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“Serious shortcomings in regulating diversion of forest land and compensatory afforestation”

Newsroom24x7 Network

The theme of UNCCD’s Conference of the Parties – UNCCD COP14 – being hosted in New Delhi, from September 2 to 13, is “Restore Land to Sustain Life”.

Over 3,000 participants from all over the world are expected to participate in COP14. The Parties to the Convention will agree on the actions each will take over the next two years and beyond to get us on a sustainable development path. The curtain raiser for COP 14 by United Nations Convention to Combat Desertification (UNCCD) talks of over a million species that are on the verge of extinction, threatening global food security, mainly due to habitat loss and degradation. It goes on the underscore that Three out of every 4 hectares of land have been altered from their natural states and the productivity of about 1 in every 4 hectares of land is declining.

Ministers from 196 countries, scientists and representatives of national and local governments, non-governmental organizations, city leaders, the private sector, industry experts, women, youth, journalists, faith and community groups will share their expertise during the COP deliberations in New Delhi.

The theme of COP14 – Restore Land to Sustain Life – says it all. It automatically draws attention to the massive loss of habitat due to the progressively increasing demand for natural resources, rapid depletion, degradation and resultant loss of forest cover, diversion of land for non-forest activity and reckless land use change.

Newsroom24x7 investigated the State of affairs vis-a-vis efforts at the Government level in India to mitigate loss of forest cover due to diversion of forest land for non-forest use.

The forest land is generally diverted for facilitating developmental activities for non forestry purposes like construction of power projects, irrigation projects, roads, railways, schools, hospitals, rural electrification, telecommunication, drinking water facilities and mining.

Regulatory issues

The Comptroller and Auditor General of India (CAG), after conducting an audit during the period January – December 2012, had pointed out serious shortcomings in regulatory issues related to diversion of forest land, the abject failure to promote compensatory afforestation, unauthorised diversion of forest land in the case of mining and the attendant violation of the environmental regime.

Compensatory Afforestation involves identification of non-forest land or degraded forest land, work schedule, cost structure of plantation, provision of funds, mechanism to ensure the utilisation of funds and monitoring mechanism etc.

Hence, compensatory afforestation is one of the most important conditions stipulated by the Central Government while approving proposals for
de-reservation or diversion of forest land for non-forest use.

Compensatory afforestation – Abysmal Performance

For a pan-India audit a few years ago ,the Ministry of Environment, Forest and Climate Change (MoEFCC) records presented to the CAG had revealed that against the receivable non-forest land of 1,03,381.91 hectare, 28,086 hectare was received during the period 2006-12 and this constituted only 27 per cent of receivable non-forest land. The gravity of the problem could be assessed from the fact that the compensatory afforestation done over the non-forest land received was an abysmal 7,280.84 hectare constituting seven per cent of the land that ought to have been received.

Besides, the afforestation over the degraded forest land was done only on 49,733.76 hectare and 49 km out of 1,01,037.35 ha and 54.5 km identified which worked out to 49 per cent (in area).

Seven States – Gujarat, Haryana, Kerala, Maharashtra, Meghalaya, Punjab and Rajasthan did not carry out compensatory afforestation either over non-forest land or over degraded forest land during the period in question (2006-12).

According to the CAG, the record with regard to transfer of ownership to the State Forest Department was found to be equally dismal.

Of the 23,246.80 hectare of non forest land received by the States and Union territories, only 11,294.38 hectare was transferred and mutated in the name of the State Forest Department. Of this 3,279.31 hectare was declared as Reserve Forest/ Protected Forest which was only 14 per cent of non forest land so received.

Under the MOEFCC rules and guidelines, in case of non-availability or short-availability of forest land, which was to be duly certified by the Chief Secretary, compensatory afforestation was to be undertaken over the degraded forest twice to the extent of the forest land diverted.

CAG questions Chief Secretary’s Role

CAG has pointed out that compensatory afforestation was allowed over an area of 75,905.47 hectare without any certificate of the Chief Secretary, in almost all the states except Delhi, Himachal Pradesh, Meghalaya and Sikkim. Only in two State/ UTs viz. Chandigarh and Uttrakhand, equivalent or more non-forest land was received.

Audit also observed instances where express orders of the Supreme Court were flouted by Andhra Pradesh State Electricity Board where the diversion of forest land in Nagarjunasagar Dam was allowed without seeking prior permission of the Supreme Court. In five other cases unauthorised renewal of mining leases in Rajasthan and Odisha were noticed, where the approval of Central Government was not obtained by the State Government as was directed by the Supreme Court.

