Dr. Imotemsu Ao
Environment:
Environment is conveniently defined as the sum total of all conditions and influences that affects life supporting system. This definition lays emphasis on totality which calls for a holistic approach of environmental management.
It is now well established that the environmental degradation throughout the globe is proceeding at an unprecedented pace during the last few decades of the current century and this trend threatens the very existence of life on earth and if not mitigated, will result in imbalance before 2020 A.D (Jha, 2004)1. The increasing population, galloping technology, and economic development have contributed to the degradation of environment and the urgent need for achieving balance within nature is well appreciated now. In the modern world, higher production and consumption of profit oriented commodities are the yardstick of progress. Very often these pursuits have resulted in the use of air, water and land as dumping of ground pollutants. The experience of the last few decades has however brought into a sharp focus the fact that man must start to think of living in harmony with nature which our ancestors had advocated a few centuries back. The concept of progress which has prevailed for the last 200 years must now take into account the means to safeguard life-supporting system like air, water and land (Bami, 1990)2.
Globally, population has doubled since 1950. It may double again during the next century, before it is projected to level off at somewhere between 8-14 billions. Development of new technologies has not only created new possibilities for humankind to disrupt the functioning at the natural system, but also holds the promise of enabling us to avoid the tradeoff between environmental protection and economic development. Technology is a major determinant as to how much pollution will be produced by human consumption and production. Hence, the extent to which natural biogeochemical flows will be altered. Global environmental changes, whether climate, hydrological cycles, or ecosystem, affect human societies. The availability of fresh water resources, the productivity of costal zones, the continued viability of agricultural activities in their current locations, forestry, human health, trade patterns, human settlements, and the transportation system are among those aspects of societies which could change as a result of human alteration to the global environment. There will be new opportunities and constraints to confront in meeting basic human needs and aspirations. The environmental securities of some groups will be reduced, while other may benefit from global change. Studying the potential impact of global change from the eras to the intonation level is key to developing far sighted resource management strategies which will minimize the negative effect and enable societies to make the most of new opportunities (Moss, 1992) 3.
The Naga have always been conscious about the environment of their territories since time immemorial. Conservation of bio-resource, their judicious sustainable uses for present and future generation were considered pertinent issues by the Naga communities in order to maintain unity and stop migration. Thus, aim was towards minimal destruction to the natural habitat or resources.
Nagaland has diverse culture with each tribe having its own distinct customary practices as regards the use, ownership and transfer of land and its resources..
Article 371A of the Constitution, provides a special provision to the effect that no Act of Parliament in respect of (i) religious and social practices of Nagas; (ii) Naga customary law and procedure; (iii) administration of civil and criminal justice involving decisions according to Naga customary law and (iv) ownership and transfer of land and its resources shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.
The Forest (Conservation) Act, 1980 (Act No 69 of 1980), hereinafter being referred to as the Act, has been enacted by the Parliament, with a view to check further deforestation which ultimately results in ecological imbalance. As such, the provisions made therein for the conservation of forests and for that matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The Act has made prior approval of the Central Government for necessary de-reservation of reserved forest and use of forests for non- forest purposes.
As such, it is necessary to examine and discuss some of the relevant provisions of the Forest (Conservation) Act, 1980
Section 2 of the Act states “Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or any authority shall make, except with 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) (ii) that any forest land or any portion thereof maybe used for any non-forest purposes (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, cooperation, agency or any other organization not owned, managed and control by Government and (iv) that any forest land or any portion for the purposes of using it for reforestation.
Section 2 of the Act also takes away the power of the State Government to make any order directing de-reservation of any reserved forest or the use of any forest land or any portion thereof, for any non-forest purpose except with the prior approval of the Central Government.
Section 2 (iii) of the Act, clearly stipulates that the provision of the Act will apply to all forest lands irrespective of its ownership or classification thereof. There cannot be any doubt that Forest (Conservation) Act, 1980 would apply to any forest land whether declared as private forest or not and whether the forest is reserved forest or not.
From a bare reading of the Act, what is abundantly clear is that the State Government has no power to make any order directing de-reservation of any reserved forest or the use of any forest land or any portion thereof, for any non-forest purpose except with the prior approval of the Central Government.
