Category Archives: Environmental Law

Proposal to Transfer Forest Land to a Shrine

Posted on by
1

In news from Jammu and Kashmir, a cabinet decision has ordered the transfer of some forest land to the Shri Amarnath Shrine Board – the exact area is disputed.

It isn’t immediately clear how the government has ordered this since both Supreme Court guidelines and the Forest Conservation Act prohibit the use of forest land for non-forest purposes.

The Supreme Court had issued the following directives with reference to the conservation of forests in Jammu and Kashmir in the case of T.N. Godavarman Thirumulkpad v. Union of India & Ors. decided on December 12, 1996 decided by Justices J.S. Verma and B.N. Kirpal:

1. There will be no felling of trees permitted in any “forest”, public or private. This ban will not affect felling in any private plantations comprising of trees planted by private persons or the Social Forestry Department of the State of Jammu & Kashmir and in such plantations, felling will be strictly in accordance with law.

2. In `forests’, the State Government may either departmentally or through the State Forest Corporation remove fallen trees or fell and remove diseased or dry standing timber, and that only from areas other than those notified under the Jammu & Kashmir Wild Life Protection Act, 1978 or any other law banning such felling or removal of trees.

3. For this purpose, the State Government will constitute an Expert Committee comprising of a representative being an IFS Officer posted in the State of Jammu & Kashmir, a representative of the State Government, and two private experts of eminence and the Managing Director of the State Forest Corporation (as Member Secretary) who will fix the qualitative and quantitative norms for the felling of fallen trees, diseased and dry standing trees. The State shall ensure that the trees so felled and removed by it are strictly in accordance with these norms.

4. Any felling of trees in forest or otherwise or any clearance of land for execution of projects, shall be in strict compliance with the Jammu & Kashmir Forest Conservation Act, 1990 and any other laws applying thereto. However, any trees so felled, and the disposal of such trees shall be done exclusively by the State Forest Corporation and no private agency will be permitted to deal with this aspect. This direction will also cover the submerged areas of the THEIN Dam.

5. All timber obtained, as aforesaid or otherwise, shall be utilised within the State, preferably to meet the timber and fuel wood requirements of the local people, the Government and other local institutions.

6. The movement of trees or timber (sawn or otherwise) from the State shall, for the present, stand suspended, except for the use of DGS & D, Railways and Defence. Any such movement for such use will:
a) be effected after due certification, consignment-wise made by the Managing Director of the State Corporation which will include certification that the timber has come from State Forest Corporation sources; and
b) be undertaken by either the Corporation itself, the Jammu & Kashmir Forest Department or the receiving agency.

7. The State of Jammu & Kashmir will file, preferably within one month from today, a detailed affidavit specifying the quantity of timber held by private persons purchased from State Forest Corporation Depots for transport outside the State (other than for consumption by the DGS & D, Railways and Defence). Further directions in this regard may be considered after the affidavit is filed.

8. No saw mill, veneer or plywood mill would be permitted to operate in this State at a distance of less than 8 Kms. from the boundary of any demarcated forest areas. Any existing mill falling in this belt should be relocated forthwith.

Protecting Victoria Memorial

Posted on by
Reply

In a public interest litigation filed by environmentalist Subhas Dutta, the Calcutta High Court has banned the use of coal-based tandoors within a three kilometre radius of Victoria Memorial in an effort to protect the monument from pollution caused by the ovens. This was done taking into consideration a report compiled by the Nagpur-based National Environmental Engineering Research Institute (NEERI).

Biodiversity Authorities

Posted on by
Reply

The Biodiversity Act of 2002 provides for the constitution of Biodiversity Authorities both at the National level and at the State level.

The National Biodiversity Authority is a body corporate. It has been established by the Central Government and is headquartered at Chennai. Under Section 8 of the Act which deals with its constitution, it comprises:

No. Member Qualifications Appointment
a 1 chairperson Adequate knowledge and experience in conservation and sustainable use of biodiversity and the equitable sharing of benefits appointed by the Central Government
b 3 ex-officio members One of them is from the Ministry of Tribal Affairs and two are from the Ministry of Environment and Forests. Of the two from the Ministry of Environment and Forests, one must be either the ADG or DG of forests Appointed by the Central Government
c 7 ex-officio members One member each representing the ministries of:(1) Agricultural Research and Education, (2) Biotechnology, (3) Ocean Development, (4) Agricultural Co-operation,(5) Indian Systems of Medicine and Homeopathy, (6) Scientific and Industrial Research Appointed by the Central Government
d 5 non-official members Specialists having special knowledge representing industries, conservers, creators and knowledge holders of biological resources

At the State level, there exist State Biodiversity Boards which are dealt with in Chapter VI of the Act. These Boards are established by State Governments. They are not established in Union Territories. They are bodies corporate and are headquartered at such places as State Governments specify by notification.

