CHAPTER IV

ENCROACHMENT ON FOREST: LEGAL PROVISIONS

1. INTRODUCTION
Battles and wars have systematically been carried with the aid and under
the shelter of forests, rivers, mountains and animals in India. Even before the
opponents, the forest used to be the first causality in such warfare, East India
Company, which initially carried a mission in trading was subsequently
licencesed to rule Indian territory as Her Magesty's Land Act of 1833 adopted
by the British Parliament was a form of an arrangement with East India
Company. The Governor General of India in Council was empowered^ to have
superintendence and control over territories and revenue^ and it led to State
ownership on forests also and enactment of laws relating to forests.
A. Forest Law
The Forest Laws in India came to be codified with the advent of the
British rule not as a need for the economic development of India but to fulfill the
demand of timber like teak, sal, deodar and sandalwood in England. By around
1860, Britain had emerged as the world leader in deforestation, devastating its
own woods and the forests of Ireland, South Africa and northern-eastern United
States to draw timber for shipbuilding, iron-smelting and farming. Upon
occasion the destruction of forests was used by the British to symbolize political
victory.^ The revenue orientation of colonial land policy also worked towards the
denudation of forests.'* The imperial forest department was formed in 1864 with
the help of experts from Germany, the country known as the leading one in
terms of forest management. The state ownership on unoccupied land and
forests was legally recognized. Thus, the first attempt at asserting monopoly
was through the Indian Forest Act of 1965. Hurriedly, drafted, the 1865 Act was
passed to facilitate the acquisition of those forest areas which were marked for
railways supplies. It gave the government undisputable powers to regulate
forest and pastures. The local staff was given powers to deal with the forest
offences. Almost immediately the search commenced for a more stringent and

Section 39 of the Land Act, 1833.

Section 43.
Gadgil and Guha; 'This Fissured Land: An Ecological History of India", Oxford University Press,
Oxford Melhoume, 1993, p-118.
Ibid.
208
inclusive piece of legislative. A preliminary draft, prepared by Brandis in 1869
and a conference of Forest Officers in 1874 outlined the defects of the 1865 Act
and finally resulted into the Act of 1878.
B. Cattle Trespass Law
The Cattle Trespass Act 1871(1 of 1871) was also enacted in view of the
prevention of Cattle Trespass in the forests and penalizing the violation of the
provisions of the Act. These legislatives were adopted more with a view to
promote commercial interests and had remote proximity with the prevention of
encroachments on forests in India. With the development of Science and
Technology and ever-increasing population of India, came tremendous changes
in the environment, ecology and atmosphere of the country. The continuity
between the forest laws of colonial and independent India is exemplified by the
Indian Forest Act, 1927 which replaced the Indian Forest Act of 1878 and still in
vogue containing provision of the Cattle Trespass Act, 1871.
C. Wildlife (Protection) Law
In the field of wildlife protection early legislation was limited to specific
areas and particular species. In 1873, Madras enacted the first wildlife statute
for the protection of wild elephants. The law introduced a general prohibition on
the destruction of wild elephants and imposed penalty on those who violated
the embargo. The first effort by the Central Government came six years later
with the passing of the Elephants Preservation Act of 1879. In 1887, the Centre
enacted the Wild Birds Protection Act prohibiting the possession or sale of wild
birds recently killed or taken, during notified breeding season.^ In 1912, the
Central Government enacted a broader Wild Birds and Animals Protection Act.
This law was extended to most of British India and in specified closed hunting
seasons regulated the hunting designated species through licences. The first
comprehensive law for the protection of wildlife and its habitat was perhaps the
Hailey National Park Act of 1936 which established the Hailey now Corbett
national Park in the State of Uttar Pradesh.
D. Exploitation of Forest
The review of early forest laws suggests that the legislative efforts were
in piecemeal and inadequate. It is interesting to note that our forests were

See rules published in Bombay Government Gazette, 20 July 1911, notifying season for theTalegaon
Dabhade Municipality, p-1219.
209
initially reserved from areas which were earlier classified as "Waste Lands".
During such reservations considerable amount of forest areas were left out for
the use of people and these were placed under the Revenue Department.^
Since the forests were considered as "no man's area". Therefore, during initial
stages, protection and consolidation was primary task. The forest wealth has
been exploited for revenue, for expansion of agriculture, for rehabilitation,
settlements, mining, shifting cultivation, over grazing and the like. The
shrinkage of wilderness is a global problem but it is very severe in developing
countries like India.*" Rapid increase in population and increased demand on
forestland for its produce cause the encroachments.
2. EARTH, LIFE AND LAW
Mother Earth has blessed every one on it with its bounties, food and
habitat. Life without these bounties is impossible and un-imaginable. However,
the man's insatiable greed has over-exploited the natural sources. Therefore,
Laws are enacted to order the human conduct. It is the task of law to balance
the competing interests and so is the duty of legislatures.
A. Right to Life and Habitat
Human being on this Earth is only one amongst millions of species-trees
plants as well as animals; and he has been dominating all other species to his
advantage and comfort since time immemorial. The history of world's
civilizations, the beginnings of human civilizations suggests that man has
always been discovering and inventing new things, new formula and added to
his necessity, comfort and luxury. This quest of his is unquenchable. He has
been participating in various circles - concentric circles - family, village, block,
district, state, country, continent and the global society.® In his pursuit man
stayed a winner to the last over other species. So much so even the Right to life
and habitat is also in the domain of human specie. This right is universal and so
is corresponding duty to protect it. The difficulty is that there is no such right to
life and habitat acknowledged for the rest of the existing species.^ The right to
life of trees, plants, animals and birds and their habitat has been ignored or

Chaudhary, R.N., "Law of Forests in India", Orient Publishing Company, New Delhi, 2000, p-108.
ibid.
Goel Aruna, ''Environment and Ancient Sanskrit Literature", Deep & Deep Publication Pvt. Ltd.
Delhi-27. 2003, p-37.
Gandhi Maneka, Hussain Ozair and Panjwani Raj, ''Animal Laws in India", Universal Law
Publishing Co. Ltd., 2001, p-725.
210
subjected to the human development such as the urbanization, industrialization
etc. With the development of science and technology and with ever increasing
population, has come tremendous changes in human environment. These
changes have upset the eco-system, shook the balance between human life
and its environment and have brought innumerable problems affecting the
environment. An individual or an organization seeking protection of forests and
wildlife or their habitat does not exercise any right but acts in furtherance of its
duty enshrined either under the Constitution of India or in the Statutes. It is
interesting to denote that this duty is out of compulsion in the wake of
environmental threat, ecological imbalance and maintenance of climatic
equilibrium so that human spicy survives. On occasions, this duty when
pursued is erroneonesly labeled as a right. Not the right of the trees plants or
wildlife but the right of human being for clean environment, and for its comforts.
It is writ-large that human spicy can not survive without forests and wildlife, the
later can.
B. The Ancient Prudence
This perhaps is the reason why the Vedic Rishis had forewarned the
need to protect forests. They mentioned the need of performing the daily
Yagyanas for protection of environment and ecology. Dharamsastras prohibited
men from disturbing the bio-diversity and eco-system as it is against the tenets
of "Dharma" and it is considered a sinful activity (papakarma). In the epic period
men and environment were in harmonious relationship. Atharveda has dealt
meticulously about various aspects of environment and showed more concern
for forests and ecology. It's love for Earth is outstanding (Prithvisukta) as
mother Earth bestows love on all the creatures living on it. It stressed on the
planting of trees^° and prohibited unnecessarily digging of the earth as laid
down in 35"^ Mantra of Bhumi Sukta.'^'^ Puranic mythology believed in
worshipping nature, thereby, bringing harmony in eco-system. Great Rishis like
Vyasa, Valmiki and others, the great poet like Kalidasa had wrote scriptures of
eternal values relating to the blessings of nature and forest to the creatures on
this earth.

'" ''Dyaurvana girayovrks-akesah" i.e. planting of trees; and, "Ma kakambiramudvuho

Vanaspatisastrtrvikimnasa" i.e. avoiding cutting of trees - R.V.6.48.17.
'' •• Yat me Bhume Visvanbhi, Tadepi Sohatu me te marina Vimrgvadi ma te hrdeyamapinam".
211
C. The Verdict of Major Religions
Kautilya in his Arthasastra had conviction of preservation of forests,
reservoirs of wildlife and maintenance of their habitations. He had prescribed for
fine to be levied on the person violating these provisions. Variety of trees were
grown and an officer had to judiciously inspect tree care and killing of birds and
animals was banned.^^ The scriptures laid down that the whole universe
together with its creatures, belongs to the lord (nature). Implicit in this thought is
that no creature is superior to any other and that a human being should not
have absolute power over nature. Let no one specie encroach over the rights
and privileges of the other species. One can enjoy the bounties of nature by
giving up greed.^^ Therefore, the Indian concept has been in complete harmony
and identification with nature enjoined upon all living organisms, especially
making to limit their desires and greed, thus, proper balance in ecology,
environment and atmosphere to be maintained oriented towards common good.
Our Late Prime Minister Smt. Indira Gandhi emphasized our ancient care,
conservation and worship of trees and animals. In her own words:
"The interest in conservation is not sentimental one but the
rediscovery of a truth well known to our Sages. The Indian tradition
teaches us that all forms of life, human, animals and plants are so closely
linked that disturbance in one gives rise to imbalance in the others".^'*
"Don't make mischief in the Earth" - Holy Quran.^^ Thus, Islam also
recognizes the invaluable bounties of nature. The teachings of Islam emphasis
that maintenance of harmony in various components of nature and the system
of its operation has been essential for the health of universe in common but
more particularly of the earth, a home of mankind. The universe, is held by
Islam, an Insan Kabeer (the Big man).^^ Thus, if universe is a big man, the
human being is a small replica. Analogous to Chanogya Upanishada, the
preaching reiterates indivisible relations between the human beings and nature.
Islamic belief, however, refers to man as a custodian of the nature. "These
bounties of Nature from Allah are entrusted, to man as a trust for his

Supra note 8, p-47.