Basing on the Act, the Hon’ble Supreme Court, as well as different High Courts, have also rendered several decisions some of which are worth mentioning herein. In State of Orissa -vs- Duti Sahu & Ors., reported in AIR 1997 SC.1040, the Hon’ble Supreme Court has held that any non-forest activity in the forest area without prior approval of the Central Government is banned. Similar observation has been also made in Jairaj, A.P -vs- Chief Conservator of Forest (Wildlife), Thiruvanthapuram & Ors., reported in AIR 1998 Pat. 20). In the case of T.N.Godavaraman Thirumulpal -vs- Union of India (AIR 1997 SC 1228), the Hon’ble Supreme Court, after hearing the Central Government, as well as, the Government of all the States, has held that in view of the meaning of the word “forest” in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any “forest”. In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is worth mentioning herein that even in the case of Jammu and Kashmir, which is excluded from the application of the Forest (Conservation) Act, 1980 vide Section 1 (2) of the Act, the Hon’ble Supreme Court has directed that any felling of trees in forest or otherwise or any clearance of land for execution of projects, shall be in strict compliance with the exiting Act i.e. Jammu and Kashmir Forest Conservation Act, 1990.
Moreover, from judicial decisions, it is also well settled that the provision of Section 2 of the Forest (Conservation) Act, 1980 shall prevail over the provision of the Mining Act and the Rule 24A (6) (State Bihar -vs- M/s. R.M.C Dill and Co. (P) Ltd & Ors. AIR 1998 Pat. 20).
Furthermore, if an area satisfies the description of being a forest land as defined in Section 2 (1)), it shall come within the purview of the Forest (Conservation) Act, 1980 and no permission to fell trees even in private areas cannot be granted without the prior concurrence of the Central Government (Bhagawan Bhoi -vs- State of Orissa, AIR 2002 Ori 201).
In this context, we may also refer to those cases in Tribal Areas falling under the Sixth Schedule of the Constitution of India. Paragraph 6 (2) of the Sixth Schedule has delegated the power to the Governor to delegate to the Council the functions in relation to ‘forest’ amongst other matters. However, Article 256 of the Constitution cast an obligation upon the States and the Union to the effect that the executive power of every State shall be so exercised so as to ensure compliance with the laws made by the Parliament and any existing laws which apply in that State and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose. Moreover, the District Council constituted as per the provision of the Sixth Schedule, has no power to make law in respect of management of reserve forest under paragraph 3(1) (b) of the Sixth Schedule and (ii) such executive power will be subject to the conditions, if any, imposed by the Government while entrusting the executive function in relation to forest or reserve forest under paragraph 6 (2) of the Sixth Schedule. It is therefore, very clear that the executive power of the Council in relation to Reserved Forest will be subject to provisions of the Constitution, law made by Parliament including the Forest (Conservation) Act, 1980 law made by the State Legislative and the Assam Forest Regulation, 1891 (see M/S Hills Syndicate -vs- North Cachar, Hills Autonomous Council & Ors AIR 2001 Gau 83).
Article 371A of the Constitution provides for a special status to the State of Nagaland to the effect that notwithstanding anything in the Constitution no Act of Parliament in respect of the ownership and transfer of land and its resources shall apply in the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides. As per Section 2(d) of the Nagaland Ownership and Transfer of Land and its Resources Act, 1990 (The Nagaland Act No. 1 of 1993), “Lands and its resources” means `` advantages derived from the surface of the land and all that is below it and which is valuable or is a source of money or income and includes ….. ……………………………………”
No doubt, as per Section 1(2) of Forest (Conservation) Act, 1980, the Act has been extended in whole of India, except the State of Jammu & Kashmir. However, the said provision cannot override the Constitutional provision as guaranteed under Article 371A. As such, the Forest (Conservation) Act, 1980 which has direct bearing over the ownership and transfer of land and its resources cannot be extended in the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides. However, there is no record to show that the Act has been extended by a resolution adopted by the Legislative Assembly of Nagaland. But most unfortunately, even government officials, leave aside the common people, are not sure as to whether Forest (Conservation) Act, 1980, has been extended in the State of Nagaland. There is also an instance, from which an inference may be drawn that the Forest (Conservation) Act, 1980 has been extended in the State of Nagaland by implication. In this regard, we may refer to the Deed of Agreement for Changpang Petroleum Mining Lease executed between the Government of Nagaland and the Oil & Natural Gas Corporation Ltd. Part – III Clause 2(m) of the said Agreement reads as under:
“ m) Any clause of the lease, which is violative of any provision of forest law including the Forest(Conservation) Act, 1980 shall be treated as ab-initio void.”
Be that as it may, the Forest (Conservation) Act, 1980 which has direct bearing over the ownership and transfer of land and its resources cannot be extended in the State of Nagaland, either by way of comment or by implication, unless the Legislative Assembly of Nagaland by a resolution so decides to adopt and extend the said Act, in the State of Nagaland.
(Dr. Imotemsu Ao is the Director of the Global Open University Nagaland and the above article is a research paper)