Unauthorised Renewal of Leases and Illegal Mining

Numerous instances of unauthorized renewal of leases, illegal mining, continuance of mining leases despite adverse comments in the monitoring reports, projects operating without environment clearances, unauthorized change of status of forest land and arbitrariness in decisions of forestry clearances were observed. In six States where information was available, encroachment of 1,55,169.82 hectare of forest land was noticed but MoEF did not take time bound action for eviction despite directions of the Supreme Court.

Despite such gross non-compliance with statutory conditions and orders of the Supreme Court, no action was initiated by MoEF. In fact MoEF had invoked penal provision only in three cases during the period August 2009 to October 2012 and even this action was only limited to issue of show cause notices.

Penal clause prescribed in the Forest (Conservation) Act, 1980, was largely inadequate and ineffective to put any deterrence towards illegal and unauthorised practices. – CAG

There was no assurance to the CAG that all the monies collected for compensatory afforestation funds by States/UTs have been deposited in the Ad-hoc CAMPA. accounts.

Divergence in data of transfer of funds available with Ad-hoc CAMPA and collected from States/UTs was Rs. 6,021.88 crore which was 26.32 per cent of the principal amount with Ad-hoc CAMPA. Test checks by CAG revealed that 23 State/ UTs had, at the least not transferred Rs. 401.70 crore of compensatory afforestation fund to Ad-hoc CAMPA.

Non recovery/ under assessment of Net Present Value and funds for Compensatory Afforestation/Additional Compensatory Afforestation/Penal Compensatory Afforestation/ Catchment Area Treatment Plan on the basis of a test check in audit was Rs 5,311.16 crore

In some of the States where the amounts of non/ short recovery were significant include Odisha (Rs 1,235.26 crore), Jammu & Kashmir (Rs 861.80 crore), Madhya Pradesh (Rs 512.84 crore), Tripura (Rs 333.19 crore), Assam (Rs 223.28 crore), Uttarakhand (Rs 207.51 crore), Gujarat (Rs 176.02 crore), Jharkhand (Rs 116.18 crore), Manipur (Rs 106.45crore) and Chhattisgarh (Rs 111.29 crore).

Out of Rs. 2,925.65 crore of the compensatory afforestation funds released by Ad-hoc CAMPA during the period 2009-12 for compensatory afforestation activities, only Rs 1,775.84 crore were utilised by the State/ UTs leaving an unutilised balance of Rs. 1,149.81 crore.’

Some of the States with very poor utilisation were Meghalaya (100 per cent), Arunachal Pradesh (91 per cent), Bihar (77 per cent), Tripura (68 per cent), Chhattisgarh (67 per cent), Andaman & Nicobar Islands (63 per cent) and Delhi (63 per cent).

Several laws and court judgements govern the use and protection of forest land in India. The laws include Forest (Conservation) Act, 1980, The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and Indian Forests Act, 1927.

Under the Forest (Conservation) Act 1980, whenever forest land is to be diverted for nonforestry purpose usually the conditions relating to transfer, mutation and declaration as Reserve Forest/ Protected Forest the equivalent non forest land for compensatory afforestation and funds for raising compensatory afforestation etc are to be imposed. For mining purposes additional conditions like maintaining a safety zone area, fencing and regeneration etc and for major and medium irrigation projects, catchment area treatment plans are to be stipulated.

As per the Forest (Conservation) Act 1980, as far as possible, the non-forest land for Compensatory Afforestation (CA) was to be identified contiguous to or in the proximity of Reserved Forest or Protected Forest. In case, non-forest land of CA was not available in the same district, non-forest land for CA was to be identified anywhere else in the State/Union Territory. If non forest land was unavailable in the entire State/ UT, funds for raising CA in double the area in extent of the forest land diverted had to be provided by the user agency.

In case of central government/ central undertaking projects, extraction of minor mineral from the river beds above 500 hectare, construction of link road, small water works, minor irrigation works, laying of transmission line upto 220 KVA etc, CA was to be raised on degraded forest land twice the forest area being diverted without insisting for the certificate of Chief Secretary regarding nonavailability of non-forest land.

The funds for compensatory afforestation are recovered from the user agencies on the basis of the rates fixed by the State Forest Department that are site specific and vary according to the species, type of forest and site.