Isho-Lpanishid, "Isha Vaasyam Sarv, Ytkinleh jagatyam jata; Ten Taykten bhumjeeya, Ma gidh
kastyachil dhanam".
World Conservation Strategy in India launched on 6"' March, 1980 a qquotation of speech of Mrs.
Indira Gandhi P.M. of India.
I.L.I Journal, Delhi, Vol.43, No.3, p-350.
Desai. A. Ashok, '"EnvlronmentalJiirispnidence", Modern Law House, Allahabad, 2000, p-21
212
upliftment and betterment of other creations".^'^ Christians are baptized in
water as a sign of purification. The basic tenets of Buddhism are simplicity and
"ahimsa" or non-violence which are of great importance in conservation and
protection of natural environment. The basic thrust of Jainism is on minimum
destruction of living and non-living resources for the benefit of man. The Guru
Granth Sahab, too, emphasizes that human beings are composed of five basic
elements of nature i.e. earth, air, water, fire and sky. All the religion that find
their echo in India show reverence towards nature and its creations.^® Man,
thus, holds nature or natural resources in a trust. His possession is to improve
himself and other creatures. The man could be Mutawali, Muzavar,
Sajjadanashin (servant) or trustee of the earth and nature.
D. A Quest for Developed Nation
Ever since the birth of society, development has been one of the most
important quests of human endeavour and as of now we all share the concern
for deterioration in quality of environment, ecological imbalance and disturbed
atmospheric equilibrium. Development is essential for socio-economic
upliftment and progress. India is still a developing country, where problems of
poverty, unemployment, squatter, diseases and illiteracy persist. What makes a
country developed? The obvious indicators are the wealth of the nation, the
prosperity of its people and its standing in the international forum.^^ Our
President Dr. APJ Abdul Kalam says that aiming small is a crime. His big aim is
to realise
"a great vision, the vision of transforming India into a developed
nation, powered by economic strength".
The economic strength he is talking about is strength "with a value
system". He quotes extensively from the figures worked out by T.K. Bhowmik,
Senior Advisor, confederation of Indian Industry. On the assumption that the
growth of GDP for India had been 7.5% during 1997-2001 the needed growth
rate for being in the league of top four during 2002-06 is 8.1, 10% during 2007-
11 and 13% during 2012-20. Our growth rate over the years have been 1951-56
First Five Year Plan 3.7%; 1956-61 Second Five Year Plan 4.2%; 1961-66

Ibid.
Chandra, Geetanjali, "'Public Interest Litigation and Environmental Protection", Deep & Deep
Publication Pvt. Ltd. Delhi, 2005, p-25,
Kalam A.P.J., Abdul with Rajan, Y.S., '"India: 2020", A vision for the New Millennium, Penguin
Books, 1998, p-1.
213
Third Five Year Plan 2.8%; 1969-74 Forth Five Year Plan 3.4%; 1974-79 Fifth
Five Year Plan 5.0%; 1980-85 Sixth Five Year Plan 5.5%; 1985-90 Seventh
Five Year Plan 5.8% and 1992-97 Eighth Five Year Plan 6.8% 1997 onwards
the growth of GDP has slowed down and had certainly not been 7.5%. The past
trend need not indicate the future possibility. Yet in the light of past performance
a growth rate exceeding 13% seems almost impossible. Yet Dr. Kalam says
"We have to demand from our institutions impossible and the
possible will emerge".^°
There are many indicators regarding the wealth of a nation and one can
include many other indicators of the quality and dignity of life. Still there is a
nagging worry when we apply the talisman prescribed by Gandhiji. Gandhiji's
strikingly simple criterion was that every action proposed or contemplated,
should in its implementation wipe the tears of a poor and down trodden person.
He emphasized that only when we have wiped out the tears from the faces of
all, have we truly arrived as a nation. It does not make a sense to achieve a
"developed" status without a major and continuing upliftment of all Indians who
exist today and of the many more millions who would be added in the years to
come. Indians should all have secure and enjoyable "present" and also be in
position to look fonward to a better "future".
E. Experience of the West
Experience of developed nations in their efforts for a sustainable
development throws light on how India should act to achieve the status of
developed nation. Keeping in view the Gandhiji's talisman. The Forests sustain
a life, the plant and animals that provide us food, clothing, medicines, raw
materials and other human needs including a live-able atmosphere providing
the basic life support system. These natural resources form the basis of all our
scientific advances, technological progress, agriculture based on rain and water
and industries. These are basis of human survival itself. But these natural
resources that are so vital for food, livelihood and environmental security are
under pressure by human encroachments. The challenge of their conservation
and sustainable use remain enormous. Modern man has been exploiting the
natural resources indiscriminately and in the process, deforestation, degraded

Ibid, p-5.
214
environment making this planet not a fit place to live in Man's ambition for
limitless comforts has put him on collision curse with nature.
At best, man could be a superior amongst living creatures. He, however,
developed in him a sense that he was a supreme of the planet. Gratitude
towards the living and non-living things either which was practiced by the
ancient and historical prudence had withered.^^ It is interesting to read, to hear
and see what developed countries have done. However, the conclusions
regarding what is good for India are to be drawn and shaped by us alone.
The West has developed a notion that mankind has to protect or
maintain natural sources as a trustee. In 1769, Junius Public Advertisers
recorded.
"We owe it to our ancestors to preserve entire those rights, which
they have delivered to our care. We owe it to our posterity not to suffer
their dearest inheritance to be destroyed".^^
But the spreading of colonialism created new patterns of ruling. Man
cherished a lust to rule territories other than his motherland. On alien land,
rulers had no inclination to maintain bondage with natural resources. They
rarely had gratitude towards these resources and disregarding the ancient
prudence, they ruthlessly exploited the natural resources to the maximum.
Further as a legacy of imperialism and colonialism, they conceived a notion of
ownership on these natural wealth and held the same as a commodity at their
disposal for consumption with that sense that the man began his material
development, community regulated its conduct, with a notion that the natural
sources had to serve the needs and wishes of mankind.
F. Rule over Nature
Rule of nature was replaced by a phenomenon "to rule over nature".^^
Therefore, the crisis relating environment, ecology and atmosphere essentially
had arisen on two grounds. First, a reckless use of natural resources to
maximize short run gain had led to depletion which would adversely affect
development in future. It is not in the interest of sustainable development.
Second, is that one does not have to wait for future generations to feel the
adverse impact on environment. Livelihoods are lost, sources of drinking water

Supra note 16, p-23.

See Justice V.R. Krishna Iyer in "Environmental Pollution and Law", Deep and Deep Publication,
1997, p-1
AIR 1987 SC 1114.
215
 are made unusable and victims are subjected to agonizing misery. While a few
already better of section may become still better off, many other become worse
off. The former cannot offset the latter's effect.^''
G. Over Exploitation of Natural Wealth
Activities such as conversion of forest land for non-forest purpose
including agriculture, mining and quarrying in the forests, pasturing beyond
carrying capacity, destruction of wildlife for immediate gains are the various
forms of encroachments on forests and had not only reduced the stock of
natural wealth but also had posed the threat to human environment, ecological
balance and the atmospheric equilibrium. Unbalanced approaches of the
development, negligence towards creatures of the earth and over exploitation of
natural resources have taught lessons that environment has deteriorated very
rapidly in western countries with the economic boom during the II World War in
early forties when the west created enormous economic wealth. This resulted in
extreme pollutions of the air and water over London, Los Angeles and Tokyo
where it was impossible to breathe, while the rivers thame and Rhine became
virtually sewers.^^ Dr. Rangaajan, Governor of AP stated that there are three
distinct stages of the evolution of economic thought namely in the first stage the
major concern was to accelerate economic growth with increased availability of
material goods, especially in developing economic with very low living standard,
because poverty eradication meant faster economic growth. In the second
stage economists made distinction between growth and development.
Development was seen as going beyond economic growth and bringing certain
change in the structure of economy with more equitable distribution of the
benefits of growth with the growth coming automatic and sustained. The third
stage is now reached. Our concern is now with "sustainable Development",
that is, development not only for the present but also for the future.^^ Thus, the
focus has changed to "sustained Development" which brings to the fore the
long term relationship between Ecology and Economic Development. Man's
irresponsible anxiety to achieve economic growth has brought a host of

