NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS.

A lands or uncultivable waste lands. The High Court did not accept the said contention and held that Village Karoran has been notified under Section 3 of PLPA and is regulated by prohibitory directions under Sections 4 and 5 of PLPA. Therefore, it was held that the lands in the entire village were forests within the meaning of the 1980 Forest Act. In paragraph 18 of the said decision, this Court held thus: B “18. It will be clear from the language of Section 3 of the PLP Act, 1900 extracted above that for the better preservation and protection of any local area, situated within or adjacent to Shivalik mountain range which is liable to be affected by deboisement of forests in that range or by the action of “cho”, such Government may by notification make a direction accordingly. The expression “local area” has not been defined in the PLP Act, 1900 and may include not only “forest land” but also other land. In Section 4 of the PLP Act, 1900 extracted above, the local Government was empowered by general or special order, temporarily or permanently to regulate, restrict or prohibit various activities mentioned in clauses (a), (b), (c), (d), (e), (f) and (g) thereof. A reading of these clauses would show that activities such as cultivation, pasturing of sheep and goats and erection of buildings by the inhabitants of towns and villages situated within the limits of the area notified under Section 3 can be regulated, restricted or prohibited by a general or special order of the local Government. All these activities are not normally carried on in forests. Similarly, under Section 5 of the PLP Act, 1900, the local Government was empowered by special order, temporarily or permanently to regulate, restrict or prohibit the cultivating of any land or to admit, herd, pasture or retain cattle generally other than sheep and goats. These activities are also not normally carried on in forests.” In paragraph 19 this Court observed thus :

G “19. In our view, therefore, land which is notified under Section 3 of the PLP Act, 1900 and regulated by orders of the local Government under Sections 4 and 5 of the PLP Act, 1900 may or may not be “forest land”. Therefore, the conclusion of the High Court in the impugned order that the entire land of Village Karoran, District Ropar, which has been notified under Section H

NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS. 1109 [ABHAY S. OKA, J.]

3 of the PLP Act, 1900 and is regulated by the prohibitory A directions notified under Sections 4 and 5 thereof is “forest land” is not at all correct in law. The basis for inclusion of the entire area in Village Karoran, District Ropar, in the list of forest areas in the State of Punjab pursuant to the order dated 12-12-1996 of this Court in T.N. Godavarman B Thirumulpad v. Union of India [T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267] is legally not correct. Similarly, the conclusion of the High Court in the impugned order [Court on Its Own Motion v. State of Punjab, (2004) 4 RCR (Civil) 619 : (2005) 2 ICC 16 (P&H)] that the entire land in Village Karoran, District Ropar, having been C notified under Section 3 of the PLP Act, 1900 and being under the regulatory regime of Sections 4 and 5 of the said Act is “forest land” is also legally not correct.” What is material are the observations made in paragraph 23 of the said decision which read thus: D

“23. We have also examined the two decisions of this Court in the first and second cases of M.C. Mehta [M.C. Mehta v. Union of India, (2004) 12 SCC 118] , [M.C. Mehta v. Union of India, (2008) 17 SCC 294] cited on behalf of the State of Punjab and we find that the aforesaid decisions have been rendered in the case of Aravalli Hills in the State of Haryana and it was held therein that as the State Forest Department had been treating and showing the areas as “forest”, in fact and in law, the area was forest and non-forest activities could not be allowed in such areas without the prior permission of the Central Government under Section 2 of the Forest (Conservation) Act, 1980. In these two decisions, this Court has not enquired into the basis of inclusion of the areas in forest by the State Forest Department nor has this Court considered as to whether a land becomes “forest land” by mere inclusion of the same under the notification under Section 3 of the PLP Act, 1900. In the present case, on the other hand, the State Government has in its affidavit stated before this Court that the basis of inclusion of the entire land of Village Karoran, District Ropar, in forest areas in the records of the Forest Department of Government of Punjab H

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A was that the land was closed under the PLP Act, 1900 and we have found this basis as not correct in law.”

54Copy pinpoint54. The Bench has not gone into the scheme of the 1927 Forest Act and the object sought to be achieved by PLPA. Thus, the entire emphasis of the appellant in B.S. Sandhu’s case5 was that mere inclusion of an area in the notification under Section 3 of PLPA will not ipso facto lead to the conclusion that the area is a forest for the purposes of 1980 Forest Act.

55Copy pinpoint55. Thus, essentially in the case of B.S. Sandhu5, this Court dealt with a notification under Section 3 of PLPA which was applicable to the entire village in question. Though Sections 4 and 5 are referred in the said decision, it is not clear whether there was a special order issued under Sections 4 in respect of the lands of Mr. B.S. Sandhu. Moreover, the said decision overlooks that one of the objects of PLPA was to prevent deforestation as the same may result in erosion of soil. The D Court did not notice that the restrictions provided in Section 4 show that the same can be applied only to the lands having trappings of a forest within the meaning of the 1980 Forest Act. The decision in the case of B.S. Sandhu5, with great respect, does not take note of these crucial legal and factual aspects.

