[Reader-list] PDP now opposes the transfer, but records show how it said the opposite(The Indian Express)

[rashneek kher]

*ON THE RECORD-Indian Express
*February 26, 2008: 'The proprietary status of forest land shall remain
unchanged'
*PDP now opposes the transfer, but records show how it said the opposite*
**
*As the PM holds an all-party meeting in Jammu and Kashmir, we reproduce the
key documents around the Amarnath land-transfer
**Memorandum for Submission to the Cabinet *
*Government of Jammu and Kashmir Civil Sectt: Forest Department
Subject:- Use of Forest Land for non-forestry purpose
1. The Forest Department has received requisitions from various
Agencies/Departments for diversion of forest land for non forestry purposes.
The Memorandum deals with the cases which were cleared by the Advisory
Committee constituted under J&K Forest Conservation Act, 1997 in its 39th
Meeting held on July 12, 2007 under the Chairmanship of the Chief Secretary.
These cases were placed before the Cabinet in its meeting on February 26,
2008. The item was "deferred" since some clarifications were necessary about
the wildlife perspective in respect of the proposal of Amarnathji Shrine
Board (discussed as case 4 of this Memorandum). Pursuant to the above, a
Committee of officers was constituted vide Government Order No. 108-Fst of
2008 dated March 17, 2008 to look into that proposal. The report of the
Committee has since been received and is attached as Annexure to this
Memorandum.
Case No.4
12. Shri Amarnathji Shrine Board (SASB) has made a requisition for diversion
of forest land measuring 39.88 hectares falling under Compartment No.
63a/Sindh in Block Kullan, Range Sindh, Sindh Forest Division for
construction/provision of buildings/hutments and other infrastructure for
visiting Yatries of Amarnath Ji Yatra at Baltal and Domail.
13. Regarding the Wildlife aspect of proposal, Pr. CCF has submitted in the
agenda as under:-
(a) Forms part of National Park, Wildlife Sanctuary, Natural Reservoir,
Biosphere Reservoir etc.
Proposed area is adjacent to Thajwas sanctuary. The uncontrolled flow of
yatris will cause pollution...
14. The recorded decision of the Advisory Committee is reproduced as under:-
"The Advisory Committee discussed this case in depth. The Chief Wildlife
Warden apprised the Committee that he has already submitted his report under
No. WLP/Tech/1971/07 dated 11.06.2007 after spot inspection on 27.5.2007,
which is reproduced as under:-
It was noticed that the proposed site for construction of Shri Amarnathji
Shrine Board Complex, falling in the compartment 63(s)/Sindh/Kullan, is
located on the right side of Sindh rivulet. The proposed complex does not
seem to have any significant impact on the ecology of Thajwas Wildlife
Sanctuary. The apprehensions of DFO Sindh and Wildlife Warden,Central that
the said complex may have adverse impact on the Wildlife Sanctuary appear to
be "over cautious" and an environmentally conservative approach. It is also
given to understand that Shri Amarnathji Shrine Board is using
pre-fabricated structures, as such likely pollution due to discharge of muck
and garbage etc should not be significant . It is presumed that Shri
Amarnathji Shrine Board will take necessary environmental safeguards as
applicable for such development projects.
In view of the above report, the Advisory Committee cleared the diversion of
the above Forest land to Shri Amarnathji Shrine Board (SASB), on the
following terms and conditions:-
i) The proprietary status of forest land shall remain unchanged.
ii) The forest land so diverted shall be utilised only for the purpose for
which it has been diverted. It shall not be transferred to any other agency
without approval of the Forest Department.
iii) The forest land so diverted shall not be mortgaged, re-assigned or
sub-leased by user agency in any manner what so ever to any other agency.
