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Below are excerpts from legal articles on environmental laws and mining laws published in Volume 1 (2011) of Environmental and Forest Law Times. The full contents of the same are reported in the volume which is available in the market. For price details and to place orders please contact:

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STATUTORY REGIME REGARDING ENVIRONMENT PROTECTION IN INDIA

By:
VIPUL KHARBANDA

In this article the author has tried to briefly cover some of the major environmental legislations in India. The article, rather than trying to provide a detailed analysis of a particular legislation tries to cover briefly the major aspects of the key environmental and pollution control legislations that are applicable under Indian laws.

The statutory regime regarding environment law chiefly employs a system of licensing and criminal sanctions to preserve the natural resources of the country and regulate their use. In recent years, the environment legislations have been used as an instrument to protect and improve the environment and control or prevent any act or omission polluting or likely to pollute the environment.

There are a large number of legislations in India which deal with the protection of environment, however in this article I shall only deal with the major ones viz:

(a) The Environment (Protection) Act, 1986;
(b) The Air (Prevention and Control of Pollution) Act, 1981;
(c) The Water (Prevention and Control of Pollution) Act, 1974;
(d) Public Insurance Liability Act, 1991;
(e) Hazardous Wastes (Management and Handling) Rules, 1989; and
(f) Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989.……………………………………

(Full Article available in Volume 1 (2011) of Environmental and Forest Law Times)


BIODIVERSITY IN INDIA: LEGAL FRAMEWORK AS A TOOL FOR CONSERVATION

By:
Deepa Mookerjee

. The author is the associate editor of All India Cases and editor of Environmental and Forest Law Times.

The aim of this article is to examine the concept and significance of biodiversity and the legal framework in India relating to biodiversity and the conservation thereof. Various judicial remedies and the importance of public participation in various programmes have also been dealt with in this article.

Biological diversity (or biodiversity) can be defined as the variety of life forms that inhabit the earth. In 1985, “biodiversity” was coined as a contraction of biological diversity. The term involves habitat diversity, plant diversity and animal species diversity within various habitats as well as the genetic diversity of individual species. This term is a relatively new entrant in the environmental jargon which includes not only what was traditionally known as wildlife and natural species but even domesticated species such as crops, livestock as well as genetic materials. One of the most widely accepted definitions of biodiversity is “the variability amongst living organisms from all sources including inter alia, terrestrial, marine and other aquatic eco-systems and ecological complexes of which they are part, this includes diversity within species, between species and of eco-system.”

Another term commonly used is ecological diversity which refers to the higher-level organisation of various species into natural communities and the interplay between these various communities as well as the physical environment that forms the ecosystem. Finally landscape diversity can be said to indicate the geography of different ecosystems across a large area as well as the connection between them.

Biodiversity is of great significance for a number of reasons. To begin with, biodiversity is known to provide humans with a variety of economic benefits. Various drugs and medicines depend on wild plants and animals. Furthermore, about 5000 species of plants are consumed by humans and thus, biodiversity also provides food security and is the basis for agriculture. In other words, biodiversity has value to humans both for use as well as non-use values. Use values would include direct uses such as forest products, food, fibres; indirect uses like the services provided by natural eco systems and biodiversity such as flood control, climate control and finally option value which can be said to be the present value of the potential of biodiversity to lead to the development of new goods such as pharmaceuticals. Non-use values would mean the intrinsic, spiritual, ethical values.

Also, it is important to maintain redundancy in an ecosystem. By this one means that it is vital to have more than one species or species group that is capable of carrying out major processes or providing important links on the food web. Biodiversity is also of scientific importance as each species gives scientists some clue as to how life had evolved and would continue to evolve on earth. In addition, biodiversity helped scientists to understand the role of each species in sustaining the ecosystems.

