of the periods specified in the orders. The learned
counsel also relied upon the decisions of this Court in the case of B. S.
Sandhu5 in support of his case that the lands covered by the orders
passed under Sections 4 and 5 are not necessarily forests within the
meaning of the 1980 Forest Act. He submitted that the limited object of
PLPA was to preserve sub-soil water and to stop soil erosion. He
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submitted that PLPA was never intended to deal with forests or forest
lands. He submitted that whether a particular land is a forest within the
meaning of the 1980 Forest Act, is an issue to be considered and decided
in the facts of each case. Lastly, he urged that Section 4 of PLPA prohibits
only certain activities without permission of the authorities named therein.
This is an indication that the lands covered by the orders under Section
4 are not forests.
19. The submissions of the appellants in Civil Appeal No.10294 of
2013 are also similar. In addition, a submission was made that as required
by Section 7 of PLPA, notifications/orders under Sections 3, 4 and 5
were not published in vernacular language.The appellants also relied
upon the provisions of Section 29 of the 1971 Act and Section 27 of the
National Capital Region Planning Board Act, 1985 (for short, 'the NCR
Act'). He submitted that the NCR Act will have an overriding effect
over PLPA, which is a State Act.
THE SUBMISSIONS OF THE STATE GOVERNMENT
20. The learned Solicitor General of India appearing for the State
Government extensively relied upon the Additional Affidavit filed by Shri
Suresh Dalal, Addl. Principal Chief Conservator of Forest, Haryana. He
submitted that the effect of the 1980 Forest Act is that except for certain
purposes mentioned in Section 2, forest lands can always be diverted for
non-forest use with the prior permission of the Central Government.
Our attention was invited to various provisions of PLPA and amendments
carried out thereto from time to time. He submitted that the Statement
of Objects and Reasons of the 2019 Amendment Act makes it clear that
the object of PLPA was not to extinguish property rights. The learned
counsel urged that the main object was to prevent erosion of soil and
conservation of sub-soil water. It was contended that PLPA has no
connection whatsoever with the issue of forests. He submitted that the
only decision of this Court that deals with the effect of the orders under
Sections 4 and 5 is in the case of B. S. Sandhu5, which clearly holds
that a land covered by such orders may or may not be a forest. His
submission is that the decision in the 3rd M.C. Mehtacase6 ignores the
binding decision of a co-ordinate Bench in the case of B. S. Sandhu5.
The learned counsel clarified the stand taken on oath by the State
Government in earlier proceedings. He submitted that in the case of
Panchkula, Ambala, Yamunanagar, Gurugram, Faridabad and some other
Districts, practically 100% area had been notified under Sections 3, 4
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and 5 of PLPA, and therefore, the entire area covering the said Districts
cannot be a forest. It was pointed out that about 39.35% of the
geographical area of the State of Haryana has been notified under PLPA.
His submission is that all the lands notified under PLPA cannot be treated
as forest lands under the 1980 Forest Act as the consequences thereof
will be disastrous. Our attention was invited to paragraph 81 of the said
Additional Affidavit, in which it is pointed out that about 59 public projects
have come up in the areas notified under Sections 3, 4 and 5 of PLPA.
The projects/structures include CRPF Group Centre, Terminal Ballistic
Research Laboratory, Police Lines, Government ITI College, etc.He
laid emphasis on the 2019 Amendment Act. It was submitted that as
there is no challenge to the validity of the 2019 Amendment Act, the
State Government may be permitted to implement the same. The learned
counsel further stated that the only factual statement made in the earlier
affidavits dated 08th December 1996 and 25th February 1997 is that the
areas notified under Sections 4 and 5 of PLPA were being shown as
State regulated forest areas during the currency of the notifications.
However, that practice was discontinued later. The affidavits do not
deal with the status of the notified lands.
SUBMISSIONS OF THE INTERVENORS/APPLICANTS
21. The learned senior counsel Shri Colin Gonsalves appearing
for the applicant in I.A. No. 33254 of 2022 firstly submitted that the
claim made by the State that very large areas of the State and in particular
Faridabad and Gurgaon districts have been notified under PLPA is
fallacious. For that purpose, he relied upon the statistics produced by the
State Government itself in its additional affidavit. He submitted that a
very tall and incorrect claim has been made by the State Government
that nearly 40% of the area of the State will be a forest if the lands
notified under Sections 3 and 4 of PLPA are treated as forest lands.
