T.N. GODAV ARMAN THIRUMULPAD v. UNION OF !NOIA AND ORS.

A 4.6. Having regard to the symbiotic relationship between the tribal people and forests, a primary task of all agencies responsible for forest management, including the forest development corporations should be to associate the tribal people closely in the protection, regeneration and development of forests as well as to provide gainful employment to people living in and around the forest. While B safeguarding the customary rights and interests of such people, forestry programmes should pay special attention to the following

One of the major cause for degradation of forest is illegal cutting and removal by contractors and their labour. In order to put an end to this practice, contractors should be replaced by institutions c such as tribal cooperatives, labour cooperatives, government corporations, etc. as early as possible;

Protection, regeneration and optimum collection of minor forest produce along with institutional arrangements for the marketing of such produce; D Development of forest villages on par with revenue villages; .,....- Family-oriented schemes for improving the status of the tribal beneficiaries; and,

- Undertaking integrated area development programmes to meet E the needs of the tribal economy in the around the forest areas, including the provision of alternative sources of domestic energy on a subsidized basis, to reduce pressure on the existing forest areas.

xxx xxx xxx F 4.8.1. Encroachment on forest lands has been on the increase. This trend has to be arrested and effective action taken to prevent its continuance. There should be no regularization of existing encroachments.

G xxx xxx xxx 4.9. The main considerations governing the establishment of forest- based industries and supply of raw material to them should be as follows:

As far as possible, a forest-based industry should raise the raw material needed for meeting its own requirements, preferably by

T.N.GODAVARMANTHIRUMULPADv. U.0.1 [SABHARWAL,J.] 593

establishment of direct relationship between the factory and the individuals who can grow the raw material by support the individuals with inputs including credit, constant technical advice and finally harvesting and transport services.

No forest-based enterprise, except that at the village or cottage level, should be permitted in the future unless it has been first cleared after a careful scrutiny with regard to assured availability of raw material. In any case, the fuel, fodder and timber requirements of local population should not be sacrificed for this purpose.

Forest-based industries must not only provide employment to local people on priority but also involve them fully in raising trees and raw-material.

Natural forests serve as a gene pool resources and help to maintain ecological balance. Such forests will not, therefore, be made available to industries for undertaking plantation and for any other activities.

Farmers, particularly small and marginal farmers would be encouraged to grow, on marginal/degraded lands available with them, wood species required for industries. These may also be grown along with fuel and fodder species on commurtity lands not required for pasture purposes, and by forest department/ corporations on degraded forests, not earmarked for natural regeneration.

The practice of supply of forest produce to industry at • concessional prices should cease. Industry should be encouraged to use alternative law materials. Import of wood and wood products should be liberalized.

The above considerations will, however, be subject to the current policy relating to land ceiling and land-laws.

xxx xxx G 4.16. The objective of this revised Policy cannot be achieved without the investment of financial and other resources on a substantial scale. Such investment is indeed fully justified considering the contribution of forests in maintaining essential ecological processes and life-support systems and in preserving genetic H

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A diversity. Forest should not be looked upon as a source of revenue. Forests are a renewable natural resource. They are a national asset to be protected and enhanced for the well being of the people and the Nation."

It is clearly a constitutional imperative to preserve and enhance forest B cover as a natural gene pool reserve.

As opposed to the above, the ground reality has been depletion of forest.

The shift in the approach of the legislation is evident from the FC Act C of 1980 when compared with the scheme underlying the Indian Forest Act, 1927 which was State oriented for conserving the Forest Policy of 1952. Further, in 1977, Forest and Wildlife were taken out from the State list and incorporated in Concurrent list. Considering compulsions of States and large depletion of forest, these legislative measures have shifted the responsibility from States to Centre. Moreover, any threat to the ecology can lead to violation of right of enjoyment of healthy life guaranteed under Article 21 which is required to be protected. The Constitution oflndia enjoins upon this Court a duty to protect environments.

The aforesaid background has been given to demonstrate that the object of amount ofNPV is to utilize the fund to conserve the ecology without in any manner affecting proprietary rights of the State Government over the land, timber or the minerals. The Notification dated 23rd April, 2004 does not deprive any State of any land timber or mineral and, therefore, there is no question of disbursement of any amount to the State. The damage to environment is a damage to the country's assets as a whole. Ecology knows no boundaries. It can have impact on the climate. The principles and parameters for valuation of the damage have to be evolved also keeping in view the likely impact of activities on future generation.

We have already noted that this matter came to be examined on Central Government filing statement showing the dismal state of affairs of the forest in the country. It is evident that despite the FC Act and the forest policy the forests have been rapidly depleting. The forest policy recognizes this fact and, in fact, was involved to check the menace of fast eroding of forest in the country. Despite constitutional amendments made effective from the beginning of 1977 and despite various environmental laws enacted between H 1974-1986 depletion of forest has not halted.