:4
Supra note 16, p-XVII.
:5
Naidu, M. Kamal, "Impact of Economic Reforms on Environment Prolection-An Essay", edited by
SB. Veinia and Shiv K. Singh, Deep and Deep Publication, 1997. p-4.
Ibid.
216
environmental problems and these problems have posed a threat to very
existence of life on earth.
H. Right of Man: Reasonable Use of Natural Wealth
During 17'^ 18'^ and 19'^ centuries the scientists like Issac Newton,
Rene Descates and Franics Bacon treated everything including planet earth as
a machine. In the twentieth century, modern community has become aware of
the limitations of the mechanistic view. To provide a complete and definitive
description of reality, rational mind and scientific theories are sometimes found
insufficient.
"In modern physics, the image of the universe as a machine has
been transcended by a view of it as one indivisible whole, whose parts are
essentially Interrelated and can be understood only as a patterns of a
cosmic process".^'^
Therefore, before 1980s no estimate used to be made for loss of an
"irreplaceable asset" when the forest resources were exploited. However,
during 1980s it has come to understand that the economy and environment are
very much interrelated and forests and wildlife are its integral parts. The
economy makes uses of forests resources through its function-production,
distribution and consumption for attaining economic development but
overpopulation, over productivity and over consumption are factor responsible
for depletion of natural resources. The purpose of national wealth is to attain
maximum human welfare. It is the final goal of economic development but is
impossible without the protection of natural resources. Hence, while becoming
developed nation protection of forests and wildlife is sina qua non without which
development will be unsustainable. Thus, the Right of man is to properly utilize
the natural resources not only in his own interest but in the interest of posterity
and the natural creation.

Vallabhan, T.V. Murali, '"Protection of Environment and Promotion of Development", Deep and
Deep Publication. }993, pp-9-23.
217
3. PROHIBITION OF ENCROACHMENT UNDER FOREST LAW
Forests Laws relating to prevention or removal of encroachments in India
has been growing in its volume during the recent years. Even before the
enactment of Acts specifically dealing with particular segments of the Indian
Forests and Wildlife,^^ India has had its general law, substantive as well as
procedural provisions which could be pressed into service for taking legal
proceedings to protect forests from encroachments. Recent Acts, in a sense,
has been superimposed upon themselves in view of, perhaps, the inadequacy.
They do not necessarily abrogate or replace the provisions of general law.
The Indian Forest Act (herein after referred to as Act) was enacted to
preserve and safeguard the forests specifically in India, the Act makes various
provisions to prohibit encroachments. In the schemes, it provides for a State
Government to constitute any forest lands or waste lands as reserved forest,
which is the property of Government or over which the Government has
proprietary rights. Chapter II of the Act deals with the subject of reserved forests
and prohibition of encroachments on such forests. Chapter III deals with village
Forests, viz; reserved forests which ave been assigned to any village
community, Chapter IV deals with protected forests and Chapter V with private
forests and land not being the property of Government. In this manner the Act
contemplates the protection of forests or forest lands under certain conditions
from encroachments whether they be reserved forests, village forests, protected
forests or forest of private owners.^^ However, the preamble and other
provisions of the Act are wide enough to cover all categories of forests.^"
Therefore, the word "forest" is of wide import. Prohibitions of encroachments
on forests in India are broadly discussed as under:
A. Prohibition of Clearing or Breaking-up Forests

Initially the Indian Forest Act, 1927 and then, the Forest (Conservation)
Act, 1980 prohibit clearing of forest by any person for any purpose unless
permitted by the competent authority. The Forest (Conservation) Act 1980 and
its implications on other forest laws have been discussed separately infra. Here
the provisions regarding prohibition of encroachment by clearing or breaking-up
forest as contained in the Indian Forest Act, 1927 are discussed.

"'^ The Forest Laws lay down their own procedure to adjudicate the crimes under Forest Acts.
-' Goal H.O. Vs. Emperor, 48 Cr LJ 148 at pp-149-150.
•'" Mulchand Ratilal Asuthi Vs. State of Madhya Pradesh, AIR 1960 MP 152 at p-153.
218
a) Prohibition of Clearing Reserved Forests:- The State Government is
empowered to constitute a reserved forest in any forest land or waste land
which is the property of Government or over which the Government has
proprietary rights, or to the whole or any part of the forest - produce of which
the Government is entitled.^^ A particular manner has been prescribed in the
Act to constitute such a reserved forest.^^ Whenever it has been decided to
constitute a reserved forest the State Government shall issue a notification and
publish it in official gazette. Unless it is so published, it is of no effect.^^ The
notification shall specify as nearly as possible, the situation and limits of such
land^'' and appointment of an officer called Settlement Offlcer.^^ The effect of
the issue of notification under Section 4 of the Act is that new rights cease to
accrue and State Government acquires certain rights over the notified land but
the notified land does not become a reserved forest until the manner prescribed
is complete and a notification under Section 20 of the Act is published.^^ The
paramount effect of the issue of notification under Sec. 4 of the Act is that "no
fresh clearing" for cultivation or for any other purpose can be made in such
notified land except in accordance with the rules made by the State
Government in this behalf ^^ Section 5 of the Act bar the "fresh clearings"
either for cultivation or for any purpose in the land notified under Section 4 of
the Act. The word "fresh clearings" denotes the clearings for the first time. If a
portion of the land or certain plots had already been cleared prior to the date of
notification Issued under Section 4, that land does not fall within the meaning of
"fresh clearings". Where the trees are removed from a piece of land after the
notification it certainly falls within the meaning of "fresh clearing" and,
therefore, the act of cutting away the trees from the notified area is an act of
encroachment of "clearing" within the meaning of Section 5 of the Act. It may
be for the purpose of cultivation or for any other purpose. The intention of
clearing or the purpose of clearing is not material for this section. The Dictionary
meaning of the word "clearing" is "the act of making clear". This does not

Section 3 of the Indian Forest Act, 1927.

Section 4 to 20.
MahendraLal Vs. State of U.P., AIR 1963 SC 1019-35.
Clause (b) of Sec. 4 of the Indian Forest Act. 1927.
Ibid. Clause (c).
AIR 1947 Pat 264.
Section 5 of the Indian Forest Act, 1927.
219
confine the operation of its use to clearing for cultivation alone. The first
meaning is the act of making clear and when a piece of land is being denuded
of trees, the land is being made clear by the removal of trees. The
encroachment of fresh clearing of forest is punishable with imprisonment for a
term which may extend to two years or with fine which may extend to five
thousand rupees, or with both, in addition to such compensation for damage
done to the forest as the convicting Court may direct to be paid.^® Therefore,
where a person makes any fresh clearing from the forest land covered by
notification under section 4 he must be held to have committed the
encroachment within the meaning of section 5 which is punishable under
section 26(1) of the Act.^^ The word "clearing" has further defined in Emperor
Vs. Venkenna Probha'*° and it has been held that the word "clearing" means
something in the nature of the removal of trees or shrubs. To prosecute a
person for an encroachment by clearing forest within the meaning of Section 5
punishable under Section 26(1 )(a), it is sufficient that there exists notification
issued under section 4 of the Act. Thus, such notification is a pre-requisite. The
Nagpur High Court has observed in a case,"^ that the clearing of the forest land
should be recent. The old cultivation does not come within the scope of Section
26(1 )(a) and Section 5 of the Act. Where it has not been found that the land first
began to be cultivated by the applicant or his precessors and after that the
notification issued under section 4, it can not be said that the applicant has
made a fresh clearing."^ Yet in an other case before Hon'ble Justice A.N. Mulla,
a contention raised on behalf of the petitioner that
"even If the allegation made by the prosecution is correct and the
applicant cut away some trees from a portion of this area and only stumps
were left behind it does not come under the words "making a fresh
clearings" and, therefore, the penal provision of Section 26 of the Act can
not be applied to the applicant".
The counsel also drew the attention of the Hon'ble Court to the meaning
of the words "clearing" given in Chambers Twentieth Dictionary, according to
which "clearing" means.