(Full Article available in Volume 1 (2011) of Environmental and Forest Law Times)


AN OVERVIEW OF THE MAJOR MINING LAWS IN INDIA – PART I

By:
VIPUL KHARBANDA

In India, before any entity can start mining operations in any area, it is required under law to obtain a large number of consents and permissions including those relating to labour law, taxation, mining laws and environmental laws. In this article however, we shall only deal with the major mining and environmental permissions which are required to be obtained before mining operations can be started. This article has been divided into two parts. Part I discusses the Mines Act, 1952 and the Rules thereunder, the Mines and Minerals (Development and Regulation) Act, 1957 and the environmental permissions required for mining operations in India. Part II discusses the Mineral Concession Rules, 1960 and the Mineral Conservation and Development Rules, 1988 touching upon the conditions and regulations that are specified in relation to reconnaissance permits, prospecting licenses and mining leases. It must however be kept in mind that apart from the legislations and consents discussed herein, there may be certain other consents which may be required under local (state or regional) legislations applicable to the area in which the mining operations are sought to be undertaken.

MINING LAWS
The two major central statutes which govern and regulate the operations of entities engaged in mining operations in India are the Mines Act, 1952 and the Mines and Minerals (Development and Regulation) Act, 1957, together with the rules and regulations framed under them. The Mines Act deals mainly with the issues of regulation of the mining operations and tries to look after the rights and safety of the workers in the mines by laying down standards for various equipments, etc. as well as imposing various reporting requirements on the owners of the mines. The Mines and Major Minerals Development Act, on the other hand deals with the more commercial aspects of the matter such as granting, renewal and termination of the reconnaissance permits, prospecting licenses and mining leases as well as the conditions to be imposed in the same. Therefore whilst the Mines Act is more important from an operational point of view, the Mines and Mineral Development Act has greater importance from a commercial point of view.

Minerals are a valuable natural resource being the vital raw material for infrastructure, capital goods and basic industries. As a major resource for development, it was felt that the extraction and management of minerals should be integrated into the overall strategy of the country’s economic development. The exploitation of minerals has to be guided by long-term national goals and perspectives. Just as these goals and perspectives are dynamic and responsive to the changing global economic scenario so also the national mineral policy has to be dynamic taking into consideration the changing needs of industry in the context of the domestic and global economic environment. The Ministry of Mines therefore felt it necessary to revisit the National Mineral Policy, 1993 and to spell out in a revised statement the different elements of policy, including elements newly evolved, for the development of the mineral resources of the country.

The result of the above exercise was the National Mineral Policy, 2008 which enunciates measures like assured right to next stage mineral concession, transferability of mineral concessions and transparency in allotment of concessions, in order to reduce delays which are seen as impediments to investment and technology flows in the mining sector in India. The Mining Policy also seeks to develop a sustainableframework for optimum utilisation of the country’s natural mineral resources for the industrial growth in the country and at the same time improving the life of people living in the mining areas, which are generally located in the backward and tribal regions of the country. Some of the other main features of the National Mineral Policy, 2008 are:

(a) N.M.P. recognizes that minerals are a valuable natural resource being the vital raw material for infrastructure, capital goods and basic industries and development of the extraction and management of minerals has to be integrated into the overall strategy of the country’s economic development;
(b) The exploitation of minerals has to be guided by long-term national goals and perspectives which are dynamic and responsive to the changing global economic scenario;
(c) The N.M.P. also recognizes that the country is blessed with ample resources of a number of minerals and has the geological environment for many others being a part of the ancient Gondwanaland, which includes parts of Australia, South Africa , and Latin America;
(d) N.M.P. lays out that the guiding strategy for development of any mineral should naturally keep in view its ultimate end uses in terms of demand and supply in the short, medium and long terms and this would be market oriented. However, a disaggregated approach in respect of each mineral will be adopted and a mineral specific strategy will be developed to maximise gains from the comparative advantage which the country enjoys and mineral development will be prioritized in terms of import substitution, value addition and export, in that order; and
(e) Conservation of minerals shall be construed not in the restrictive sense of abstinence from consumption or preservation for use in the distant future but as a positive concept leading to augmentation of reserve base through improvement in mining methods, beneficiation and utilisation of low grade ore and rejects and recovery of associated minerals.…………

(Full Article available in Volume 1 (2011) of Environmental and Forest Law Times)