T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [SABHARWAL, J.] 595 The State of Forest Report 1995 published by Forest Survey of India A when compared with the State of Forest Report 1997 also shows that there has been considerable depletion of forest cover. It also shows the limited regeneration. A comparison of the two reveals that total forest cover of the country decreased from 638,879 sq.km. to 633,397 sq.km., thus showing a net loss of 5,482 sq.km. Further it reveals that there has been a net decrease of 17,777 sq.km. of dense forest cover of the country while open forests and mangroves have increased by 12,001 sq.km. and 294 sq.km respectively. The redeeming feature, however, is an improvement which can be seen from the State ofForest Report 200 I. Learned Amicus Curiae submits that improvement is a result of strict vigil on account of various orders passed by this Court from time to time. It cannot be doubted that it is necessary to continue the efforts for regeneration of forest.

It would also be useful to make a mention of the order dated 22nd September, 2000 passed by this Court which led to grant of sanction of rupees 1,000 crores for maintenance of forest under the 12th Finance Commission (2005-20 I 0). The said order took note of the fact that felling of the trees is far in excess of what would be justified with reference to regeneration, and the main cause is non-availability of sufficient funds. It also notices that even with regard to the felling of trees as per working plans in the last three years, the corresponding prescription for regeneration has not been implemented. It further notices that there cannot be any felling without regeneration because that will, over a period of time, only result in forest vanishing. Further, the order says that the shortfall of regeneration which has resulted in depletion of forest cover has to be made up. The court took note of the suggestion that for regeneration there should be a joint venture between State of Madhya Pradesh - a State having a large forest area, and the Central Government whereby the working capital, in whole or substantially the whole, can be provided by the Central Government and the regeneration of degraded forests carried out. Taking an overall view, it is important for the nation that in certain areas where natural forest exists, the same should be preserved and at the same time the Central Government should consider whether the deficient States should not be asked to contribute towards the preservation of the existing forest cover and the compensation/incentive given to the forest rich G States to preserve and regenerate forests. In a sense, there should be a partnership of all the States to ensure the maintenance and improvement of forest cover. It was observed that this suggestion should be considered by a Committee of Secretary (MOF) and the Secretary (MOEF) in consultation with the Chief Secretaries of all the States. H

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A Para 14.25 of the 12th Finance Commission Report deals with maintenance of forest. Noticing that several States have represented that subsequent to the restrictions placed by this Court on exploitation of forest wealth, the forests have become a net liability for the States rather than a source of revenue and maintenance of forest has become a problem due to financial constraints, these States pleaded that separate grant should be provided for maintenance of forest. Recognising that forest are a national wealth and the country as a whole has the responsibility in preserving the said national wealth, the Commission decided to recommend a grant of rupees 1000 crores spread over the award period 2005-2010 for maintenance of forest. This would be over and above what the States have been spending through their forest departments. The amount was distributed among the States based on their forest area, to be spent for preservation of forest wealth. In this light, it is not open to the State Government to contend that the amount of NPV paid by the user agency shall be handed over to them.

Reference may also be made to report of the Planning Commission D (Chapter IX) relating to forest environments in Tenth Five Year Plan (2002- 2007) which has taken note of the fact that sustainability is not an option but imperative since without it environmental deterioration and economic decline will be feeding each other leading to poverty, pollution, poor health, political upheaval and unrest. Environment cuts across all sectors of development. E The rapid increase in green house gases in the atmosphere, land degradation, deteriorating conditions of fragile eco-systems, deforestation, loss of biodiversity and environmental pollution have become subjects of serious global concern. The overall impact of these phenomena is likely to result in depletion of ozone layer, change of climate, rise in sea-level loss of natural resources, reduction in' their productivity ultimately leading to an ecological crisis affecting livelihood options for development and over all deterioration in quality of life.

From the above report, it follows that the deterioration and consequently preservation of eco-systems cannot be area or state specific and that utmost attention is required to be accorded to conservation of natural resources and for improvement of the status of our environments. The report notices the need to tackle the environmental degradation in a holistic manner in order to ensure both economic and environmental sustainability. Forests play an important role in environmental and economic sustainability. It takes note of the forests being consistently and seriously undervalued in economic and social terms. It recognizes that the economic value of the eco-system services

T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [SABHARW;\L. J.] 597 of the forests is vast though it is extremely difficult to quantify. It takes note of the fact that generally much of the land-use decision that presently drives forest change takes relatively little account of these values. The country's forest resource is under tremendous pressure. Note has been taken of the fact that India's biological diversity is reflected in the heterogeneity of its forest · cover. It is one of the 12 'mega-diversity' countries of the world. India is also at the meeting zone of three major zone of three major bio-geographic realms, namely, the Indo-Malayan (the richest in the world), the Eurasian and Afro- tropical. India also has the two richest bio-diversity areas, one in the northeast and the other in the Western Ghats. The biological diversity is being conserved through a network of biosphere reserves, national parks and sanctuaries, however, the challenges for conservation emanate from population pressures, adverse impacts of industrialization and intensifying threat from illegal trade.