Section 26 (I) (a) of the Himachal Pradesh (Second Amendment) Act, 1991.
Manoranjan Das Vs. State, 1972 Cr LJ 354 at p-356 (Tripura).
ILR 30 Mad. 470: I Weir 760.
AIR 1929 Nag 190.
Matroo Khan Vs. State, I960 AWR 463 (HC):I96I (I) Cr.LJ 593: I960 ALL Cr.R.293.
220
 "the act of making clear; a tract of land cleared of wood etc., for
cultivation; method by which bankers exchange cheques and drafts and
arrange the difference",
upon the basis of above - noted definition it has been argued on behalf
of the petitioner that
"unless there is evidence to prove that the act of clearing was for
the purpose of cultivation, it can not be said that the cutting away of some
trees was an act of clearing".
On considering this argument, the Hon'ble Judge rightly observed that:
"It seems that the State before it can declare any area as a reserved
forest had to make two notifications. The first notification is to be issued
under Section 4, which may be described as a proposal for declaring a
particular area as a reserved forest. After this notification is issued,
claims are considered and decided, and finally a second notification is
issued under Section 20 when that area is finally notified as a reserved
forest".
"In the first place the procedure mentioned above indicates that any
tract of land can not be immediately declared to be a reserved forest. A
proposal has to be made first and a notification issued on that point and
subsequently after an appreciable lapse of time that tract of land can be
declared to be reserved forest. The State, therefore, can not come into
possession immediately and there would always be a short or long
interval in which others come to know that the State intends to take
possession of this tract. They would, thus, have plenty of time to defraud
the State of trees which are standing on that area".^^
The Hon'ble Judge further held that
"The State represents the community and, therefore, any
interpretation of a law which permits an individual with criminal designs
to defraud the community for his own personal gains can not be given to
the words of the statute unless the words leave no other option and this is
the only meaning which can be given to those words. Where more than
one interpretation is possible the interpretation which is in consonance
with the spirit of the enactment or also in consonance with the welfare of
the community should be preferred to that interpretation which endangers
the welfare of the community".^
The Hon'ble Judge, therefore, held that
"in my opinion where the trees are removed from a piece of land, it
certainly falls within the meaning of the word "Clearing" and therefore, I
would be doing no violence to the language used either in Section 5 or
Section 26 of the Indian Forest Act in holding that there is no force in this
contention",'*^
and the applicant was rightly convicted under Section 26(1 )(a) read with
Section 5 of the Act. Section 26(1) clause (h) further declares prohibition of
clearing or breaking up any land for cultivation or any other purpose in a

"••• Ibid.
'' Ibid.
•" Ibid.
221
 reserved forest. This is second kind of encroachment prohibited in a reserved
forest under the Act.
The difference between these two types of encroachments in a reserved
forest by clearing forests lies in the fact that the words "makes any fresh
clearing" used in Section 26(1)(a) and Section 5 of the Act indicate the stage
just after the issue of notification when the provisions of Section 5 of the Act
come into play and this prohibition of encroachment remains till finalization of
the declaration of proposed forest is made under Section 20 of the Act.
On the other hand, clause (h) of Section 26 (1) (h) which, thus, reads:
"or who in a reserved forest clears or breaks up any land for
cultivation or any other purposes; "
The words "clears or breaks up any land" in Section 26 (1)(h) indicates
the stage of after the publication of notification under Section 20 of the Act.
Therefore, to constitute an offence under clause (h) of Section 26 (1) of the Act
publication of notification under Section 20 of the Act is a pre-requisite i.e. if a
person makes any clearing in a reserved forest or breaks up the land in such
land, makes encroachment within the meaning of Section 26 (1) clause (h) of
the Act.
The similarity of these two types of encroachments is that intention or
motive or purposes for making clearing or breaking up of land is not material.
Intention, motive or purpose may not be a defence for the accused under both
the prohibitions of encroachments under clauses (a) and (h) of Section 26 (1) of
the Act. His intention or motive may be bonafide or he has no motive otherwise
or of a fair nature, it will make no difference for his punishment. When the land
does not pertain to reserved forest no act of clearing or breaking up the such
land will be punishable under Section 26 (1)(h) of the Act.'*^ The onus lies on
the State to prove the encroachment of the accused under Section 26(1) clause
(a) and (h) both. Where the notification has not been proved in accordance with
law by the documentary evidence as provided under the provisions of the
Evidence Act, the accused can not be held liable to punishment. For the
encroachment made under the provision of clause (a) of Section 26(1) of the
Act, the notification under Section 4 is required to be adduced in the evidence
and for the encroachment contemplated under clause (h) of Section 26(1) of the

"" 1961 (2)Guj. LR 146,

222
Act notification under Section 20 of the Act is required to be adduced in
evidence as per the law of Evidence Act. Therefore, where no notification was
adduced under Section 20 of the Act, the oral evidence adduced by the State
through Forest Officer to prove that the factum of such notification is not
sufficient to prove the encroachment of the accused under Section 26(1)(h).'*''
Moreover the boundary pillars by oral evidence endeavored to prove that the
land in question falls within certain boundary pillars in the absence of the
notification under Section 20 is not enough for the encroachment to have been
proved under clause (h) of Section 26(1) of the Act for punishment. Hon'ble
Chief Justice, Shri Agrawaia has discussed the importance of notification in
proving the encroachment by clearing forests under Section 26 (1)(h). The brief
facts giving rise to this case are that: the petitioners have been convicted of
offence of encroachment under clause (f) and (h) of Section 26(1) of the Forest
Act 1927. The prosecution case was that they cultivated land which fell within a
reserved forest and have cut down trees standing on that land. The defence of
the petitioners was that the land which has been cleared does not fall within the
reserved forest and that it has been the "raiyati" land of the petitioners for
many years. The prosecution produced and relied on a notification issued under
Section4 of the Act, and also led evidence that the land in question falls within
the boundary pillars fixed by the forest department, for proving that the land in
question falls within the reserved forest. Now the notification under Section 4 of
the Act is merely a notification declaring the intention of Government to
constitute certain land in a reserved forest and specifying as nearly as possible
the situation and limits of such land. The following Sections of the Act provide
for the determination of rights in the land which it is sought to constitute as a
reserved forest and similar matters. Then comes Section 20, which is the
Section under which the forest is eventually constituted. That Section provides
that when certain events have occurred which need not be specified here, the
State Government
"shall publish notification in the official gazette specifying definitely
according to boundary marks erected or otherwise, the limits of the forest
which is to be reserved, and declare the same to be reserved from a date
fixed by the notification"

"" (1969) 35 Cut LT 343 and also Janu Khan Vs. State. AIR 1960 Pat 213.
223
 Sub-Section (2) of this Section says that "from the date so fixed shall
be deemed to be reserved forest". The prosecution has not produced the
notification, if any issued under Section 20 specifying definitely the limits of the
forest. It is clear from the perusal of the Section that a notification under this
Section is essential for the purpose of declaring a forest as reserved forest, and
that such notification must specify precisely the limits of the forest and the date
from which the forest is constituted.
"The prosecution has, by oral evidence, endeavored to prove that
the land in question falls within certain boundary pillars. Presumably it
was intended to imply that these were the boundary marks referred to sub
Section (1) of Section 20. It may be that they are so, but for the purpose of
proving the encroachment of the petitioners it is necessary to show not
only that they did the acts mentioned in clause (f) and (h) of Section 26(1),
but also that they were not entitled to do those acts because there had
been a notification issued under Section (20(1) specifying the limits of the
forest and that the land in question fell within those limits".'*^
Thus, the action of the State failed for want of notification issued under
Section 20 of the Act. This shows the poor boundary demarcations on the
ground or in the maps. This helps encroachers and the abettors to exploit the
situation to their advantage. Many encroachment cases are lost in the Courts
on this account alone.
It is submitted that after issue of a notification for constituting any land as
reserved forest, the Act bars the accrual of any right in respect of the land
covered by the notification. The State Governments are, however, entitled to
make grants and contracts.'*^ This power is used by the State Government for
commercial purpose. Further more, the Act provides an exception^" enabling
the State Government to make rules to regulate the fresh clearing in the forest
proposed to be reserved. These provisions are contrary to the spirit of the Act
and intendment of the legislature and require to be amended.
b) Prohibition of Clearing or Breaklng-up Protected Forests:- Chapter
IV of the Act provides for what are called protected Forests and the State
Government is empowered to constitute any land other than reserved forests as
protected forests. The State Government is further empowered to make rules to
regulate rights of people on such protected forests. Under Section 30 of the Act,
State Government has authority to prohibit encroachment by breaking up or

'' (1969) 35 Cut LT 343.

