In CIVIL APPEAL NO.10294 OF 2013-SC- Lands covered by special orders u/s 4 of Punjab Land Preservation Act have all trappings of forest lands u/s 2 of Forest Act, 1980; State Govt. cannot permit its use for non-forest activities without Centre’s prior approval: SC Justices A.M.Khanwilkar, Abhay S. Oka & C.T. Ravikumar [21-07-2022]

Read Order: NARINDER SINGH & ORS.  Vs. DIVESH BHUTANI & ORS.

Mansimran  Kaur

New Delhi, July 22, 2022: Only because there is a notification issued under Section 3 of Punjab Land Preservation Act, 1900, the land which is subject matter of such notification, will not ipso facto become a forest land within the meaning of the Forest Act, 1980, the Supreme Court has observed.

The Larger Bench of Justice A.M.Khanwilkar, Justice Abhay S. Oka and Justice C.T. Ravikumar disposed of the appeals and the writ petitions wherein the  prime question of law involved was whether a land covered under a special order issued by the Government of Haryana under Section 4 of the Punjab Land Preservation Act, 1900 is a ‘forest land’ within the meaning of the Forest (Conservation) Act, 1980. The Bench said, “Thus, we hold that 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.”

Factual matrix of the case was such that few appeals were instituted against the order passed by the National Green Tribunal. The Civil appeal of 2013 was preferred against the order dated May 3, 2013 passed by the NGT in an Original Application of 2013. The appellants claimed 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. The said application was filed for inviting the attention of the NGT to the illegal non-forest activities of the encroachers on the lands situated in the State of Haryana.  In view of the same, the NGT passed the impugned order putting a restraint on any non-forest activities on the subject lands. 

The petitioners in writ petition of 2021 invoked Article 32 of the Constitution of India. They claimed to be the holders of the aforesaid lands.  The lands held by them were the subject matter of the three separate orders dated August 18, 1992 issued under Section 4 of PLPA in respect of certain lands in the said three villages.  It was the case of the petitioners that the said orders were illegal as the compliance with the mandatory provisions of Sections 3, 6, 7 and 14 of PLPA was not made.

After considering the rival conceptions of the parties, the Court first and foremost dealt with the environmental laws and also took into consideration the principle of sustainable development.  The provisions of the Forest Act , 1927, Forest Act, 1980  and  the provisions of the  Indian Constitution were also taken into account. 

The Bench clarified that  when an order is issued under Section 4 in respect of a specifically identified area which is a part of a larger area notified under Section 3 for imposing any of the specific prohibitions or restrictions provided in Section 4, such an order can be termed as a special order under Section 4. 

It was opined by the Bench 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, added the Bench. Therefore,  in respect of the lands covered by special orders under Section 4 of PLPA, the Top Court opined that 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.

The Court opined that prior permission of the Central Government is the quintessence to allow any change of use of forest or so to say deemed forest land. It was further clarified 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.

Thus, the Court noted that the lands covered by the special orders dated 18th August 1992 issued under Section 4 of PLPA would be governed by the orders passed by this Court in the petition for Special Leave to Appeal of 2017.

 Hence, the Bench held that all the concerned authorities shall take action to remove the remaining illegal structures standing on land covered by the special orders and used for non-forest activities on the said lands erected after October 25, 1980, without prior approval of the Central Government.  However, the Court also noted that the concerned competent authority shall afford an opportunity of being heard to the affected persons. 

With respect to the petition of 2021, the Court noted that the same shall be governed by the directions issued in petitions for Special Leave to Appeal of 2017 for rehabilitation of the eligible occupants.  Accordingly, the writ petitions were disposed of.