Babu Lal Jajoo vs State Of Rajasthan And Ors

In this Original Application the Applicant had submitted that the work of micro irrigation tanks was being executed by the Water Resources Department in the forest land as deposit works without seeking prior approval of the Central Government in accordance with the Forest (Conservation) Act, 1980. It was submitted that the catchment area of 38 micro irrigation tanks were falling in forest land and that the catchment area of 108 micro irrigation tanks were partially falling in the forest land. The Applicant has stated that this was decided in the coordination meeting taken by the Chief Secretary on 09.06.2015 in connection with implementation of „Four Water Concept‟. The Water Resources Development and the Soil Conservation Department was also to treat the catchment area of micro irrigation tanks in the forest land and the forest department was asked to issue directions to this effect to the concerned Divisional Forest Officers.

The Applicant has submitted that all the Respondents were also flouting the order of the Hon‟ble High Court of Rajasthan in SB Civil Writ Petition No. 11153/2011 Suo Motu Vs. State of Rajasthan passed on 29th May, 2012 in which Hon‟ble High Court had inter-alia directed that :

"The Water Resource Department of the State has already issued directions not to allow construction of anicuts more than 2 meters height. The directions have not been properly executed by other departments. The order issued by the Water Resources Department may be conveyed to all the departments so that in future anicuts may not b constructed with a height of more than 2 meters other than in exceptional cases but in those cases also it should be with the permission of the Water Resources Department.

Construction of anicut should not be permitted unless a proper survey is made to assess rainfall in the area indicating sufficiency of water for the anicuts and overflow thereupon to the catchment area of a dam, pond, Johar, nana, river etc. A survey be conducted to find out duration for which water may remain in the anicut/s. To summarise the aforesaid direction, construction of anicut/s should be only after planned development and proper survey. Presently, majority of anicuts are lying dry resulting in wastage of public money. The accumulation of water in rainy season does not justify construction of anicuts. The State Government is expected to take proper decision for construction of anicuts in future and, till then, they are restrained to construct anicut/s obstructing flow of water to a reservoir.

The Forest Department should frame scheme for development of forest, more specifically, nearby catchment areas of water reservoirs if their notified land exist therein. This will attract rain and save environment already damaged to a great extent. The efforts of the department should be to stop cutting of trees in the forest area affecting top soil of the hills resulting in deterioration of environment. The Environment Department should meaningfully co-operate with the Forest Department for proper plantation to take all measures to save environment."

The Applicant had therefore, prayed for immediate action in the matter and to stop execution of any work in the forest land without first obtaining approval of the Central Government and also to take action against the responsible officers of the Respondents.

On 09.03.2016 we had directed the Respondents to examine if the land in question falls in the forest land and if so whether forest clearance had been obtained in accordance with the Forest (Conservation) Act, 1980. We further directed on 11.05.2016 that if the disputed site was found to be within the forest land and the work was executed without obtaining the prior approval of the Central Government in accordance with the Forest (Conservation) Act, 1980 the Respondents shall take immediate action for closure of the same.

On 14.07.2016 the Learned Counsel for the State had submitted that Govt. of India had granted exemption for requirement of Forest Clearance for forest related activities within the forest land which were related to conservation and preservation of forest and wildlife including those for creating reservoir within the forests and sanctuaries. He had, therefore, prayed that the directions of this Tribunal on 11.05.2016 to be kept in abeyance till the reply of the State Govt. is filed. As prayed the directions dtd. 11.05.2016 were kept in abeyance vide our order dtd. 14.07.2016.

On 09.08.2016 we directed as follows :

"Shri Sandeep Singh, Learned Counsel appearing on behalf of the Respondents submits that copy of the Original Application, were not received and only notices have been received. As such reply could not be filed. He has however, placed before us the factual report of the matter. We would direct that replies be filed in the Original Application.

Shri Sandeep Singh, Learned Counsel has invited our attention to the definition of non forest purpose as provided under the Forest Act, 1980 and where under clause (b) the exceptions have been enlisted. At this stage, we would not like to go into the merits of the matter.

However, we would direct that the State and particularly the Forest Department should place on record the project and proposals prepared by the State Forest Department for various schemes which have been undertaken as contained in the list which was placed before us for preparation and construction of such dams and trenches. He has also submitted that it has been specifically mentioned that these dams or reservoirs which are created under the present scheme in the various forest areas would at no cost be allowed to be used for irrigation purpose or any other non forest purpose. We have seen from the document that at some places it has been mentioned as micro irrigation projects and in some cases integrated command area development or catchment area development projects. It was also explained before us that projects which have been undertaken in the forest area aimed at the checking soil erosion and also for improving the flora and fauna in the forest as during the summer season water become scarce. Sometimes it is given out that Forest Department has to provide water through tankers etc. In the light of the above, we would direct that schemes which have been conceived by the Forest Department itself where proposals and reasons for such constructions of check dams have been indicated would be placed for our perusal. In the meanwhile, it is given out that out of 40 such projects more than 35 have already been completed. At this stage we would not like to stop ongoing project, however, their fate will rest on the final outcome of this Original Application.

On 07.09.2016 we further directed the State to also indicate with respect to each of the projects identified whether they were part of the "approved working plan" for the forest area in question as only such works which are part of the approved working plan are exempted from the requirement of Forest Clearance.

The State Govt. filed their reply on 18.11.2016 in which it was stated that the „Four Water Concept‟ is watershed treatment concept which deals with rain water, surface water, soil moisture and ground water. In this technology aspects pertaining to agriculture, soil conservation, ground water, surface water, Geo Engineering are integrated. As a result the main stream in the water shed becomes perennial, rain fall, run off or flood run off in the stream is less and availability of ground water in summer and draught season is elongated.

Shri A.S. Barar, APPCF, Water Resources Development and Soil Conservation Department who is present has stated that all the works under „Four Water Concept‟ taken up in the forest areas are covered by the various prescriptions for soil and water conservation mentioned in the approved working plan of the forest area in question. And that all the Four Water Concept works done in forest areas are for the management and conservation of forest and wildlife in the forest areas. He has further stated that the State Government does not propose to use the micro storage tanks falling within the forest areas for agriculture or irrigation purposes and none of the works taken up violate the provisions of the Forest (Conservation) Act, 1980.

In view of above, that the conceived and executed projects are to be exclusively used for the forest purposes and not for any irrigation and agricultural use and in accordance with "approved working plan" for forests and for furtherance of the "Four Water Concept" no further directions are required to be issued.

We however direct that the State Govt. shall ensure that these reservoirs are not allowed to be misused. Also a continuous monitoring of the impact on forest and wildlife, ground water recharging and effect in the water bodies and streams and rivers be also carried out. In case any amendments or alteration are required to be carried the same shall be carried out in the best interest of the protection of the forests and environment and Original Application accordingly stands disposed of. However, the Applicant will have liberty to approach this Tribunal in case at any stage in future it is found that the tanks built for the purpose of conservation of forest and wildlife within the forest area are found to be used for agriculture or irrigation purposes or any other non forest activities.