Section 5 of the Indian Forest Act, 1927.
Ibid.
224
 clearing the land in a protected forest from a certain date by issuing notification
thereof. This breaking up or clearing of any land in protected forest is prohibited
for cultivation, for building, for herding cattle or for any other purpose.^^ Where
"breaking of ground" is only forbidden by a notification issued under Section
30 of the Act, no offence of encroachment is committed when there has been
only clearing.^^ "Breaking up or clearing for cultivation" means the breaking
up of land or clearing it for cultivation after issue of notification under Section 30
of the Act The expression "breaking up or clearing for cultivation" does not
extend to cultivation of land broken up before the issue of such notification.^^
Therefore, the encroachment by breaking up or clearing of forest land in a
protected forest to be committed is only from the date fi^ed in the notification to
be issued under Section 30 of the Act. It means the date fixed through such
notification is a pre-requisite for the offence of clearing or breaking up protected
forest land. The provision of Section 30 is also to be read with Section 31 of the
Act. The notification issued under Section 30 of the Act is not complete unless
its translation in local vernacular language is not published under Section 31 of
the Act. The notification under Section 30 of the Act will be valid when its
translation in vernacular is published and affixed in a conspicuous places in the
neighborhood of the area. For the proof of the notification the production of
Gazette is not sufficient, the publication under Section 31 of the Act must have
been proved^'* otherwise no conviction could be possible in contravention of
such notification.^^ Penalty for breaking up or clearing for cultivation or any
other purpose in any land in any protected forest has been laid down under
Section 33 for any encroachment prohibited under Section 30 of the Act. It shall
be punishable with imprisonment for a term which may extend to two years, or
with fine which may extend to five thousand rupees or with both. The provisions
of Section 33 of the Act only provide punishments for the commission of
encroachment by breaking up or clearing the forests and there is no provision
specifically given in the Section to award compensation for damages caused in
respect of the protected forest.^^ Thus, there is totally inadequate punishments

51
Clause (c) of Section 30 of the Indian Forest Act, 1927.
52
AIR 1927 ALL 121:28 CrLJ 562 (DB).
State of Bihar Vs. Munshi Kahar, AIR 1963, Patna, 195.
(1970) 36 Cut LT 395.
AIR 1963, Patna, 195: 1963 (I) Cr LJ 605 DB.
Janu Khan Vs. State, AIR I960, Patna, 273.
225
in respect of encroachments by breaking up or clearing forests contemplated in
Chapter IV i.e. protected forests. The punishment meted out to the encroachers
is insignificant in terms of gravity of the encroachment committed,
c) Clearing or Breaking-up Forests in Contravention of Rules
Section 32 of the Act empowers State Government to make rules to
regulate inter-alia the clearing or breaking up of land for cultivation or other
purposes in the protected forests.^^ If the rules made by the State Government
are inconsistent with provision of the Act their validity may be impeached and
no person could be punished on the breach of such rules. From the perusal of
the provisions contained in Chapter IV of the Act, it is to be noticed that
whereas Section 30 empowers the State Government inter-alia to prohibit
clearing or breaking up land for cultivation or any other purpose in a protected
forest, Section 32 empowers the State Government to make rules to regulate
such forests inter-alia for breaking up or clearing land for cultivation or any other
purpose. Even if the legislature had said nothing in this matter it would have
been plausible to argue that the prohibition under Section 30 would yield before
any permission given under the rules made under Section 32 of the Act.
However, all doubts are set at rest by Section 34 of the Act which runs -
"Nothing in this Chapter shall be deemed to prohibit any act done
with the permission in writing of the Forest Officer, or in accordance with
rules made under Section 32 except as regards any portion of a forest
closed under Section 30, or as regards any rights the exercise of which
has been suspended under Section 33, in the exercise of any right
recorded under Section 29".
It follows clearly from the wording of Section 34 of the Act that the
prohibition of the clearing of land would be ineffective where such clearing is
being made in accordance with the rules made by the State Government under
Section 32 of the Act.^® It is obvious, then, if the clearing or breaking up of land
in the protected forest is done in contravention of rules made by the State
Government, the prohibition contemplated under Section 33 of the Act is
attracted and this act of the accused would fall within meaning of term
encroachment which is punishable with imprisonment for a term which may
extend to two years, or with fine which may extend to five thousand rupees, or
with both.

Clause (g) of Section 32 of the Indian Forest Act, 1927.

State of Bihar Vs. Lt. Col. K.S.R. Swami, AIR 1966, SC 1847.
226
d) Clearing Forests in Village Forests:- Chapter III of the Act deals with
village forests and empowers the State Governments to assign to any village
community the rights of Government to or over any land which has been
constituted a reserved forest and further empowers to make rules for regulating
management of such forests. The formation of Village Forest under this Chapter
of the Act is discretion of the State and such assignments may be cancelled by
it at any time. The wording of Sub-Section (2) of Section 28 is very clear to
show that clearing of forests in Village Forests is not allowed, it runs as follows;
"(2) The State Government may make rules for regulation the
management of village forests, prescribing the conditions under which
the community to which any such assignment is made may be provided
with timber or other forest produce or pasture, and their duties for the
protection and improvement of such forest".
It follows that clearing of such forest can not be regulated by making
rules. It is management of these forests with regard to providing timber or other
forest - produce or pasturing only which are to be regulated and also the duties
for protection and improvement of these forests. If any one clears Village Forest
then this will be encroachment within the meaning of provisions of Section 26
(1) (h) of the Act because all the provisions of the Act relating to reserved
forests apply to the Village Forests.^^
Chapter III contains only one Section namely Section 28 and it appears
that the legislature intends to provide certain rights to the Village Community in
the reserved forests subject to the participation of these communities in the
management, protection and improvement of these reserved forests. However,
the clearing of these forests is prohibited as if these are reserved forests
purpose of clearing is not material. It may or may not be for cultivation or for any
purpose. The inhabitants have been given no statutory rights, however, their
rights are subject to rules and conditions prescribed by the State Government. It
is interesting to denote that in formation of Village Forests under this Chapter a
particular manner prescribed in Chapter II is to be followed i.e. notification
under Section 4 to Section 20. The only difference appears in determination of
rights which are to be regulated as per rules framed by the State Govt. It may
be summed up clearing forests in a reserved forest or village forest is prohibited
unless permitted and clearing forest in a protect forest is permitted unless

Sub-Section (3) of Section 28 of the Indian Forest Act, 1927.

227
prohibited under the provision contained in various sections of the Indian Forest
Act. The State Governments in India have grossly misused the power given to
them and Indian forests have been cleared or broken up for cultivation and for
various purposes and the process continues unabated.
e) Protection to Private Forests:- Chapter V of the Act deals with control
over forests and lands not being the property of the Government. The
provisions of this chapter would reveal the Indian Forest Act is intended to be a
piece of legislation not only in respect of Government forests but also in respect
of forests and lands not belonging to Government.^" The Act provides protection
to private forests from encroachments but the fact remains that the Government
Forests have been encroached upon by clearing them both for cultivation and
for other purpose. Regularization of encroachments have been a regular feature
in the past, occurring at regular intervals with the help of the State
Governments. It has become a vote - catching device in the hands of politician
and political parties in India. The Officers initiating encroachments removal
drives earn wrath of their political masters and the clearing or breaking-up
forests continues with one reason or other.
B. Prohibition of Removal, Collection or Extraction of Material from
Forests
The term "material" in its normal and popular connotation includes a
substance or substances from which something else is or can be made that is a
thing or things with which something is done;^^ raw materials; and, as we have
seen that the word "forest" includes all that goes with it such as trees with
leaves and fruits on them, shrub, bushes woody vegetation, undergrowth,
pasture, honey combs attached to trees, juices dried on trees, things embedded
in earth like mines and quarries with their produce locked inland wild and stray
animals dwelling in such land, in other words, material in its primary and natural
state as well as wild life therein unquestionably go with the word "forest".
Therefore, the expression "forest" as a legislative head would surely include
within its compass all these material. A forest is the land that is constituted,
declared or recorded as a forest. The forest is an uncultivated land of
spontaneous growth of woody trees, shrubs grass, mixed with pasture capable

''" Kanshi Prasad Vs. State of Orissa, AIR, 1963, Orissa, 24.
'' See Oxford Advance Learner's Dictionary, S'^ Edn; 1999, p-722.
228
 of supporting wildlife, influencing climate, environment and rendering other
beneficial services but the forest resources do have carrying capacity being the
repository of all these things as above. In view of dwindling material increasing
demands and environmental safety, the prohibitions enunciated in the forest
laws in the context of encroachments made on the forests are discussed infra.
Though the vision of an eco-cycle society has grown in recent years but the
prohibitions on encroaching by removal, collection or extraction of material from
forests were laid down even before pre-British period and Britishers codified
these prohibitions and it will be interesting and significant to analyze the
provisions of prohibitions of encroachments by taking out any material from the
natural resources in context to harmonious economic development with the
needs of sustainable development, environment protection and the
conservation of natural wealth.
The Indian Forest Act, 1927 in its various provisions and in view of
classes of forests imposes prohibition on encroachments by removing,
collecting or extracting any material from the such classes of forests. The Act
defines material as "forest produce".^^ Forest Produce includes both Timber
Forest Produce and Non-Timber Forest Produce also Minor Forest Produce. It
follows - that the term "material" includes what comprises of a forest is
material of the forests. Section 2 (4) of the Act reads, thus:
"2(4) Forest Produce includes - (a) the following whether found in,
or brought from, a forest or not, that is to say: timber, charcoal,
daoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua
flowers, mahua seeds, kuth and myrabotams; and, (b) the following when
found in or brought from a forest, that is to say: (I) trees and leaves,
flowers and fruits, and all other parts or produce not herein-before
mentioned, of trees; (ii) plants not being trees (including grass, creepers,
reeds and moss), and all parts or produce of such plants; (iii) wild animals
and skins, tusks, horns, bones, silk, cocoons, honey, and was, and all
other parts or produce of animals; and, (iv) peat surface soil, rock, and
minerals (including lime-store, latrite, mineral oils, and all products of
mines or quarries".
Therefore, the definition of the term as given in Section 2 (4) is inclusive
and not exhaustive. Anything which is usually found in the forest is a forest
produce.^^ It is evident that the definition makes two categories of what it
declares of "forest - produce or material". The items under first category

" Section 2 (4) of the Indian Forest Act, 1927.