(For the rest, see adjacent document)
15. As mentioned above, following the deferment of these cases in the
Cabinet meeting on February 26,2008 a Committee under the Chairmanship of
Chief Wildlife Warden was constituted vide Govt.order No. 108-FST of 2008
dated March 17,2008 to examine the feasibility of diversion of forest land
vis-a-vis Wildlife Perspective for various developmental activities
including construction of roads in Baltal-Ranga-Domail area of Ganderbal
District as requested by Shri Amarnathji Shrine Board. The Committee has
submitted its report vide letter dated May 7, 2008 (Annexure-A). The
relevant extracts of the Committee's report are reproduced as under:-
"That the proposed camping sites of Shri Amarnathji Shrine Board (SASB)
complex comprising 39.88 hectares of forest land (30.88 Ha. At Baltal and
9.00 Ha at Domail) fall in the Forest Compartment No.63/Sindh of Sindh
Forest Division, Forest Department. Theses proposed camping sites do not
involve any area of Thajwas Wildlife Sanctuary, which is located on the left
side of river Sindh...
17. The case for diversion of Forest Land for non-forestry purpose are
required to be submitted to the Cabinet as per the provisions of the Jammu
and Kashmir Forest (Conservation) Act after clearance by the Advisory
Committee. However, Hon'ble Supreme Court of India passed directions in W.P.
(c) No. 202/1995 in the case titled T.N. Godavarman V/S Union of India &
others on 27.04.2007 as under:
"...In the circumstances,we hereby give the following directions, pending
our decision on the larger question indicated herein above:
a) The FAC as it stands today will give priority to Projects which need
immediate clearances. In this regard, it may be stated that fresh cases may
be cleared project-wise by the FAC and thereafter such clearances shall be
placed before this court for approval. We make it clear that pending the
decision of the larger question, all clearances by the FAC of fresh cases
shall be subject to approval by this Court. Before giving approval, we would
like to have responses from the CEC in respect of each clearance. In order
to avoid delay, we direct the concerned Ministry to give a copy of the
clearance to the CEC so that the CEC would give its response expeditiously.
We will examine each clearance and decide whether to grant or not to grant
the approval thereto. Once the approval is granted by this Court, the matter
may be placed before the central government for disposal in accordance with
law..."
18. The above said order was sent to the Law Department for giving its
opinion as to whether the same is applicable to J&K State. The Law
Department has opined as under:
"The order of the Hon'ble Supreme Court dated 27.04.2007 is with regard to
the Forest Conservation (Central)Act, and rules framed thereunder. The said
Act is not applicable to the State as forests continue to be in the state
list. Earlier a similar case was examined and vide UO No. LD(Opn)
2006/77-Fst dated 06.03.2007 the department was advised to move an
application before the Hon'ble Court to the effect that the Forest
Conservation Act, 1990 (Central Act) is not applicable to the State. The
State has its own Forest Act as well as Forest Conservation Act, 1997 and
seeks clarification from the Hon'ble Court. The Department is advised to
pursue the said matter vigorously with the Hon'ble Supreme Cour and awaits
clarification in the matter."
19. In the meanwhile the PCCF vide communication NO. PCCF/FC/Gen./5/106
dated 21.07.2007 approached the Central Empowered Committee constituted by
the Hon'ble Supreme Court... The CEC opined under:
" The non-forest use of the forest land falling within the State of Jammu
and Kashmir is governed by the provisions of the Jammu and Kashmir Forest
(Conservation) Act, 1990 and not by the Forest (Conservation) Act, 1980. In
view of the above, the CEC is of the view that the Hon'ble Supreme Court's
order dated 27.04.2007 regarding the functioning of the Forest Advisory
Committee constituted under Section 3 of the Forest (Conservation) Act, is
not applicable in respect of the proposals examined by the State Level
Advisory Committee constituted under the Jammu and Kashmir Forest
(Conservation) Act, 1990 as amended from time time."
20. Advice of the Law Department was sought on the opinion of the CEC and
the Law Department said as under:
"The views of the CEC regarding the applicability of the orders of the
Hon'ble Supreme Court is their opinion. The said opinion confirms the views
of this Department. However, it would be safe, as advised earlier, to bring
the legal position in the notice of the Hon'ble Supreme Court and seek their
clarification as the State has its own Forest Conservation Act of 1990."