The importance of conserving and managing existing natural forest and forest soils, which are very large stores of carbon, has been emphasized as it will significantly reduce greenhouse gas emissions. To develop and protect forest, a scientific management is necessary so as to enhance productivity, density and health. Forestry projects have to lay emphasis on management and rejuvenation of natural forests. The fragile eco-systems should be properly managed in order to safeguard the livelihood of millions of people.

The national development agenda must recognize the necessity of protecting the long-term ecological security. The problem area is the growing population, high degree of mechanism and steep rise in energy use which has led to activities that directly or indirectly affect the sustainability of the environment.

It is recognized that the sustainable use of bio-diversity is fundamental to ecological sustainable. The loss of bio-diversity stems from destruction of the habitat, extension of agriculture, filling up of wet lands, conversion ofrich bio-diversity sites for human settlement and industrial development, destruction of coastal areas and uncontrolled commercial exploitation. It is thus evident that the preservation of eco-systems, bio-diversity and environment whether examined on common law principle or statutory principle or constitutional principle eying from any angle it is clearly a national issue to be tackled at the national level. All initiatives are required to seriously pursue.

Dealing with inter-generational justice, it has been rightly observed that posterity shall not be treated like dirt. In an article published in 2003 C-olumbia Journal of Environmental Law (28 Colum.J.Envtl.L.185), the author says that H

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A the way in which a society cares or does not care for its dirt - its land - reflects the degree to which it cares or does not care for its own long-term future.

We may also briefly refer to Public Trust doctrine and its applicability to the matters under consideration. The Public Trust Doctrine looks beyond the need of the present generation and also suggests that certain resources are invested with a special nature. It would be instructive to make a note of a story given in by Timothy Patrick Brady in Boston College Environmental Affairs Law Review, Spring 1990 under the title 'But most of it belongs to those yet to be born'. The story relates to digging of well at the time of drought. When a Frenchman told villagers of a prudent African solution of digging well, many villagers agreed but others argued that it will bring people from other villages and they would bring their cattle and that would increase the pressure on the already precious water. The Frenchman told the villagers that why not explain to them that the well is only for your own village and they can dig their own. It was then said that 'water is not only ours, but is gift of nature from God and must be shared.' Ultimately, they concluded that it was wiser not to dig the well at all. The moral of the story is that we are trustees of natural resources which belong to all including future generation as well. The public trust doctrine has to be used to protect the right of this as also future generation.

Having regard to the above, amounts under CAMPA have to be used for regeneration of eco-system and the same cannot be handed over to any State Government on the premise that ecology is not property of any State but belongs to all being a gift of nature for entire nation. The object of the FC Act and EP Act is protection of environments. These Acts do not deal with any propriety rights of anyone. F As already stated the question as to what amount of NPV is required to be paid to achieve these object is a matter to be gone into by the experts. However, the amounts shall have to be updated from time to time after every three years. For grant of approval under Section 2 of the FC Act besides payment of NPV as being presently calculated by MOEF, the user agencies shall have to give undertakings to pay the remaining amount, if any, pending finalization of determination by the experts.

Turning now to the grant of exemption to certain projects, learned Solicitor General submitted that Government hospitals, dispensaries, non- commercial government ventures like schools, rain water harvesting tanks, sever lines, village roads etc. are the projects meant for public welfare and