POLITICISING THE ENVIRONMENT: FACTORS INFLUENCING INTERNATIONAL NEGOTIATIONS ON GLOBAL ENVIRONMENTAL ISSUES

By
THOMAS JOHN

Part of all international negotiations is the question of sovereignty. States need to negotiate with each other because cooperation is necessary to come to agreements that States will undertake to follow and because, if a State refuses to sign an agreement, it does not commit to the obligations under that agreement and thus is not bound to abide by them. While States are supposed to have sovereign power over their own territory and be responsible for providing for the well-being of their own citizens, environmental problems require some level of cooperation with other nations if they are to be tackled on a large scale, especially with problems such as global warming and the ensuing climate change, which cannot be dealt with on a country-specific basis. For example, no State can by itself protect its own citizens from the problems of ultraviolet radiation resulting from depletion of the ozone layer. Therefore, in order to adequately and effectively protect its own citizens, it becomes necessary for a State to cooperate with other States to come up with an insitutionalised mechanism – in this case, an international regime controlling or banning the production of ozone-degrading materials such as chlorofluorocarbons. In a way, this is a ‘pooling’ of sovereignty to create environmental regimes which are part of the ‘networks of governance’ created by States to effectively govern and protect heir citizens. However, this also means that, although each State may have legal authority only over its own territory, it is not immune to the influence of other States. This may be through various means, such as via threats of military action or trade sanctions or keeping certain issues off the political agenda and thus stalling decision-making.

DOMESTIC CONSTRAINTS ON INTERNATIONAL BARGAINING


Before we proceed further with this discussion, it is important that we first understand what we mean when we refer to a State’s interests – after all, within every State there will be a number of competing interests, so which are the ones that become the State interests represented at the negotiating table? Ultimately, in a democratic society, it is important that citizens’ voices be heard when the State is formulating an official standpoint, as merely signing an international agreement is not enough – most States have a ratification process in which the elected representatives of the people are required to ratify the agreement before it can be translated into national law. This takes on new dimensions since international treaties are increasingly dealing with obligations that signatory States are expected to impose on their citizens, rather than simply imposing obligations on the States alone. Thus, the success of international agreements depends partly on the State representatives’ ability to effectively put across their States’ interests. Interest groups within nations, therefore, lobby to ensure that their interests take precedence and are represented as the State’s interest at international negotiations. Since politicians in democratic societies depend on popular support to get and retain power, they try to pander to a number of interest groups and, when they are in power, attempt to satisfy the various groups at the domestic level while keeping in mind their ability to negotiate with other countries in the formation of international agreements………..

(Full Article available in Volume 1 (2011) of Environmental and Forest Law Times)


CLIMATIC CHANGE: AN ANALYSIS OF AFFECTIVITY OF LEGAL STRATEGIES TO CONTROL IT


By
Dr. RAGHUVINDER SINGH
CHANDRESHWARI MINHAS

The Earth we abuse and the living things we kill will, in the end, take their revenge, for in exploiting their presence we are diminishing our future - Marya Mannes, 1958.

INTRODUCTION

Humanity today faces the greatest environmental crisis in the history of human civilization. Earth is a very special planet. It supports conditions in which life flourishes. But earth is also very fragile planet. Even variation in the few degrees in the mean temperature of the earth can destroy life.

Throughout the earth’s history, there have been changes in the climate and all life form adapt naturally to this change. However, over the last 150-200 years the change has been taking place very rapidly and certain plants and animals species found it hard to adapt. Human activities can said to be responsible for the speed at which this change has occurred.

Today, we are facing with a number of environmental problems. Of all the environmental problems, climate change has become a grave problem. The Secretary General of United Nations, has describe the daunting prospect of climate change as the defining challenge of our age. There is no longer any debate that human caused climate change is actually happening. The scientific evidence of climate change keeps getting stronger and more compelling.

MEANING OF CLIMATE CHANGE/GLOBAL WARMING

Ordinarily by climate change we mean a change of the climate that alters the composition of the global atmosphere.

Climate change means a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which in addition to natural climate variability observed over comparable time periods.