21. Subsequently, the matter was referred to the Ld. Advocate General for
advice who said as under:
"The Forests continue to be a subject with respect to which the state
government has the power to make laws and not the Union. The Jammu and
Kashmir Forest (Conservation) Act of 1997 is applicable to the state of J&K
and the Rules have also been framed under the said Act. The J&K State Forest
(Conservation) Rules provide for the constitution of a Forest Advisory
Committee and it is within the jurisdiction of the said Forest Advisory
Committee under the J&K State Forest (Conservation) Act to give clearance of
projects for the purpose of non forestry purpose. So far as the rest of the
States are concerned, the Forest (Conservation) Act 1980 is applicable to
them. Under the aforesaid Forest (Conservation) Act Forest (Conservation)
Rules 1981 had been framed. Under rule 4 of the Forest (Conservation) Rules
of 1981 it is provided that the Forest Advisory Committee has to be
constituted and the said Forest Advisory Committee shall have the
jurisdiction to clear the projects where forest land is required for non
forestry purposes. It appears that the Hon'ble Supreme Court in WP (C)
202/1995 titled T.N. Godavarman versus Union of India had stayed the working
of the Forest Advisory Committee in terms of the Forest (Conservation) Rules
of 1981. Subsequently vide order dated 27.04.2007 the Hon'ble Supreme Court
had modified the order and had directed that the Forest Advisory Committee
constituted under the Forest Conservation Rules of 2003 as it stands will
give clearance of the projects where forest land is required for non
forestry purposes and the project would be sent to a Central Empowered
Committee, which would give its response expeditiously.
I have gone through the order dated 27.04.2007 passed by the Hon'ble Supreme
Court. Since neither the Forest (Conservation) Act of 1980 nor Forest
(Conservation) Rules made there under are applicable to the State of J&K.
The state is governed by the J&K Forest (Conservation) Act 1997 and Forest
(Conservation) Rules, 2000. The Forest Advisory Committee has been
constituted under the aforesaid Forest (Conservation) Rules, therefore, the
order dated 27.04.2007 does not have any applicability with respect to the
State of Jammu and Kashmir in as much as since the Forest (Conservation) Act
of 1980 and the rules made thereunder are not applicable to the State of
J&K. Moreso, a communication issued by the CEC on 27.07.2007 which is on
file had clarified that the order of the Hon'ble Supreme Court dated
27.04.2007 regarding the functioning of the Forest Advisory Committee under
section 3 of the Forest (Conservation) Act is not applicable in respect to
the proposals examined by the State Level Advisory Committee constituted
under the J&K Forest (Conservation) Act 1997. It is as such advised that the
order dated 27.04.2007 does not pertain to the J&K State and proposals in
J&K have to be examined by the Forest Advisory Committee constituted under
the J&K Forest (Conservation) Act of 1997 and rules made thereunder."
22. Thereafter, GAD advised the Department to place the matter before the
Hon'ble Dy. Chief Minister (Minister I/C Law) in view of two different
opinions given by the Law Department and Ld. Advocated General. Accordingly,
the matter was placed before the Hon'ble Dy. Chief Minister (Minister I/C
Law) who opined as under:
" There is no material difference between the opinion of Ld. Advocate
General and that of the Law Department. The Law Department, by way of
abundant caution, seeks to obtain the clarification of the Supreme Court. I
concur with the view of the Central Empowered Committee and the Ld. Advocate
General."
23. In view of the clarification given by the CEC constituted by the Hon'ble
Supreme Court, Ld. Advocate General, Hon'ble Dy. Chief Minister (Minister
I/C Law), the Principal Secretary to the Government Forest Department with
the approval of the Hon'ble Minister for Forests, submits the above
mentioned cases to the cabinet for taking a view and according approval for
the use of forest land for non-forestry purposes, in favour of the above
said organisations, on the terms and conditions recommended by the Advisory
Committee in its 39th meeting, which have been reproduced in this
memorandum, together with the recommendation made at para 16 of the
memorandum in respect of case no. 4.
Madhav Lal Principal Secretary to the Government of J&KDepartment of Forests
*


-- 
Rashneek Kher
Wandhama Massacre-The Forgotten Human Tragedy
http://www.kashmiris-in-exile.blogspot.com
http://www.nietzschereborn.blogspot.com