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Judgment
A joint Committee comprising Chief Conservator of Forest, Uttar Pradesh and Commissioner Chitrakoot Dham was required to furnish a factual and action taken report in response to the allegation that a petrol pump was being illegally operated by M/s. Jai Kamta Nath Filing Station in Chitrakoot District, Uttar Pradesh, in the forest area. NOC was given without approval of the Forest Department. The Forest Department registered a criminal case. NOC was stayed by the District Magistrate but order of the District Magistrate was set aside by the Divisional Commissioner.
Accordingly, a report has been filed on 11.11.2019, inter-alia stating as follows:-
"1 to 11 xxx xxx xxx
The Chief Conservator of Forests, Bundelkhand Zone, U.P., Jhansi vide his communication dated 09.09.2019 (Annexure No. 6) has mainly stated that-
(a) The matter in which certificate was given for the approach road of the proposed Retail Outlet of Indian Oil Corporation Limited does not relate with any person belonging to Scheduled Tribe or Traditional Forest Dweller dwelling in the forest. The fundamental objective of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is to extend benefit to the Scheduled Tribes and Other Traditional Forest Dwellers dwelling in the forest whereas the applicant of the Retail Outlet or the user agency (Indian Oil Corporation Limited) does not fall in the category of Scheduled Tribes and Other Traditional Forest Dweller. Hence, the benefits under The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 are not admissible to the applicant or the user agency.
(b) Relaxation in the provisions of Forest (Conservation) Act, 1980 has been done in sub section-2 of section-3 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 for 13 facilities managed by the Government mentioned therein, petrol/diesel Outlet is not included in the category of 13 said facilities managed by the Government. Therefore, the relaxation in the provisions of Forest (Conservation) Act, 1980 is not applicable for the Retail Outlet in question.
(c) The user agency, i.e., Indian Oil Corporation Limited was required to apply on the official website www.forestclearance.nic.in of Ministry of Environment, Forest and Climate Change, Government of India, New Delhi for non-forestry use of 0.67760 hectare protected forest land for setting up of the said petrol pump Retail Outlet/construction of approach road under the provisions of Forest (Conservation) Act, 1980. With such application, certain documents are required to be annexed which include the certificate of the District Magistrate under The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The certificate under The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has been signed by Social Welfare Officer, Divisional Forest Officer and the District Magistrate was to be annexed with the proposal under Forest (Conservation) Act, 1980. Retail Outlet could have been established after sanction of the proposal by the Government of India under the Forest Conservation Act, 1980.
(d) The Commissioner, Chitrakoot Dham Mandal, Banda has sent his report dated 24.07.2019 treating "No Objection Certificate" issued under The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 as the no objection for setting up of the Retail Outlet.
From the situation, as above, it was felt that the Officers of the U.P. Forest Department and the Commissioner, Chitrakoot Dham Mandal, Banda have diverse views as far as the interpretation of "No Objection Certificate" issued under The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 by the District Level Forest Rights Committee, Chitrakoot is concerned. As per the legal provisions concerned and Guidelines of Government of India, there is no confusion that the "No Objection Certificate" issued under The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 by the District Level Forest Rights Committee is not the ultimate permission for setting up of the said Retail Outlet. It is just a document required to be annexed with the proposal for permission of Government of India under Forest (Conservation) Act, 1980. It is also pertinent to mention that the term 'non-forest purpose' has been explained in the Explanation appended with section-2 of Forest (Conservation) Act, 1980 as under-
"Explanation- For the purpose of this section 'non-forest purpose' means the breaking up or clearing of any forest land or portion thereof for:
(a) the cultivation of tea, coffee, species, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;
(b) any purpose other than re-afforestation."
From the above, it is undisputed that using protected forest land for ingress and egress of the said Retail Outlet is 'non-forest purpose' under Forest (Conservation) Act, 1980 and the prior permission of the Central Government is necessary for such use of protected forest land and the said "No Objection Certificate" issued under The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 by the District Level Forest Rights Committee, Chitrakoot cannot be taken as the ultimate permission for using protected forest land. It is just a document to be annexed with the proposal to be sent by a user agency to the Central Government under Forest (Conservation) Act, 1980.
Regarding "Diversion of forest land for non-forest purposes under the Forest (Conservation) Act, 1980-Procedure for utilizing the land for approach/exit road to petrol pumps" Government of India, Ministry of Environment & Forests (FC Division) has issued guidelines through letter no. F. No. 11-29/2004-FC dated 15.07.2004, F. No. 11-29/2004-FC dated 08.12.2004 and F. No. 5-3/2007-FC(Pt-I) dated 18.03.2010 (collectively annexed as Annexure No. 7) (Pg. No. 220 to 227). All these guidelines were applicable when the issue related with the said petrol pump was under consideration before the authorities concerned. From these guidelines, it is clear that permission of Government of India was very much required in the instant matter.
However, there is a dissent in views of Commissioner, Chitrakoot Dham Mandal, Banda and the undersigned on the issue. The undersigned is of the view that Forest (Conservation) Act, 1980 cannot be violated in any issue including the instant one.
Regarding, the present operational status of the said Retail Outlet, it is worth reiterating (already stated in paragraph no. 9(n) above) that the same is closed since long period as per the report of Divisional Forest Officer, Chitrakoot Forest Division, Chitrakoot."
Having perused the report, we are of view that since diversion of forest land for non-forest purposes requires permission under the Forest (Conservation) Act, 1980, the same has to be obtained and till then the outlet in question cannot be allowed to be opened.
The application is disposed of accordingly.