"' Mahendra Nath Pathak Vs. State of Assam, AIR 1970, Assam 32; State Vs. District Judge, Bijnore,
AIR 1981 ALL 205.
229
enlisted in clause (a) of that Section are those which are forest produce whether
found in or brought from a forest. This means these items are found in or
brought from a forest only and no where else. The items under second category
as listed in clause (b) are those which become forest produce only if they are
found in or brought from a forest. There is, therefore, hardly any doubt that both
the categories indicate the forest to be the source or original depository of the
forest produce. The expression "found in a forest" does not necessarily
require an actual discovery of those items rather the expression "found in"
actually refers to things growing in a forest like timber, trees, fuel trees, fruits,
flowers etc; or mineral deposits or stones existing in the forest. The distinctive
feature is either the existence or the growth or deposit within the area of a forest
and not their discovery by some one. The idea underlying the expression
"brought from" is equally emphatic of the source of the thing so brought being
within the area of a forest. It has been held that the conveyance or transport
involved in the idea of a thing being brought undoubtedly has its beginning in
the forest by virtue of the use of the word "from".^^ Fish found in a water
channel or a pond situate in forest area is forest produce.^^ The legislature has
expressly defined the materials of forest in two categories as contained in
clause (a) and (b) of Section 2 (4) of the Act and has made it absolutely clear
that Mahua flowers shall be deemed to be forest produce for the purposes of
Indian Forest Act whether they were brought from a forest or not. It follows that
Mahua can only be found in forest and if found elsewhere it requires permit
from the authorities for its transit. On a plain reading of Section 2 (4) read with
Section 41 and 43 of the Act, it would follow that the expression forest material
or as used in the Act "forest produce" tends to include not only forest produce
grown on or collected or removed from the property of the Government but also
that grown on or collected or removed from the property of the private
individual.^^ The surface soil, it is found in a or brought from a forest, is a
forest produce or material but if it is removed from a private "mulki" it does not
fall within the meaning of the expression "forest produce"^'' That is why the
item "surface soil" has been placed in the second category under clause (b) of

"' ^ashwant Manu Dodamani Vs. State of Mysore, 1962, I Cr LJ 832 at p-833; 38 Mys U 988.
"^ State Vs. Distt. Judge, Bijnore, AIR 1981, ALL 205: 1981, 7 ALL LR234.
*" Kasi Prasad Sahu Vs. State of Orissa, AIR 1963, Orissa 24 at p-25: 29 Cut LT 150 (DB).
" Supra note 64, p-833.
230
Section 2 (4) of the Act and can be distinguished from "Mahua" placed in the
first category under clause (a) of that Section.
The term "timber" also has been kept in the first category under clause
(a) of the Section 2(4) of the Act. "Timber" whether found in or brought from a
forest or found or brought from elsewhere is material of forest i.e. forest
produce. This expression "timber" has also been separately defined in Sub-
Section (6) of Section 2 of the Act. This Sub-Section runs, thus;
"(6) "timber" includes trees when they have fallen or have been
felled, and all wood whether cut up or fashioned or hollowed out for any
purpose or not".
Apparently, the legislature felt the necessity of giving "timber" a wide
meaning of this expression.^^ Similarly, but interestingly, the expression "tree"
has also been defined separately under Sub-Section (7) of Section 2 of the Act.
It reads as follows:
"(7) "tree" includes palm, bamboos, stumps, brushwood and canes;" but
at the same time this term "tree" has been placed under clause (b) of Section
2 (4) of the Act so as to finally distinguish it from the expression "timber". This
scheme of legislature is writ large to give inclusive and wide meaning to the
material found in or brought from a forest. It is settled law that the rule of
"ejusdem generies" is applicable only when generic words follow the more
specific and not when specific words follow a general term. The rule applies
when
"(1) the statute contains an enumeration of specific words;(2) the
subjects of enumeration constitute a class or category; (3) that class or
category is not exhausted by the enumeration; (4) the general terms
follow the enumeration; and (5) there is no indication of a different
legislative intent".^^
If the subjects of enumeration belong to a narrower genus, there is no
principle that the general words should be confined to the narrower genus.^°
Hence, the question of applying this rule to restrict the scope of the expression
material from forest or forest produce does not arise.^^ Since the definition
given the Act of Forest material is inclusive and not exhaustive, therefore, it is to
be understood in a wider connotation. Therefore, Movement of Khair Wood, has

Ram Lai Vs. Ram Gopal, AIR 1916, Oudh 211; Thuna Runa Vs. S. Rawther, AIR 1928, Mad 392.
Amar Chand Vs. Collector, AIR 1972 SC 540. p-545.
U.P.S.E.B Vs. Harishankar, AIR 1979 SC 65, p-73.
Supra note 66, p-25.
231
been held to come within the meaning of Section 2(4)(a) of the Act/^ Bamboo
Matting whether "forest produce", it has been held that the definition of
"forest produce" includes not only naturally grown but also product prepared
out of such produce with the aid of human skill-thus, "bamboo matting"
prepared out of bamboo, a forest produce is also a forest produce and comes
within the scope and ambit of Section 2(4). Definition also includes goods when
found in forest or brought from forest and seized, on National Highway/^ The
word forest produce has to be interpreted in an exhaustive manner so as not to
defeat the purpose and object of the Act, giving a restrictive meaning to the
forest produce would frustrate the object of the Act in the sense that it will
encourage Illegal removal or extraction of forest produce. The object of the
Indian Forest Act, 1927 can be easily frustrated by cutting trees and make
furniture in the forest and then remove the furniture from forest. Similarly, cane
Is a tree as defined under Section 2 (7) of the Act. Cutting of canes trees and
then make basket of such canes claiming that the baskets are not forest
produce there is no restriction in removing it. The cane being forest produce its
baskets made by human labour is also a forest produce. Thus, without transit
permit can not be transported.^^ Raw cashew nuts arid collected in the forest or
found in the vicinity of the forest having a direct proximate relation to the forest
itself. They are forest produce calling for a transit pass. When they are brought
to the factory and dried and processed having undergone different stages and
are packed in tins for transportation, they are not really to be reckoned articles
as immediately brought from the forest. It is the ultimate stage of its being used
as a snack that distinguished it from that stage of the raw seed or fruit when it is
immediately brought from the forest. The logs of mango trees come within the
definition of the forest produce. The logs of mango trees, although purchased
from a private person, can not be transported without a valid transit pass. The
cow-dung dropping (Gobar) from the cattle in the forest is not forest produce.
Each of the two expressions "all other parts of produce of animal" and "the
surface soil" found in or brought from forest refers to natural occurrence in the
forest. As such dung excreted by the domestic cattle which are taken in the
forest area for grazing under license is not included within the meaning of

- Shankar Traders Vs. State of Bihar, 1997 (2) PL JR 24.

" State of Maharashtra Vs. Suresh. 1993 FLT 205 (Bomb).
'' D.D. Sharma Vs. Hari Prasad, 1997 (2) PLJR 619.
232
 "forest produce".''^ However, slate, rocks, mineral, animal skins, horn etc. are
forest produce and needs valid permit from competent authority.
As a matter of fact the "produce" word refers to natural grown up items
in term forest that is why the courts have to define various forest produce as to
whether those are forest produce or not. It is, therefore, submitted that the word
"material" can be inserted alongwith word "produce" in Section 2(4) of the Act
so that there is no lota of doubt in the mind of common people with regard to
the forest produce what it is or what it is not because every man has his limited
measure of understanding. The more complex the law is, the more it is above
the faculties of a great number. In the same proportion it is less known; it has
less hold upon men; it does not present itself to their minds upon necessary
occasions; or, what is yet worse, it deceives them, and produces false
expectations. Both style and the method must be simple; the law ought to be a
manual of instruction for each individual; and everyone should be enabled to
consult it in doubtful cases, without the aid of an interpretator.''^ This is a
perennial message from the legendry erudite Bentham for the legislators with
regard to any enactment.
a) Prohibitions in a Reserved Forest:- Chapter II of the Indian Forest Act
deals with reserved forests and we have seen the formation and declaration of
a reserved forest in previous paras. Section 26 of Chapter II prohibits various
acts and also prescribes penalties for the breach of these prohibitions as the
acts in contravention of the provisions given in this section amount to
encroachments. Thus, the removal, collection and extraction of any material
from forest shall become an encroachment if made in contravention of the
provisions discussed below;
(i) Quarrying etc. an encroachment:- Clause (g) of Section 26(1) declares
that any person who in a reserved forest quarries stone; burns lime or charcoal
or collects subject to any manufacturing process, or removes any forest
produce is an offence and as such it prescribes punishment for the same.
Extraction of minerals like any other developmental activity is inevitable as the
entire civilized and developed world depends upon mining raw materials next
only to food grains. Moreover, it is the only industry in world for which we do not

