What Aarey case means for forest land classification

The question of classification of the land as forest or revenue isn’t relevant in the matter due to the SC order in the TN Godavarman Thirumulkpad vs the Union of India case, say experts

By Ishan Kukreti
Published: Monday 07 October 2019

The Supreme Court, in a special hearing on October 7, 2019, ordered the Brihanmumbai Municipal Corporation (BMC) to halt the felling of trees in the Aarey forest and asked status quo to be maintained in the area. Aarey, situated in Goregaon, is famous among nature enthusiasts for being the green lungs of the city.

The court also ordered the authorities to release people, arrested for protesting against the felling of trees.

It had admitted a Public Interest Litigation based on a letter sent to the court by a law student Rishav Ranjan, seeking a stay on the cutting of trees and the releasing of protestors.  

The order came after BMC had already cut around 1,500 trees on October 5. The Bombay High Court on October 4 had dismissed petitions to declare Aarey Colony in Mumbai as forest and refused to stop felling of more than 2,500 trees for a metro car shed project, according to media reports.

The question of classification of the land as forest or revenue isn’t relevant in the matter due to the Supreme Court’s order of December 12, 1996 in the TN Godavarman Thirumulkpad vs the Union of India, according to experts.

In the order, the apex court had observed that the Forest (Conservation) Act, 1980, was brought in to prevent deforestation and goes on to add that its nature of land classification doesn’t matter.  

“The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof,” the order read.

Moreover, the court had also said that forests will not just be areas recorded as forest land in government records, but all areas which are similar to the dictionary definition of a forest, irrespective of the classification of land.

“The word forest must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term ‘forest land’, occurring in Section 2, will not only include ‘forest’ as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership,” read the SC order.

“I am surprised that the Bombay HC felt itself bound by the principle of res judicata with regard to a previous decision of the same court. It did not acknowledge the binding nature of the SC’s Godavarman decision of 1996, which is the law of the land under Article 141 of the Constitution,” said Shomona Khanna, SC advocate and former legal advisor to the Union Ministry of Tribal Affairs.

Under the Godavarman order, the states were supposed to identify and notify forests, said Stalin Dayanand of Vanshakti, an environmental non-profit based out of Mumbai. Vanshakti is one of the parties in the Aarey case in the Bombay High Court.

“Most states have a criterion for declaring forest lands, like in Gujarat they consider patches of land, which has an area of two hectares and has 50 trees to be a forest,” Dayanand said.

Dayanand noted that the Maharashtra government has not notified any such criterion. In fact there are cases pending in this regard in the SC and the National Green Tribunal, he said.

The legality surrounding the classification of land is ambiguous.

“A reading of the court document indicates that whether or not Aarey was a deemed forest had yet to be determined by both the state government and the judiciary. In the special hearing in SC, it was stated that the area in question was unclassed state forest,” said Kanchi Kohli, senior researcher at Centre for Policy Research, an environment think-tank based out of Delhi.

“If yes, then the dictionary meaning of forests according to the SC’s Godavarman case would be applicable and prior permission for forest diversion must be sought,” Kohli said.

But, it appears that felling of trees was undertaken before the court’s verdict on deemed forest was out, she noted.

Whatever the court orders in the next hearing on October 18, this case will certainly open the pandora’s box of forest land classification in the country, Dayanand said.

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