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have no adverse impact on environment as such and, therefore, these cases deserve to be granted exemption. Learned Amicus Curiae has no objection to non-commercial and non-revenue earning Government public welfare projects being treated differently and granted exemption from the purview of the payment ofNPV. Submission was also made by learned counsel appearing for some of the parties that other projects like irrigation, hydro electricity or other similar projects engaged in public welfare and public utility activities too deserve to be similarly treated and granted exemption. On behalf of the National Hydro Project Corporation Ltd. (NHPC), it was submitted that dams/ hydro electric projects and other similar projects are undertaken in public interest and these will also not create environmental pollution and mere fact of these are revenue earning projects should not be taken as a ground to treat them differently. Reliance has been placed on observations made in Hindustan Motors Ltd. and Anr. v. N. Siva Kumar and Anr., [2000] l 0 SCC 664 to contend that such a project is not a pollution industry. This decision is not relevant for determining the question about levy and payment of NPV. The question is not only about these and projects referred by the Solicitor General not creating pollution but is about diversion of forest land for non-forest purpose, thereby depleting forest so as to utilize land area in setting up these projects. A distinction has to be maintained between a project set up for providing public utility but which is revenue earning, the category to which the project of NHPC falls and the government projects of the nature above referred like hospitals, schools etc., non-revenue earning projects. A balance is required to be maintained in the development and protection of environments. As already noted, the development has to be based on sustainability. If NHPC uses the forest land for non forest purposes, the payment ofNPV is to protect the ecological and bio-diversity having regard to the doctrines above referred. Generally speaking, projects like NHPC are commercial ventures. F What we have stated above is also applicable to submissions made on behalf of Grid Corporation ofOrissa (GRIDCO), State ofUttranchal and State of Madhya Pradesh. We are unable to accept the submission that wherever the government is the user agency in notified forest area, protected forest/ reserved forest etc., NPV should not be charged. Such a submission cannot G be accepted in the teeth of Section 2 of the FC Act and other environmental laws noticed hereinbefore.

The submission made on behalf of the Federation of Indian Mineral Industries about calculation ofNPV at the rate of IO per cent for major mineral and 5 per cent for minor mineral as already noted cannot be accepted. The H

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A question is not of the value of the mineral or it being high value and low volume and mineral of high volume and low value, the question is about use of the forest areas and need to protect the environments in the manner above stated. A larger public interest has to be the guiding principle and not the present interest of user agency only.

B We are of the view that the question as to which class of projects deserve to be exempted can first be examined by experts having regard to principles laid in this judgment and in receipt of the report from them, this Court would further examine the matter and issue appropriate directions. However, prima facie we feel that revenue earning projects do not deserve C similar treatment as non-revenue earning public welfare projects.

We are clear that if let loose, the benefits achieved as indicated in the State Forest Report of 200 I would be lost and we may be again where we were in 1990's or !980's and earlier period during which there was immense depletion of forest and insignificant regeneration. D The work of regeneration and also of compulsory afforestation requires special, specific and expert attention and we see no illegality in establishment of Special Purpose Vehicle (SPV) in tenns of clause 6.6 above quoted except that for present till further orders it would be necessary to monitor the establishment ofSPV. Thus, in respect of clause 6.6 in relation to establishment E ofSPV, we hold that before establishing SPV, its fonnat shall be filed in Court and SPV shall not be established without pennission of the Court. Further in our view the constitution of authority (CAMPA) is necessary to fully and effectively implement recommendation dated 9th August, 2002 made by CEC for protection of environment. F In view of the aforesaid discussion, our conclusions are:

I. Except for government projects like hospitals, dispensaries and schools referred to in the body of the judgment, all other projects shall be required to pay NPV though final decision on this matter will be taken after receipt of Expert Committee Report. G

2. The payment to CAMPA under notification dated 23rd April, 2004 is constitutional and valid.

3. The amounts are required to be used for achieving ecological plans and for protecting the environment and for the regeneration of forest and maintenance of ecological balance and eco-systems.

T.N.GODAVARMANTHlRUMULPADv. U.0.1 [SABHARWAL,J.] 601 The payment of NPV is for protection of environment and not in relation to any propriety rights.

4. Fund has been created having regard to the principles of intergenerational justice and to undertake short term and long- term measures.

5. The NPV has to be worked out on economic principles. B In view of the above, we issue following directions: A. An expert committee comprising of three experts including Ms. Kanchan to be appointed w\thin a period of one month by the Institution of Economic Growth (North Campus). c B. The committee of experts would examine the following issues:

co To identify and define parameters (scientific, bio-metric and social) on the basis of which each of the categories of values of forest land should be estimated. D (ii) To formulate a practical methodology applicable to different bio-geographical zones oflndia for estimation of the values in monetary terms in respect of each of the above categories of forest values.

(iii) To illustratively apply this methodology to obtain actual numerical values for different forest types for each bio- geographical zone in the country.

(iv) To determine on the basis of established principles of public finance, who should pay the costs of restoration and/or compensation with respect to each category of values of forests.

(v) Which projects deserve to be exempted from Payment of NP\!. c. The user agencies shall give undertakings for the further payment, if any, as may be determined on receipt of report from the expert body. D. The Special Purpose Vehicle shall be established with the permission of the Court. E The Institute shall send report of Committee of Experts within a H

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A period of four months. F. The various clauses of CAMPA shall be suitably modified in terms of this judgment within a period of one month.

List after four months.

B v.s.s. Writ Petition disposed of.