" Barkat Jalam A. Divasi Vs. State of M.P., 1986, MPLJ 704 at p-706 (MP).
^'' Benlham, Jeremy, 'Theory of Legislation", N.M. Tripathy, Bombay, 2000, p-92.
233
have an alternative sites'''' but over exploitation and indiscriminate mining
throughout the world has been one of the major factors in degradation of land,
reduction in forests with its consequences like intensive land form modification,
dereliction of land despoliation of natural landscapes through spoil heaps and
excavations. Dr. Kailash Thakur had quoted in his work on environmental law
and policy in India, the U.S. Department of Interior "Impact of Surface Mining
on Environment" in T.D. Detwiyer, Man's Impact on Environment (New York,
1971) at page 348 that
"the U.S. Department of Interior, in an illustrative article has
elaborated the magnitude of damage done to land by mining operations
in U.S.A. It is reported that an area of 1.3 Million hectares is affected by
mining activities. In 1964, there was an increase of 62000 hectares
annually. In Mesabi Range, the ore bed over 193x4.9 K.Ms will become a
giant canal in 60 years. Large amphitheatre like opening, one mile in
diameter and hundreds of feet deep have been created by coal mines;
about 40000 Kms. Long waste materials is lying precariously on slopes
and keeps going down hills. There are about 52,000 Kms. of high well
created by coal mines in Appalachians Landform modification by mining
is seen in the form of subsidence of land "Spoiled piles" ridges by strip
mining and slag hills. Dereliction is another form of land pollution. It is
said that abandoned quarries, hill side excavations account for 12140 ha
or 27% of the areas of derelict land in England and Wales".*^^
Therefore, we learn from the experience of these developed country. In
India, the mining industry became identified in many places in public mines, as
a major source of damage to the environment. However, as the mining
constitutes one of the main building blocks of development, this activity has to
be undertaken under social regulation, consistent with appropriate safeguard
regarding environmental and health hazards.^^ The Indian Forest Act, 1927,
therefore, has made prohibition to encroach upon a reserved forest by way of
mining, excavation of minerals, burning lime or coal etc. The cursory reading of
clause(g) of Sub-Section(l) of Section 26 reveals that not only quarrying or
mining etc. has been prohibited but any manufacturing process of these items
in a reserved forest also has been banned. Removal of any forest produce too
has been forbidden. Thus, the clause (g) of that section prohibits every forest
produce to be extracted, removed or collected from a reserved forest whether it
is in its raw shape or is subject to any manufacturing process. However, an

Ihakur, Kailash, "Environmental Protection Law and Policy in India", Deep and Deep Publications
Pvt Ltd, 2005, p-69.
Ibid, Dix, Environment and Pollution, 1981, quoted by Dr. Kailash, p-99.
Saproon Vally Case, AIR 1993 HP 52:1992 FLT 113 at p-127 (HP).
234
encroachment to have been connmitted within the nneaning of clause (g) of that
Section, a notification issued under Section 20 of the Act is a pre-requisite and
is to be proved in evidence in according to evidence law of the land. Where the
encroachment by quarrying, mining, extraction, burning coal or lime or
collection or removal whether in raw form or subject to manufacturing process
of any forest produce or material of forest is proved, it is punishable with
imprisonment for a term which may extend to two years or with fine which may
extend to five thousand rupees or with both; and, the convicting Court in
addition to the above punishment may award such compensation for the
damage done to the forest as it may direct to be paid to the forest department.
It has been observed by the Hon'ble Patna High Court that when the place of
occurrence fell under the limits of the reserved forest, the accused is liable to
punishment under Section 26(1 )(g) but when it is established that the land does
not come under the area notified under Section 20 of the Act, there could be no
conviction under this Section.®" However, Sub Section (2) of Section 26 of the
Act gives exceptions to the fore mentioned general rule and declares that any
act done with the permission in writing from the Forest Officer or under any rule
made by State Government shall not be an encroachment.®^ Also if the act is
done in exercise of any right continued under clause (c) of Sub-Section(2) of
Section 15, or created by grant of contract in writing made by or on behalf of
the Government under Section 23 of the Act shall also not constitute an
encroachment within the meaning of Section 26(1) of the Act.®^ It, therefore,
follows that what acts have not been permitted in reserved forests are
prohibited and are encroachments on the reserved forests for which
punishment has been prescribed in addition, the convicting court may also
award compensation for the damage done to such forests,
b) Prohibition of Quarrying Stone etc. in Protected Forests:- According
to Chapter IV of the Act any forest land and waste land which for the time being
is not included in a reserved forest the State Government is empowered to
constitute a protected forest. The forest land or waste land must be property of
government or over which the government has proprietary rights. The protected

'° AIR 1946, Pat 41.

*' Clause (a) of Sub-Section (2) of Section 26 of Indian Forest Act, 1927.
ibid. Clause (b).
235
 forests are constituted after issuing a notification in official Gazette.°^ The State
Government Inter-alia has also authority to prohibit quarrying of stone, burning
of lime stone or charcoal, removal or collection of any forest produce etc. in the
protected forest.®'* The State Government has also been empowered to make
rules to regulate the cutting, sawing, conversion and removal of trees and
timber, and collection, manufacture and removal of forest produce from the
protected forest.®^ The State Government has also been enabled to make rules
for grant of licenses to the inhabitants of towns and villages in the vicinity of the
protected forests to take trees, timber or other forest produce for their own
use.®^ As well as grant of licenses to person felling or removing trees or timber
or other forest produce from protected forests for the purpose of trade etc.®^ All
rules made by the State Government under the Act shall be published in the
official Gazette and shall thereupon so far as they are consistent with the Act
have effect as if enacted therein. Clause(d) and (e) of Section 32 relate to
royalty to be paid to the government by the persons for which also rules can be
made by the State Government but if the rules made by the State Government
are inconsistent their validity may be impeached and no person could be
punished on the breach of such rules.
Section 33 of the Act provides penalties for acts done in contravention of
notification under Section 30 or of rules under Section 32 made by the State
Government and, inter-alia, that contrary to any prohibition under Section 30 if
any person makes encroachments by quarrying stones, or burns any lime or
charcoal or collects subject to any manufacturing process or removes any forest
produce it shall be punishable with imprisonment for a term which may extend
to two years or with fine which may extend to five thousand rupees or with
both.®® The State Government has been empowered by the statue that it may
declare any tree or class of trees reserved from a date fixed by notification®^
and declare any portion of a protected forest closed by specifying in the
notification^" and also to prohibit from a date fixed as aforesaid, the quarrying of

X'.
Section 29.
S4
Section 30.
SS
Clause (a). Section 32.
S(i
Clause (b) and (c) of Section 32
S^
Ibid.
88
Clause (b) of Section 33.
89
Clause (a) of Section 30.
90
Ibid, Clause (b).
236
stone, or the burning of lime or charcoal or removal of any forest produce from
such forest^^ but a notification not showing any date as mentioned above has
been held bad in the eyes of law and no conviction could be possible under
Section 33 of the Act on the basis of such a vague notification for the
encroachment of quarrying or extraction, collection or removal of any forest
produce.^^ Further more, to constitute an encroachment under Section 33 (b) of
the Act a valid notification under Section 30 is necessary.^^ For the proof
publication under Section 31 must have also proved^'' that the translation into
local vernacular language had been affixed in a conspicuous place in the
neighborhood of the forest.^^ The provisions of Section 33 of the Act apply to
the person who has actually committed the encroachment or who has actually
taken part in abetting the commission of encroachment, the principles of
vicarious liability does not apply to these cases.^^ In case where the accused
has admitted that there is certain loss and he was willing to pay compensation
for such, can not be a basis of his conviction as such admission does not
amount the confession of guilt and the accused can not be held guilty of cutting
of trees and removing of forest produce within the meaning of Section 33 of the
Indian Forest Act.^^ It has been held in a criminal appeal,^^ by a Division Bench
of the Allahabad High Court that no conviction could stand in the absence of
notification alleged to have been issued under Section 30 of the Indian Forest
Act by the State Government. Advocate has been unable to show the Court any
notification under Section 30 declaring that any portion of the forest would have
been closed for a certain terms and in these circumstances the acquittal of the
accused has been maintained and appeal was dismissed. The same view has
been found in Patna Case,^^ where it has been observed that
"the Additional Standing Counsel, who has appeared on behalf of
the State, has admitted that he has not been able to find out on the record
of this case any such notification under Section 30 of the Act. That being
so the conviction of the petitioners under Section 33 of the Act must be
held to be bad".

ibid. Clause (c).

