FACTS

The Governor of Orissa in exercise of power under Section 27(1) of Indian Forest Act, 1927 issued a notification, de-reserving an area of 2088 acres in Mouza Rahangol and declaring that the entire area as “de-reserved” and “dis-forested”. M/s. KVK had earlier filed a writ petition bearing WP(C) No. 3926 of 2010 challenging the notice issued by the Tahasildar, alleging that the KVK was using private forest kissam land in violation of Section 2 of the Forest Conservation Act, 1980. The said notice was challenged by KVK in further writ petition on the ground that by virtue of earlier notification, the entire land in Mouza Rahangol had been “de-reserved” and “dis-forested”.

ISSUE

(i) If a project involves forest as well as non-forest land, whether permission can be granted for the project proponent to carry on construction on non-forest land awaiting clearance on without in any manner impacting the forest land and awaiting its clearance?

(ii) Whether the location of the KVK’s thermal power plant requires wildlife clearance before any construction on the site can be permitted?

PETITIONER’S CONTENTION

Petitioners contended that part of the land over which the thermal power plant of KVK was to be built up was, classified as “forest land” and such land was covered under Section 2 of the Forest Conservation Act, 1980. They also contended that such forest land cannot be put to in a “non-forest activity”, without a clearance in terms of Section 2 of the Forest Conservation Act, 1980 and any non-forest use of the land, would require prior approval of the Central Government in terms of Section 2 of the Forest Conservation Act 1980 and since KVK do not possess any such prior approval, they should be injuncted from carrying out any non-forest activity thereon.

It is also contended that even though KVK admittedly had obtained an environment clearance under the environment Protection Act, since the site of the KVK thermal plant is within 10 Kms. of the sanctuary boundary, without obtaining the clearance of the National Wild Life Board, the KVK ought not to be allowed to proceed with the construction.

DEFENDANT’S CONTENTION

The defendants argued on behalf of UOI argued that it is a fact that “environment clearance” has been granted to the KVK, he also submits that the proposal for the buffer zone of Kapilash Wildlife Sanctuary has been sent to the MOEF for its consideration but no final decision has been taken thereon.

JUDGEMENT

The word “forest” as occurring in Section 2 of the Forest Conservation Act, 1980 will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of ownership. The word ‘forest’ must be understood according to its dictionary meaning. This description covers all statutorily recognized forests, whether designated as reserved, protected or otherwise.

On tackling the first issue, the MoEF clearly states that if work commences on non-forest land in anticipation of the approval of the Central Government for release of forest land required for the project “though the provisions of the Act may not been technically violated by starting work on non-forest land” expenditure incurred may become infructuous if diversion is not approved. It is evident that KVK are ready to apply for clearance in respect of 30 acres approximately of purported Government Forest Land and have provided a further undertaking not to carry out any construction on the said land till forest clearance is obtained and/or the Revision Case filed by the Tahasildar, Athagarh, before the Additional Commissioner, Settlement and Consolidation, Cuttack is disposed of.

The court submitted that 10 km is not a thumb rule as sought to be argued by the Petitioners. The present status of notification of “Eco-sensitive zones” is around various National Parks and Wildlife Sanctuaries. It is evident from the facts that Ministry of Environment and Forest has made notifications fixing 2.5 Kms, 5 Kms Eco-sensitive zones and in some of the cases, it has fixed 10 km as Eco Sensitive Zone.

The court finally stated that there exists no impediment to allow the KVK to proceed with construction activities keeping in view of the fact that the huge investment of nearly 1000 crores has already been made and further 4000 crores is required to be further invested, in the interest of not only the project proponent but the State interest insofar as the preferential rights to draw power and the urgent necessity of power as an infrastructure project for the development of the State and the Union of India, cannot be doubted.

CONCLUSION

Writ applications stand disposed of.