Each State Biodiversity Board comprises one chairman who has adequate knowledge and experience in conservation and sustainable use of biodiversity and the equitable sharing of benefits and not more than five ex-officio members who are appointed by the State Government. The ex-officio members represent the concerned government departments. In addition to this, each Board has not more than five experts who deal with conservation, biodiversity, the sustainable use of biological resources, and the equitable sharing of resources.

The Authorities under the Water Act

Posted on by
Reply

This Water Act, 1974 was passed to:

  1. make provision for the prevention and control of water pollution
  2. maintain / restore the wholesomeness of water

In order to help ensure the realization of these aims, the Act created Boards and laboratories and provided fro penalties in case the provisions of the Act were convened.

Parliament itself can enact such legislation only under Articles 249 and 250 of the Constitution of India. However, in this case, a number of legislatures – including those of Assam, Bihar, Gujarat, Bihar, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerela, Madhya Pradesh, Rajasthan, Tripura and West Bengal – passed resolutions enabling Parliament to legislate on the subject under Article 252 of the Constitution.

Under the Act, the environmental agencies responsible for the prevention and control of water pollution are the:

  1. Central Pollution Control Board
  2. State Pollution Control Board
  3. Joint Pollution Control Board

Sections 3, 4 and 13 deal with the constitution of these Boards and Section 14 specifically deals with the composition of a Joint Pollution Control Board. Except in the case of the Secretary who is appointed, all the members of the Boards are nominated by the concerned governments i.e. the Central Government in the case of the Central Pollution Control Board, the State Government in the case of the State Pollution Control Board. The Central Government is the concerned government in the case of a Joint Pollution Control Board although the participating States / Union Territories are responsible for nominating the members who represent tem.

Each Pollution Control Board is a body corporate headed by a Chairman who has either:

  1. special knowledge or adequate experience in respect of matters related to environmental protection or
  2. knowledge and experience in administering institutions dealing with environment protection.

He is a full time member of the Central Pollution Control Board and each Joint Pollution Control Board but, in a State Pollution Control Board, he may be either a part time or a whole time member.

A Joint Pollution Control Board such as that of Tamil Nadu and Pondicherry may be constituted by an agreement entered into by:

1. two or more governments of contiguous states under Section 13 (1)(a)

2. the Central Government (in respect of one or more Union Territories) and one or more States contiguous to such Union Territories under Section 13 (1)(b)

The period for which a Joint Pollution Control Board is operational is specified in the agreement which creates it as is the possibility of its renewal.

Each Pollution Control Board has a full time member Secretary who possesses qualifications, knowledge and experience of the scientific, management or engineering aspects of pollution control.

Under Section 5, ordinarily, the term of a member of a Pollution Control Board is three years unless he is the Secretary, or has been nominated to the Central Pollution Control Board as a member of a State Board or local authority, or as a representative of a Public Sector Unit. In such cases, members cease to be members as soon as they cease to hold the office by virtue of which they were appointed.

The members of Pollution Control Boards are:

    Sr. No. Description CPCB SPCB JB u/s 13 (1)(a) JB u/s 13 (1)(b)
    1 Officials representing the concerned government ≤ 5 ≤ 5 2 from each State 2 from each Union Territory
    2 Persons from amongst the members of State Boards of whom ≤ 2 are from local authorities functioning within States) ≤ 5 – – –
    3 Non-officials to represent the interests of fishery, agriculture, trade, industry or any other interest which the concerned Government thinks should be represented ≤ 3 ≤ 3 1 by each State 1 by each Union Territory
    4 Persons representing companies or corporations owned / controlled / managed by the Government 2 2 2 2
    5 Persons form amongst the members of local authorities functioning within the State – ≤ 5 1 from each State 1 from each Union Territory

Members continue to hold office even after the expiry of their term till a successor enters office.