E THE OTHER ISSUES

56Copy pinpoint56. We may note here that the petitioners in Writ Petition (Civil) No.1031 of 2021 represented by the learned senior counsel Shri Vikas Singh are claiming that they are residents of Villages Anangpur, Mewla Maharajpur and Ankhir covered by three separate orders issued on 18th F August 1992 under Section 4. A perusal of the said orders on record of Civil Appeal No.10294 of 2013 will show that the orders are special orders relating to only certain specific lands mentioned therein in the schedules thereto. The lands in the schedule are specific lands described by reference to Killa or other relevant numbers. Even the area of the lands covered has been incorporated. The notifications do not relate to the entire village. The same are in respect of specific lands in the said three villages. By placing reliance on the figures quoted in the additional affidavit of the State of Haryana and by producing certain maps, Shri Vikas Singh, the learned senior counsel tried to contend that if the contentions of some of the intervenors are accepted, the entire districts of Gurugram and Faridabad will be forests within the meaning of Section

NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS. 1111 [ABHAY S. OKA, J.]

2 of 1980 Forest Act. On this aspect, what is relevant is the chart incorporated by the State Government in paragraph 50 of the additional affidavit. We are reproducing the chart for a ready reference: AREAS NOTIFIED UNDER PLP ACT, 1900 (AREA IN HECTARE) S. District Geogra- Notified area under PLP Act, 1900 B N. phical Area % of U/S 4 column 7 and/or 5 U/S 4 (By Total U/S Section with total (By General Notified 3 Geogra- special order) area phical Area order) of District 1 2 3 4 5 6 7 8 1 Panchkula 89800 4310 70476 89800 89800 100.00% 2 Ambala 157400 1613 8562 157400 157400 100.00% 3 Yamunanagar 176800 2498 72693 176800 176800 100.00% C 4 Kurushetra 153000 8 0 8 8 0.01% 5 Kaithal 231700 0 0 0 0 0.00% 6 Karnal 252000 0 0 0 0 0.00% 7 Panipat 126800 0 0 0 0 0.00% 8 Sonipat 212200 1867 0 1867 1867 0.88% 9 Rohtak 174500 221 0 221 221 0.13% 10 Jhajjar 183400 210 0 210 210 0.11% 11 Gurugram 125800 6821 125800 125800 125800 100.00% 12 Faridabad 74100 5611 14610 74100 74100 100.00% 13 Palwal 135900 25 0 135900 135900 100.00% 14 Mewat 150700 6432 130677 150700 150700 100.00% D 15 Mahendergarh 189900 1089 189900 189900 189900 100.00% 16 Rewari 159400 971 159400 159400 159400 100.00% 17 Hisar 398300 0 0 0 0 0.00% 18 Fatehabad 253800 0 0 0 0 0.00% 19 Sirsa 427700 0 0 0 0 0.00% 20 Bhiwani 328300 62 221299 328300 328300 100.00% 21 Charkhi Dadri 149500 0 92669 149500 149500 100.00% 22 Jind 270200 0 0 0 0 0.00% Total (State) 4421200 31738 1086086 1739907 1739907 39.35% E

57Copy pinpoint57. Thus, the special orders under Sections 4 and 5 in respect of 22 districts of Haryana including the districts of Gurugram and Faridabad cover only an area of 31,738 hectare, out of the total area of 44,21,200 hectares.In at least 8 districts, not a single land is governed by special orders under Sections 4 and 5. Hence, only about 7.1% of the total lands in 22 districts are covered by special orders issued under Sections 4 and F 5 of PLPA. Going by these figures of the lands covered by the special orders under Section 4 and 5, the percentage of the lands covered by special orders under Section 4 must be insignificant as compared to the total area of the districts. Thus, the picture tried to be projected by the petitioners and the State Government is completely misleading and G fallacious.