Global Warming is the increase in the average temperature of the atmosphere near the earth’s surface and near the troposphere and it can occur from variety of causes, both natural and human induced. Global Warming often refers to the warming that can occur as a result of increased emission of greenhouse gases from human activities. Scientists often use the term climate change instead of global warming. This is because as the earth’s average temperature climbs, winds and oceans make heat around the globe in ways that can cool some areas, warm others and change the amount of rain and snow falling. As a result, climate changes differently in different areas.

FACTORS AFFECTING CLIMATE CHANGE

The prevailing scientific opinion on climate change is that most of the warming observed over the last 50 years is attributable to human activities.

The major reasons of climate change are human induced activities such as population growth, poverty, unchecked industrialization, vehicular pollution, greenhouse gases and deforestation.

Population growth and increasing demand for food and livelihood have put tremendous pressure on the earth’s atmosphere. It is hard to talk about climate change without talking about population. The rapid population growth in India resulted into more and more pressure on natural resources like land, water and forests. The energy intensive production technologies and prospective consumption patterns would facilitate higher consumption of commercial and biomass energy and lead to higher contributions towards growing concentration of carbon-dioxide in the atmosphere which would lead to more of global warming.

Increased rates of greenhouse (GHG) accumulation in it, due to anthropogenic activities related to fossil fuel utilization and land use – change, are lightening concern over possible climate change. There are two factors which are responsible for the greenhouse effect/global warming. They are deforestation and production of carbon-dioxide on massive scale.

Effect of global warming has been made worse by cutting down trees and forests that help by absorbing carbon dioxide. According to latest audited figures from 2003, two billion tons of carbon dioxide enters the atmosphere every year from deforestation. An estimated 20 percent global warming is caused by deforestation. All automobiles, airplane that use oil and gasoline as fuel are estimated to contribute another 20 per cent of all carbon into the atmosphere…………..

(Full Article available in Volume 1 (2011) of Environmental and Forest Law Times)


STRENGTHENING THE INDIAN FOREST SERVICE

The Indian Forest Service (IFS) came into being in 1966, to manage, conserve and develop the forest and wildlife resources of the country. However, a lack of long-term planning on annual recruitment, skill building and training in the past has been a cause of concern.

A five-member committee constituted by the Ministry in 2010, headed by Shri J.C. Kala, Former DG Forests, undertook an exercise to draw up a comprehensive recruitment plan for the next 20 years. The report of the Committee is available on the Ministry's website.

In a meeting chaired by Mr. Jairam Ramesh, Minister of State (Independent Charge) for Environment and Forests, the report of the committee was presented. This was followed by a useful discussion in which the following key points emerged : 1. Both in absolute terms, and in terms of a break down between direct recruits and promotions, present cadre strength is on par with the recommendations of the committee — an estimated 71 direct recruitments per year are a sufficient number to fill the cadre posts while keeping the pyramidal structure of the system (i.e. not top-heavy). See Annex. 1. for a broad contour of the Forestry Sector……..

(Full Article available in Volume 1 (2011) of Environmental and Forest Law Times)


DEFENDING THE SCIENCE AND DEFEATING THE NATURE: THE INDIAN PRECAUTIONS OVER GMO

By:
HARIGOVIND P.C.

“The paths of nature and of science and human action are forever parallel and never cross ”

Introduction

Every step taken by science raises hundreds of questions and justification thereto. The need for such a science will be always the game plan for scientists and that must have to answer the ethical and social debate. There runs a thread of ethics, morals, law and social concern on which the newly made science is to be tagged with. Thus the survival and reliability of every science do depend on the result of ethical and legal scrutiny made to it. Science makes more controversies when they interfere into things which are considered to be in the God's dominion. The claim of scientific world that they can manipulate and even create a life of its desire or of any disturbed the theological and ethical insight of many. Even in the present century there can be conflicting views over the science of genetic manipulations, even with all its benefits on record. This makes every State as well as the international community to regulate the genetic research and development program. It is not only the legal responsibility of a State to protect the life and dignity of a person but there is also a high demand for such regulations from the side of ethics and theology. There are enough arguments in our jurisprudence which consider ethics as a designed science.

