State cannot de-reserve forest without Centre's nod: Karnataka HC

The Karnataka High Court on Thursday held that the state government cannot de-reserve a forest land without obtaining prior approval of the central government. The court quashed the order of the state government passed on February 23, 2017, de-reserving a portion of the forest land for rehabilitation purposes in Malnad region.

A division bench headed by Chief Justice Abhay Shreeniwas Oka said that the state government cannot exercise powers under Section 28 of the Karnataka Forest Act, 1963, ignoring the provisions under Section 2 of the Forest Conservation Act, 1980, a central Act.

The petition filed by Gireesh Achar, a resident of Hosanagar taluk in Shivamogga district, challenged the constitutional validity of Section 28 of the state Act, on the ground that it is repugnant to Section 2 of the central Act.

The bench observed that the central Act starts with a non-obstante clause and overwrites the state law and therefore the power with the state government has been circumscribed by Section 2 of the central Act. The court said the decision taken by the state government also violates the order of the Supreme Court in the Godavarman case.

“Thus, unless there is prior approval of the central government to an order under Section 28 of the said Act of 1963, the order under the said section will not be a valid order which can be acted upon. In fact, any such order made in exercise of power under Section 28 of the said Act, without seeking prior approval, will not only be illegal but also attracts legal consequences under Section 3 A or Section 3 B, as the case may be, under the Forest Conservation Act of 1980,” the bench said.

The bench reminded the state government of Article 48A, which is part of Directive Principles of State Policy. “The officials of the state who did the exercise of initiating and completing the process under Section 28 of 1963 Act were also duty bound to protect the forest. The minimum which was expected was they will not indulge in de-reservation of forest in complete violation of Section 2 of the 1980 Act,” the court said while directing the concerned officers to set criminal law into motion if any of the officers are responsible for allowing non forest activities.

The state government had de-reserved 2,247.12 acres of forest land from Shettihalli Wildlife Sanctuary to rehabilitate displaced people for Linganamakki reservoir, a main feeder for the Mahatma Gandhi Hydroelectric Power Unit. The order was passed on February 23, 2017.