58Copy pinpoint58. In this group of appeals, we are concerned only with the three separate orders dated 18th August 1992 in relation to the said three villages. A submission was canvassed that there was no notification issued under Section 3 of PLPA covering the said three villages. It is contended H

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A that the requisite procedure was not followed. We may note here that it is too late in the day to challenge the said orders after the lapse of more than 20 years. The ground of the gross delay is itself sufficient to negative the said challenge. The State Government cannot be called upon to show compliance with procedural aspects for the first time after lapse of more than 20 years. Therefore, it will not be appropriate to entertain a challenge to the said orders on the ground of non-compliance with the procedural provisions of Sections 6 and 7 after lapse of more than 20 years. Reliance was placed on a notification dated 17th October 1989 issued by the State Government under Section 5 of the Punjab Land Revenue Act, 1887. By the said notification, the State Government excluded certain areas from the limits of Ballabhgarh Tehsil in Faridabad District. A new Tehsil was formed of the said excluded areas known as Faridabad Tehsil. However, on 10th April 1992, a notification was issued under Section 3 of PLPA in respect of the entire Tehsil of Ballabhgarh. The three special orders dated 18th August 1992 are in respect of specifically described lands in the said three villages in Tehsil of Ballabhgarh. Therefore, apart from the gross delay, it cannot be accepted that the special orders under Section 4 dated 18th August 1992 were not preceded by a general order under Section 3 of PLPA in respect of Tehsil Ballabhgarh. The three special orders specifically refer to a due inquiry made by the State Government for coming to the conclusion that prohibitions contained in the said orders are necessary for the purpose of giving effect to the provisions of PLPA.

59Copy pinpoint59. Another argument canvassed was that the said three villages are covered by controlled areas declared under the 1971 Act as well as a final development plan. In view of the language used by Section 2 of the 1980 Forest Act, the said provision overrides all other laws applicable to the State of Haryana including the Central laws. Moreover, once it is found that the lands covered by the said three orders dated 18th August 1992 are forest lands covered by clauses (ii) to (iv) of Section 2 of the 1980 Forest Act, its status as forest lands cannot be altered unless Section 2 is followed. G

60Copy pinpoint60. A vague attempt was made to contend that firstly the lands covered by special orders under Section 4 can be treated as forests within the meaning of the 1980 Forest Act only from the date of the respective orders and that it will continue to be a forest for a limited duration for which the said special orders are in force. Both the arguments do not commend us at all. An occasion for passing special orders under

NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS. 1113 [ABHAY S. OKA, J.]

Section 4 arises when the lands in respect of which special orders are sought to be issued, are forest lands. It is true that, to such lands, Section 2 of the 1980 Forest Act will apply from 25th October 1980 when the same was brought into force. Once a land is covered by the sweep of Section 2 of the 1980 Forest Act, whether the special orders under Section 4 continue to be in force or not, the lands covered by the said notifications will continue to fall in the category of forests covered by Section 2 of the 1980 Forest Act. THE 2019 AMENDMENT ACT

61Copy pinpoint61. The State Government as well as the appellants have relied upon the 2019 Amendment Act. Our attention was also invited to the order dated 01st March 2019 in Writ Petition (Civil) No.4677 of 1985 (M.C. Mehta v. Union of India & Ors.). By the said order, this Court directed that the 2019 Amendment Act shall not be acted upon without permission of this Court. I.A.No.93600/2021 has been filed by the State of Haryana in Writ Petition (Civil) No.4677 of 1985 seeking permission to implement the provisions of 2019 Amendment Act. In one of our orders passed in this group of appeals, we had observed that the said prayer can be considered in this group itself.

62Copy pinpoint62. By the 2019 Amendment Act, Section 3 has been substituted from the date of publication of the Amendment Act in the Government Gazette. Substituted Section 3 contemplates the State Government issuing E a preliminary notification before issuing a final notification under Section

3. It also provides for inviting objections to the preliminary notification and giving a hearing to the objectors. Section 3A was added which provides that the provisions of PLPA shall not apply, amongst others, to the lands included in the final development plans or any other town F improvement plans or schemes published under the provisions of the said Act of 1971, the Haryana Development and Regulation of Urban Areas Act, 1975 etc. A proviso has been added to Section 4 laying down that the period of validity of any order issued under Section 4 shall not exceed the period of validity of the corresponding notification under Section 3. Section 23 was incorporated in the principal Act by the 2019 G Amendment Act. It provides that the orders and notifications issued under PLPA shall be deemed to have been amended so as to exclude the categories of land covered under Section 3A with effect from the date of issuance or publication of such orders or notification. Moreover, clause (c) of sub-section (2) of Section 23 provides that after the expiry H

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A of the period stated in such orders or notifications, the regulations, restrictions or prohibitions imposed shall cease to exist. Another important feature of the 2019 Amendment Act is that Section 4A has been incorporated. It provides that in respect of the areas notified under Section 3, the State Government may, in the whole or any part of such areas, by general order temporarily regulate, restrict or prohibit the cutting of trees and timber. Sub-section (3) of Section 4A provides that all subsisting general orders issued under Section 4 prior to the date of commencement of 2019 Amendment Act shall be deemed to have been issued under Section 4A. A note appended to Section 4A clarifies that all the subsisting general orders issued under Section 4 or notifications made thereunder prior to the publication of the 2019 Amendment Act shall be solely for the purpose of temporarily regulating, restricting or prohibiting felling of trees and not for regulating any other activity or imposing restrictions or change in the permissible land use for such area. Sub-section (2) of Section 1 of 2019 Amendment Act is of some importance. It lays down that the said Amendment Act shall be deemed to have come into force from 01st November 1966 except unless expressly provided otherwise.