In the interest of protecting the human environment and life of every human being, the use of Genetically Modified Organisms (G.M.O.) is to be strictly regulated. Human environment here refers to the living environment as understood and recognized under the international legal system. It has been proclaimed that :

A point has been reached in history when we must shape our actions throughout the world with a more prudent care of their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes.

Here the law recognizes an ‘environment’ which is anthropocentric. As legislation is a tool for human welfare, it is possible to hold such view. There are counter arguments from environmentalists; which are more ethical. They consider anything to be right if that tends to preserve the integrity stability and beauty of the biotic community and wrong if goes otherwise. Right to have human environment is now a well recognized right domestically and internationally. The Indian law is directly referring the right as one under Article 21 of its Constitution, where as the international law prescribes it as a requirement for the realization of right to life and allied rights. The Stockholm Declaration coins a responsibility over the human folk to protect his environment for the better enjoyment of rights. Thus it is finally for the sake of human itself that we make regulations over G.M.Os. Now the arguments herein are not to favour either the ethical or theological logic or to spirit the scientific innovations but to evaluate the international legal system and the Indian regulatory measures as to measure the level of guarantee assured to us in case of G.M.Os.

G.M.O's Environment

Genetically modified organisms can be called an organism developed using the technology of genetic engineering. Genetic engineering can be understood as a technique by which a new organism can be made that does not usually occur in the nature. G.M.Os can be termed as artificial product which can cause imbalances in the environment and hence can cause infraction to those rights mentioned earlier. The threat caused by G.M.O. will also affect one of the salient features of our nature called biodiversity. Biological diversity is recognized as a common concern of mankind. International remarks makes.

Biodiversity is the global resource combining the number of species, the genetic variety of species and the variety of eco-systems on earth.

The entire balance of the nature rests in this biological design and any unhealthy and unjustifiable interference with this nature constitutes environment pollution. That may be even an addition of G.M.O. to the atmosphere. G.M.O. and its technology have multifaceted importance in our society. It answers many social issues like food security, alternative therapeutic measures, high yield from crops and can even make gardens in deserts. G.M.O. is thus a tool to enhance the fundamental freedoms of human cult through another way.

There must be a balancing solution between these two extremes. G.M.O. and environment being unavoidable demands for human survival, a route of sustainable development feels advisable to tackle the situation. There are calls from many in favour and against the science. There is great uncertainty in identifying the real impact of every G.M.O. release into the atmosphere. This uncertainty is of two fold; one the impact of the new G.M.O. the entire ecosystem including the human beings (for toxicity) and second is usually addressed as the ‘unknown unknowns’. The later indicates certain possible mutations to the organisms so made in due course and is purely unforeseen. In India as well the agitations against Bt. cotton, Bt. brinjal etc. is based on like fears .By the end of last century itself G.M.Os. have been released into the atmosphere in large numbers. The screening of the entire process is now a burden for the State instruments. It is also important to understand that the threat to environment is not something that always roams inside the territory of any State. There are also positive reports showing high allergicity for G.M. foods among huge populations in Europe and for which consumer disputes have been raised.

G.M.Os. on the other hand can help a lot to resolve many social issues. G.M. foods have been made as a solution for the world wide crisis in food production. The pharmaceutical industries also have made vital use of the technology in producing new drugs and treatment methods. For preserving the traditional crop varieties and to develop new kinds of crops thereby promoting agriculture is another specialty of G.M. science. The use of G.M. crops also help to reduce the use of chemical pesticides and which in turn helps to enhance biodiversity. All these benefits are not to be dealt in detail here as it is already evident from the real experiences……….