Any member may be removed after the concerned government has given his a reasonable opportunity to show cause against the same. Also, apart from the Secretary, any member may resign at any time by writing under his hand to the Chairman of the Board or, if he is the Chairman, to the concerned government, and his seat shall thereafter become vacant.

The seat of a member other than the Secretary may also become vacant if he is absent for three consecutive Board meetings without sufficient reason in the opinion of the Board. Also, if a member becomes subject to any of the disqualifications mentioned in Section 6 of the Act, his seat becomes vacant.

Casual vacancies are filled by fresh nominations and a person thus nominated holds office for the remainder of the term of the member in whose place he has been nominated.

Members are generally eligible for re-nomination to a Pollution Control Board.

Adoption of Rooftop Rainwater Harvesting Systems

Posted on by
Reply

It turns out that there does in fact exist a Central Ground Water Authority and that one of the things is has done is made rainwater harvesting a legal requirement in new constructions.

The Central Ground Water Board was formed by the Ministry of Environment and Forests in 1997. It exercises powers under Section 5 of the Environment Protection Act and, as its name suggests, its main job is to conserve ground water, and to educate the public about what (a) the effects of the decline in ground water levels and (b) the effect of ground water being polluted.

The 2002-2003 Annual Report of the Ministry Of Water Resources said that the CGWA had ‘directed Group housing societies, institutions, schools, hotels, industrial establishments, farm houses in notified areas of Delhi, Haryana and U.P. and all Group housing societies in NCT Delhi except those which were located in Yamuna Flood Plain area or where water level are within 8 m.b. g.l. and who are exploiting ground water to adopt rain water harvesting system in their premises’ by May 31, 2003.

The CGWA had issued a notification requiring the adoption of rooftop rainwater harvesting systems in 2001 itself.

It’s a pity that the requirement isn’t strictly enforced.

The Implementation of the Forest Rights Act

Posted on by
Reply

The basic unit for the implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act is to be the Gram Sabha. The responsibility of State Governments is to publicise the provisions of the Act, train officials to implement it and constitute the required committees.

The Forest Rights Committee

Each Gram Sabha has a Forest Rights Committee attached to it. The Committee is required to assist the Gram Sabha right from the time of receiving claims. It is to help in the verification of claims and present its findings on the nature and extent of claims to the Gram Sabha for its consideration.

The Forest Rights Committee must acknowledge every claim made in writing.

The Duties of Gram Sabhas

Gram Sabhas are required to call for claims and authorize their Forest Rights Committees to determine them. Claims should be substantiated by at least two of the pieces of evidence. They should ordinarily be made within a period of three months from the date on which they are called for although Gram Sabhas may extend the three-month period after recording the reasons for doing so in writing.

Once claims have been received, the concerned Gram Sabha must fix a date to begin the process of determining them and, if required, intimate the date to adjoining Gram Sabhas and to the Sub-Divisional Level Committee.

The Forest Rights Committee is required to actually verify claims and submits its findings in writing to the Gram Sabha. After considering the findings of the Committee, the Gram Sabha must pass appropriate resolutions and forward them to the Sub-Divisional Level Committee.

The Verification of Claims by Forest Rights Committees

After informing the concerned claimant and the Forest Department, the Forest Rights Committee is required to, inter alia, visit the site, physically verify the nature and extent of the claim, make maps delineating the area of the claim, and receive evidence from the claimant and witnesses.

If a claim has been made by pastoralists, nomadic tribes, or members of a primitive tribal group or pre-agricultural community, the Committee must ensure that they or their representatives are present when the claim is determined.

Once a claim has been determined, the Committee must record its findings and present it to the Gram Sabha.

If there are conflicting claims, the Forest Rights Committees of the Gram Sabhas involved must meet jointly to consider matter and then present their findings to their respective Gram Sabhas in writing. If the Gram Sabhas involved cannot resolve the conflicting claims, the claims must be referred to the Sub-Divisional Level Committee to be resolved.

Evidence for the Determination of Rights

Various pieces of evidence can be used to substantiate claims including public documents, Government records, orders, notifications, circulars, resolutions; Government authorised documents such as ration cards, passports, etc.; quasi-judicial and judicial records; research studies by reputed institutions such as anthropological Survey of India, traditional structures establishing antiquity such as wells, burial grounds, sacred places, as well as statements of elders other than claimants reduced to writing.

Source