After receipt of the money, State Forest Department has to accomplish the afforestation for which money is deposited in the Compensatory Afforestation Fund within a period of one year or two growing seasons.

These funds are to be used towards the development, maintenance and protection of forest and wildlife management.

Godavarman Case

From 1995, the Supreme Court of India began playing a proactive role in the matters of forest policy governance. In a case T.N. Godavarman Thirumulpad v/s Union of India (W.P. (Civil) No. 202 of 1995), the Supreme Court took action against large scale illegal felling of timber and denuding of forests in Gudalur Taluk, Tamil Nadu. Through the Godavarman case the Supreme Court continued to issue interim orders and judgements around several aspects including tree felling, operations of saw mills, violations of approvals for forest diversion, de-reservation of forests and many other matters related to compensatory afforestation.

The Court in its order dated 12 December 1996, put a stop to all on-going activity like functioning of saw mills and mining within any forest in any State throughout the country that was being carried out without the approval of Central Government.

The Supreme Court in its order of 3 April 2000, had fixed the responsibility of ensuring the proper carrying out of compensatory afforestation on Ministry of Environment and Forests and said that it was for the Ministry to monitor the conditions stipulated at the time of grant of forest clearance.

In November 2001 Supreme Court had observed that there was poor utilization of funds deposited for compensatory afforestation and also that a large amount of money for compensatory afforestation was not realized by the State Governments from user agencies.

On 9 May 2002, the Supreme Court had ordered the setting up of the Central Empowered Committee (CEC) with explicit functions of monitoring the implementation of the Court’s orders.

The issue of compensatory afforestation was examined by the CEC and it observed that in some of the States the funds were deposited by the user agency as `Forest Deposit’ which were readily made available to the concerned division for afforestation. In some other States the funds were deposited as revenue receipts of the State Government and could be made available to the Forest Department only through the budgetary provisions. CEC recommended that unless the system of release of funds through budgetary provisions is changed, the pace and quality of compensatory afforestation cannot be increased significantly.

It was, therefore, desirable to create a separate fund for compensatory afforestation, wherein all the monies received from the user agencies would be deposited and subsequently released directly to the implementing agencies as and when required. The funds received from a particular State would be utilized in the same State. This system would help undertake compensatory afforestation in a planned manner on a continuous basis. – CEC

Subsequently in October 2002, the Supreme Court issued the directive that a ‘Compensatory Afforestation Fund’ (CAF) shall be created in which all the monies received from the user-agencies towards compensatory afforestation, additional compensatory afforestation, penal compensatory afforestation, net present value of forest land, catchment area treatment plan funds, etc. shall be deposited.

Ministry of Environment and Forests (MoEF) notified the Compensatory Afforestation Management Funds Management and Planning Authority (CAMPA) in April 2004 for the management of the compensatory afforestation fund.

CAF was to compensate for the loss of tangible as well as intangible benefits from the forest lands which were diverted for non-forest use. Such funds were to be used for natural assisted regeneration, forest management, protection, infrastructure development, wildlife protection and management, supply of wood and other forest produce saving devices and other allied activities.

Following persistent requests from Members of Parliament, State Chief Ministers and Forest Ministers as well as Chief Secretaries for release of funds to the States and UTs from Ad-hoc CAMPA for carrying out compensatory afforestation activities urgently, the Ministry of Environment and Forests organized a consultative meeting of all States on 30 March 2009 to formulate guidelines for release of funds to the States/ Union Territories. The guidelines so evolved were approved by the Supreme Court of India in their order dated 10 July 2009 and circulated by MoEF to all States/ UTs on 15 July 2009.

During the test check of records of MoEF, it was noticed that in 30 out of 52 cases examined, the non-forest land of 11,033.28 hectare provided by the user agencies to the State Governments was not declared/ notified as Reserve Forest/Protected Forest.

As per the data provided by the State agencies, of 23,246.80 hectare of non-forest land received by the State Forest Departments during the period 2006-12 11,294.38 hectare was transferred/mutated in favour of the Forest Department of which only 3,279.31 hectare was declared as RF/PF.

In 19 of the 26 States from which information in this regard was received, non availability of forest land was not certified by the Chief Secretary/ or Deputy/Divisional Commissioner.

CAG on Sasan Power Limited

Click here for Clearance by MoEFCC on the basis of an inappropriate certificate of the Chief Secretary and non-fulfilment of conditions of additional afforestation.

Click here to read What will be the state of the forests in Madhya Pradesh after a few years

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