(Full Article available in Volume 1 (2011) of Environmental and Forest Law Times)


NEED TO RECONCILE HUMAN RIGHTS WITH ENVIRONMENTAL LAWS TO FIGHT AGAINST TREMORS OF INDUSTRIAL DISASTERS

By:
RAGHAV KUMAR SINGH AND AMIT KUMAR PATHAK*


Introduction :

Hinduism declared in its dictum that "the Earth is our mother and we are all her children". But the children of mother earth continue to bleed its mother with the thousands cuts. And the Bhopal gas tragedy has become the best paradigm of the recent times. Bhopal gas tragedy is considered to be the Hiroshima of chemical disaster and has raised questions over the corporate social responsibility in the era where the issues like human rights and environmental safeguards have taken a centre stage in the 21st century. The torrential after effect of the Bhopal gas disaster has led to the blatant violation of the basic human rights where even after two decades; the sufferers are still in search of justice. This has posed a question in front of the legal fraternity of India, if there exists Article 21 of the Constitution which embodies right to life whereby right to live with human dignity is implicit in it, then why the compensation granted to the victims amounts to less per victim than the Indian rail road pays its employees for loss of life or injury? This paradigm of disaster has enticed the money minting industrialists to use scant safety measures to pile on the profit and endanger the lives of thousands of innocents. A scientific study after the Bhopal gas disaster manifests that even today the air and water of the union carbide plant and its surrounding areas are contaminated. Article 51 (g) of the Constitution obligates every citizen of India to protect and improve the natural environments including forests, lakes, rivers and wildlife and to have compassion for living creatures. This confers to every citizen that right to sweet water and the right to free air which further leads to the right to social security. When it comes to the industries than this obligation acquires the shape of a duty thereby providing a corresponding right to social security to the society. Thus the most pertinent question of this era is, if moral capitalism is possible in the context of a corporate socially responsible business ? The time has come where the Government has to take stringent measures to ensure that disasters like Bhopal gas tragedy does not happen in future and the industries realize their obligation not legally but morally too and whether the possibility of the industrial disaster can only be stopped by making a hybrid of all the schisms where not only the Government but the industries as well as the society actively participates in the process of carving out the possible solutions.

This research paper deals with all the above possibilities and makes an endeavor to reconnoiter the solutions so as to negate all those possibilities and conjectures that have been made with regard to this horrendous subject.

Bhopal gas tragedy : A Horrendous disaster that led to the introspection of the legal as well as the corporate bodies :
The facts and figures of the accident are as follows :
The Day : After 2nd December midnight, 3rd of December, 1984
The Time : Around 1 a.m. on Monday
The Place : Bhopal, a densely populated region in the city of Bhopal.
The Poisonous Gas : A poisonous vapor, a highly toxic cloud of methyl isocyanate, burst from the tall stacks.
The Corporate Villain : The Union Carbide pesticide plant.
Immediate deaths : 2000
Injured people : 3,00,000
Injured animals : 7000, of which 1000 killed.

On the night of December 2-3, 1984 a gas leak at a small pesticide plant in Central India owned by a subsidiary of Union Carbide Corporation devastated a whole city over 90% of the worst affected people were the poor living in the close vicinity of Bhopal's industrial area. The job of the police who went to lower class localities was clearly defined : Open doors to one-room tenants ; and pull out bodies five, six, and seven. Anees Christi, a journalist who witnessed the tragedy first hand states, "After a while we began to devalue the meaning of death. On seeing another dead body, all one felt was a twinge of sadness, rather like what one feels when an Indian batsman walks back to the pavilion". Over 70% of the exposed populations were earning subsistence wages. An estimated 50,000 are in need of alternative jobs because they can no longer do the physically demanding work that they did before. Less than 100 people affected by the gas have found regular employment under Govt. economic rehabilitation schemes. Unable to carry on with physically demanding jobs, families have become economically devastated.

This act has surely created a shudder in the legal fraternity whereby it was the first time in the history of Indian legal system that the action that like that of the mass torts took place. This act which had its repercussion on thousands of paupers living in the affected area has raised numerous questions over the consciousness of corporate bodies and the corporate social responsibility…………….