Relying upon paragraph 50 of the said affidavit, he pointed out that out
of the geographical area of 1,25,800 hectares of Gurugram district, the
special orders under Sections 4 and 5 cover only an area of 6821 hectares.
Similarly, out of the geographical area of 74,100 hectares of Faridabad
district, only an area of 5611 hectares has been covered by the special
orders under Sections 4 and 5 of PLPA. He pointed out that as stated in
paragraph 49 of the same affidavit, the total area of the forests under
the 1927 Forest Act and unclassified forests represents 3.31 per cent of
the geographical area of the State. He submitted that even the State
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Government has taken a consistent stand that the areas covered by
notifications issued under clause (a) of Sections 4 and 5 of PLPA are
forests within the meaning of the 1980 Forest Act. He submitted that the
same stand was specifically taken by the State Government in I.A. filed
by it before the High Court in the case of Vijay Bansal & Others v.
State of Haryana & others7. He urged that Section 2 of the 1980
Forest Act overrides all the laws for the time being in force in the State.
He submitted that the only effect of Section 2 of the 1980 Act is that
there is an embargo on the State Government or any other authority on
passing an order permitting the use of any forest land for non-forest
purposes without the prior approval of the Central Government. He
submitted that as far as the order dated 18th August 1992 under Section
4 of the PLPA in respect of the lands in village Anangpur is concerned,
the issue has been concluded in the 3rd M.C. Mehtacase6 by this Court
by upholding the validity of the same and by holding that the lands covered
by the order are forest lands under the 1980 Forest Act.
22. The submission of Shri Sanjay Parikh, the learned senior counsel
is that the lands notified under Sections 4 and 5 of PLPA were not only
recorded as forest lands in the Government records but were always
treated as forests by the Forest Department of the State of Haryana.
23. He submitted that the State of Haryana filed an affidavit of
Shri Banarasi Das, the Principal Chief Conservator of Forests in Civil
Writ Petition No. 171 of 1996 which was the connected case heard
along with the main case in which the decision of this Court in the case
of 1997 T.N. Godavaran's case1 was rendered. The stand taken by
the State Government in the said affidavit was that the areas covered by
the notifications issued under PLPA are forest lands. The learned counsel
submitted that this Court has deprecated an attempt made by the
Government of Haryana to take a somersault and to take a stand contrary
to what is stated in the said affidavit.
24. The learned counsel appearing for the applicant in I.A. No.
14685/2021 supported the submissions made by other applicants/
intervenors. His submission is that any land shown as forest land in the
government records will be a forest within the meaning of the 1980
Forest Act. He submitted that a narrow meaning cannot be given to the
concept of the government records by holding that only the revenue
records/land records are government records. He urged that even the
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records maintained by the Forest Department are also government
records. The learned Amicus curiae also made brief submissions.
CONSIDERATION OF SUBMISSIONS
THE APPROACH OF THE COURT IN INTERPRETING
THE LAWS RELATING TO FORESTS AND THE
ENVIRONMENT
25. While interpreting the laws relating to forests, the Courts will
be guided by the following considerations:
i.
Under clause (a) Article 48A forming a part of Chapter IV
containing the Directive Principles of State Policy, it is the
obligation of the State to protect and improve the
environment and to safeguard the forests;
ii.
Under clause (g) of Article 51A of the Constitution, it is a
fundamental duty of every citizen to protect and preserve
the natural environment, including forests, rivers, lakes and
wildlife etc.;
iii.
Article 21 of the Constitution confers a fundamental right
on the individuals to live in a pollution-free environment.
Forests are, in a sense, lungs which generate oxygen for
the survival of human beings. The forests play a very
important role in our ecosystem to prevent pollution. The
presence of forests is necessary for enabling the citizens to
enjoy their right to live in a pollution-free environment;
iv.
It is well settled that the Public Trust Doctrine is a part of
our jurisprudence. Under the said doctrine, the State is a
trustee of natural resources, such as sea shores, running
waters, forests etc. The public at large is the beneficiary of
these natural resources. The State being a trustee of natural
resources is under a legal duty to protect the natural
resources. The public trust doctrine is a tool for exerting
long-established public rights over short-term public rights
and private gains;
v.
Precautionary principle has been accepted as a part of the
law of the land. A conjoint reading of Articles 21, 48A and
51-A(g) of the Constitution of India will show that the State
is under a mandate to protect and improve the environment
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and safeguard the forests.