63Copy pinpoint63. In this group of petitions, we are concerned with three special orders under Section 4 issued on 18th August 1992 in respect of the said three villages. The effect of the said orders is that the lands referred to therein are forest lands within the meaning of Section 2 of the 1980 E Forest Act. Even if such orders are cancelled or amended or rescinded or their duration comes to an end, the status of the lands covered by the same as forest lands governed by Section 2 of the 1980 Forest Act cannot be altered without following the due process provided therein. Once a land is found to be a ‘forest’ within the meaning of the 1980 F Forest Act, its user for non-forest purposes will be always governed by Section 2 of the 1980 Forest Act. Secondly, clause (i) of Section 2 provides that even in the case of a reserved forest under the 1927 Forest Act, the State Government cannot pass an order declaring that the same shall cease to be a reserved forest, without the prior approval of the Central Government. Thirdly, Section 2 starts with a non obstante clause which G overrides anything contained in any other law for the time being in force in a State which will include all State and Central legislations applicable to the State. Therefore, prima facie, the 2019 Amendment Act enacted by the State Legislature would be repugnant to and violative of Section 2 of the 1980 Forest Act, if construed otherwise. Hence, whether the H 2019 Amendment Act is given effect or not, it will not change the status

NARINDER SINGH & ORS. v. DIVESH BHUTANI & ORS. 1115 [ABHAY S. OKA, J.]

of the lands covered by the special orders under Section 4 of PLPA as the said lands possess all the trappings of a forest with effect from 25th October 1980 within the meaning of the 1980 Forest Act. Therefore, it is not necessary for us in these petitions to deal with the issue whether the order dated 01st March 2019 passed in Writ Petition (Civil) No.4677 of 1985 should be modified. The said prayer will have to be considered by the Bench dealing with the said writ petition. CONCLUSIONS AND OPERATIVE PART

64Copy pinpoint64. 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. Prior permission of the Central Government is the quintessence to allow any change of user of forest or so to say deemed forest land. We may add here that even during the subsistence of the special orders under Section 4 of PLPA, with the approval of the Central Government, the State or a competent authority can grant permission for non-forest use. If such non-forest use is permitted in accordance with Section 2 of the 1980 Forest Act, to that extent, the restrictions imposed by the special orders under Section 4 of PLPA will not apply in view of the language used in the opening part of Section 2 of the 1980 Forest Act. We also clarify 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.

65Copy pinpoint65. Therefore, the lands covered by the special orders dated 18th August 1992 issued under Section 4 of PLPA will be governed by the orders passed by this Court in the Petition for Special Leave to Appeal (Civil) Nos.7220-7221 of 2017. Hence, 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 25th October 1980, without prior approval of the G Central Government, and further to restore status quo ante including to undertake reforestation/afforestation programmes in right earnest. As far as the lands covered by special orders under Section 5 are concerned, we are not making any adjudication. Therefore, the authorities will have to decide the status of the lands covered by the said orders under Section 5 on case to case basis. H

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66Copy pinpoint66. To avoid any prejudice to the affected persons, we direct that before the action of removal of the illegal structures and/or action of stopping non-forest activities is taken in respect of the lands covered by the special orders dated 18th August 1992 issued under Section 4 of PLPA, the concerned competent authority shall afford an opportunity of being heard to the affected persons and conclude such proceedings finally not later than three months from today and submit compliance report in that regard within the same time.

67Copy pinpoint67. Writ Petition (Civil) Nos. 1008 and 1031 of 2021 stand disposed of in above terms. Civil Appeal Nos. 10294 of 2013, 8454 of 2014, 8173 of 2016 and 11000 of 2013 also stand disposed of in above terms and the orders impugned passed by the NGT stand modified accordingly.

68Copy pinpoint68. As regards Writ Petition (Civil) No.1320 of 2021, the same will be governed by the directions issued in Petitions for Special Leave to Appeal (Civil) No.7220-7221 of 2017 for rehabilitation of the eligible occupants. The petitioners can always move the concerned authority for that purpose. Writ Petition (C) No.1320 of 2021 be disposed of accordingly.

69Copy pinpoint69. There will be no order as to costs.

E Ankit Gyan Appeals and Writ petitions disposed of. (Assisted by : Aarsh Choudhary, LCRA)