(Full Article available in Volume 1 (2011) of Environmental and Forest Law Times)


ALLAHABAD HIGH COURT PROHIBITS SAND MINING WITHOUT ENVIRONMENTAL CLEARANCE

By:
VIPUL KHARBANDA

A Notification No. S.O. 1533, dated 14.09.2006 was issued by the Ministry of Environment and Forest, Government of India, under Section 3 of the Environment (Protection) Act, 1986 (hereinafter referred to as the “2006 Notification”). In the case of Mohd. Kausar Jah v. Union of India and others, 2011 (1) FLT 493 (Alld. HC), a petition was filed in the Lucknow Bench of the Allahabad High Court complaining that the authorities of the State of U.P., in abuse of their statutory powers, were permitting and encouraging illegal mining activity by grant of mining leases without any conditions for obtaining prior environmental clearance before commencement of mining operations, in contravention of the 2006 Notification.

On behalf of the State, it was stated that mining leases for excavation of minor minerals, exclusively found in river-beds, had been granted in favour of certain persons under the provisions of the Mines and Minerals (Development & Regulation) Act, 1957 (hereinafter referred to as the “MMDR Act”) read with the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as the “Minor Mineral Rules”), after obtaining ‘No Objection Certificate’ from the concerned Divisional Forest Officer of the Forest Division. It was next argued that Notification No. 1533 dated 14.9.2006, issued by the Government of India, Ministry of Environment and Forests was not applicable to minor minerals especially in the areas, which are situated on the river-beds.

(Full Article available in Volume 1 (2011) of Environmental and Forest Law Times)


SHOP OWNERS IN FOREST LAND CANNOT CLAIM BENEFIT OF THE FOREST RIGHTS ACT, 2006

By:
VIPUL KHARBANDA

The Prescribed Authority/Deputy Director, Dudhwa Tiger Reserve Division, Pallia, Kheri, passed an order evicting a number of people who had established shops in reserved forest land and claimed to have been in possession of the concerned land since 1928. In the case of Ishwar Chand Gupta v. State of UP and others, 2011 (1) FLT 442 (Alld.-LB) the shop owners challenged this order of eviction whereby they were evicted from the forest land as also the order passed by the Appellate Authority upholding the said order. The Prescribed Authority passed the order in exercise of power provided under Section 61-B (2) of the Indian Forest Act, 1927 (as amended vide The Indian Forest (Uttar Pradesh Amendment) Act, 2000) as well as under Section 34-A of the Wild Life (Protection) Act, 1972 (as amended in 2002 & 2006).

The shop owners claimed that they were in possession over the land concerned since the time of their ancestors and were carrying on business to earn their bread and butter since 1928. They also claimed that their evictions were violative of Article 19 (1) (g) of the Constitution of India as well as the law laid down by the Hon'ble Supreme Court in the case of Chief Conservator of Forests, Government of A.P. v. Collector and others, 2003 (5) AIC 513 (SC). They also pleaded that the shops in the mandi were allotted to the petitioners in the year 1928 on yearly lease rent on the application moved by their fathers/grand fathers. Accordingly their shops were established having electricity connection etc. and they had been depositing the lease rent since 1928, which continued till 1985, when the department refused to accept the rent despite their best efforts. There was some litigation thereafter regarding the rent but subsequent to that they started depositing the rent again from 1999 till they received the order of eviction in 2010. However, their eviction from the forest land was challenged essentially on the ground that section 61-B of the Indian Forest Act, 1927 (as applicable in UP), under which the order of eviction was passed, was repugnant to the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter referred to as the “Forest Rights Act, 2006”). They also stated that the Notification dated 9th of June, 2008 issued by the Government of India, Ministry of Tribal Affairs provides that such Scheduled Tribes and Other Traditional Forest Dwellers who are not necessarily residing inside the forest but are depending on the forest for their bona fide livelihood needs would be covered under the definition of 'forest dwelling Scheduled Tribes' and 'Other Traditional Forest Dweller' as given in Section 2(c) and 2(o) of the Forest Rights Act, 2006 and as the shop owners in the mandi relied on the forest for their livelihood they would therefore be protected by the Forest Rights Act, 2006………

(Full Article available in Volume 1 (2011) of Environmental and Forest Law Times)


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