AiR 1927 ALL 516:28 Cr.L J 562 DB.
1960 Cr. L.J 634.
AIR 1963, Patna, 195 : 1963(i) GJL. 605.
(1970) 36 Cut LT 395.
AiR 1955NUC(Punj) 1381.
AIR 1955 NUC(Punj) 1381.
AIR 1953, ALL 355.
AIR i960, Patna, 213.
237
 The conviction has, therefore, to be set aside. In order to establish an
encroachment made by an accused by quarrying, mining, burning coal or lime
or removal or collection of any forest material whether subject to any
manufacturing process or not in the protected forest the proof of notification
issued under Section 29 and Section 30 of the Act are absolutely necessary
and in the absence of such a proof no conviction can be made under Section 33
of the Act. Such notification must be valid and legal^°° and it must be proved in
accordance with the provisions of Evidence Act. Where the copy of a
notification produced by the Forest Department, was certified by a Forest
Officer it has been held that no reliance could be placed upon such copy as it
has not been certified and attested by the head of the Department which has
issued the said notification.^"^ Therefore, it has been held that a notification
which is issued by the Central Government or the State Government or by a
department of the Government is a public document, and a certified copy of it
may be produced in order to prove the existence, conditions or contents of that
document under Section 65 of the Evidence Act. Section 78 (1) of that Act
provides for the manner in which such documents can be provided. Where a
copy of which is on the record has been certified by the head of the department
which issued the notification it could certainly be received in evidence and taken
into consideration.^°^ The difference between the punishment provided for an
encroachment in a reserved forest under Section 26 and for an encroachment
made in a protected forest under Section 33 of the Act is that Section 33 only
provide punishments for the encroachments having been made and there is no
provision to award compensation for the damages caused in respect of the
protected forests,^°^ on the other hand, Section 26 of the Act for an
encroachments related to a reserved forests in addition, of punishment
provides for a compensation which may be awarded by the convicting Court in
favour of the Forest Department in lieu of the damage done to a reserved
forest.

c) Quarrying etc. in a Village Forest:- In the cases where the State

Government constitute Village Forest under the provisions contained in Chapter

'"" AIR 1927, Col. 516: 28 Cr. L.J 562

'"' AIR 1960, Pat 213
'"- Janu Khan Vs. State, AIR 1960 Pat. 213.
''" Janu Khan Vs. State, AIR 1960 Pat. 213.
238
Ill of the Act and make rules for regulating management of such forests^°^ all
the provisions of the Act relating to reserved forests apply so far as they are not
inconsistent with the rules so made to the village forests.^°^ Thus, if any person
in a village forests contrary to the rules made by State Government quarries,
mines or collects or removes any forest material whether processed by any
manufacturing or not, is punishable under the provisions of Section 26(1 )(g) for
such encroachments. This provision has already been discussed ante.
d) The Mines and Minerals (Regulation & Development) Act of 1957:-
As the short title suggests the thrust of this law made by Central Legislators is
to promote the prospecting of minerals and the development of mines.
Parliament amended the Act in 1986 in view of the devastating environmental
impact of mining activity in several regions across the country and introduced
provisions that require greater sensitivity whilst conducting mining operations.
For example Section 4A permits government to terminate a prospecting license
or mining lease in order to preserve the natural environment. Sections 13 and
15 of the Act empower the Centre and the States to frame rules to restore
vegetation destroyed by mining operation in any area.
It is submitted that this type of legislation must be subjected to the Laws
relating to forests so that forest encroachments are dealt with purposefully
otherwise there would be numerous laws and no forests left behind in this
country. Kudremukh National Park which falls in the district of Udupi, Dakshina
Kannada and Chickmagalour is a tropical evergreen forest, which houses the
largest wildlife reserve in Western Ghats, it supports the largest number of lion
tailed Macaques but Kudremukh Iron and Ore Company Limited (KIOCL ) has
turned out to be of devastating consequences for the Western Ghats in
Karnatka.^°^ With in one year temporary license granted to the KIOCL, lets silt
from mining area to the Bhadra reservoir contributing to the sedimentation.
Now, it has become highly endangered primate endemic to the Western Ghats.
It has become endangered for the flora and fauna of the area. Kiriburu: Mining
has wrought havoc on Saranda's forest land in Jharkhand State. Mining activity
has spelt Saranda's doom. Encroachment by lopping of trees for wood, fuel.

" " 1965 MPLJ541 (HC).

"' Sub-Section (3) of Section 28 of the Indian Forest Act, 1927.
"" Murthy. D.B.N., ''Environmental Awareness and Protection", Deep & Deep Publication , Delhi,
2004, p- II7.
239
food and fodder although has been discussed separately infra but this kind of
activity in a reserved or protected forests also amounts to an encroachment on
account of taking of any forest produce from a forest both under Section 26 and
33 of the Act. In fact excessive exploitation by lopping trees either for wood or
fuel or fodder are leading to extinction of natural forests. Immediate and sincere
efforts are required to conserve our national wealth and natural surroundings.
No doubt forest minor produce fodder, grasses, fruits, bamboo, canes, leaves,
dyes, gums, waxes, resins etc. are important to the forest dwellers but forests
hold keys to ecology, environment and atmosphere. A living tree is better than a
dead tree, therefore, the sustainable development of forests requires immediate
attention and legal changes in the law relating to forests.
C. Encroachments on Wildlife
Wildlife is an important ingredient of forests and environment.
Encroachment on Wildlife may be defined as contravention of any domestic or
international Law concerning wildlife in India by poaching for food, for fun or by
killing to supply an illegal wildlife trade or by possessing illegal material or
smuggling it across the borders. India has a long history of conservation going
back to a time when kings set aside areas as preserves for hunting but it were
Britishers who initially codified Elephants Preservation Act, 1879^°^ and in view
of expediency to provide the preservation of wild elephants.^°® The Act
regulated killing and capturing of wild elephant under license and prohibits
illegal killing and capturing of wild elephants. Indian Forest Act, 1927 did not
repeal the provisions of the Elephants Preservation Act of 1879 rather it enacts
further provisions for prevention of encroachments on wildlife and prescribes
penalties for such encroachments and also makes provisions for prevention of
killing or catching of elephants in area in which the Elephants Preservation Act,
1879 is not in force. It reveals that this historic Act is still in force in certain
areas of the country and in the areas other than the Indian Forest Act is
applicable. The term "Wildlife" has not been defined in the Indian Forest Act,
1927. However, the Indian Forest Act defines forest produce and in section 2
(4) includes wild animals and skins, tusks, horns, bones, silk, cocoons, honey

"" ActNo.6of 1879.

'"** Preamble of the Elephants Preservation Act 6 of 1879.
240
and wax, and all other parts or products of animals.^°^ Thus, the definition
though inclusive and not exhaustive refers to forest produce including the
wildlife. The species such as the passenger pigeon, west Indian mink seal,
great-auk and stellers sea cow have already become extinct because of the
demands of wildlife trade.^^° There are other species like rhino, elephant, tiger,
giant otter, spix's macaw and the Orinoco crocodile that are on the brink of
extinction and there are wild plants that provide genetic variation for crops and
are the natural source of various medicines threatened by the trade.
There is loss of habitat due to encroachments which is cause of concern.
Wildlife encroachments work at the cutting edge for a rare species. It is globally
accepted that the right of human being is reasonable use of natural resources.
Therefore, any illegal wildlife destruction is an encroachment on forests as
wildlife have its natural habitat in the forests. A piecemeal approach was
adopted until 1960's in India to protect wildlife. Wild Birds Protection Act
1887^^^ enabled the then Government to frame rules prohibiting the possession
or sale of any kind of specified wild birds. In the year 1912, "Wild animal" was
also added and it became "The Wild Birds and Animals Protection Act",
1912. The subject "Protection of Wild Birds and Wild Animals" has been
placed in the State-List (List II) of the Indian Constitution."^ Fast depleting
wildlife led the Indian Parliament to legislate a comprehensive legislation titled
as "The Wildlife (Protection) Act, 1972""^ assented by the President of India
on 9'^ September, 1972. Thus, now the entire concept of the Wildlife has been
widened by the Constitutional amendment as before this amendment the
application of the wildlife Act was restricted to wild animals and wild birds. The
epoch-making change is "with a view to ensuring the ecological and
environmental security of the country". It is now viewed as a compulsion to
protect the wildlife to ensure ecological and environmental balance of the
country.

Clause (b) (iii) of section 2(4) of the Indian Forest Act, 1927.
I 10
Fitzgerald, S., ''International midlife Trade: Whose Business Is It"? WWF-USA, 1989, p-
Act No. I Oof 1887.
See entry 20 of list 11 of Constitution of India.
ActNo.5.1of 1972.
24!
 The global value of wildlife trade as given by international enforcement
agencies is second only to narcotics in the illegal arena.^^'* The definition of
"Wildlife" as contained in the Wildlife (Protection) Act runs, thus as: "Wildlife"
includes any animal, aquatic or land vegetation which forms part of any
"habitat"."^ The words used in this definition are of the widest import and
embraces all life forms that are wild. The term "habitat" has been defined to
includes land, water or vegetation which is the natural home of any wild
animal."^ The term "Land" includes canals, cricks and other water channels,
reservoirs, streams and lakes, whether artificial or natural, marshes or wetlands
and also includes boulders and rocks."'' The Indian Wildlife (Protection) Act,
1972 also provides an inclusive definition of the word "animal" which has been
defined to include mammals, birds, reptiles, amphibians, fish other chordates
and invertebrates and also includes their young's and eggs."^ The act of 1972
prohibits hunting of any wild animal listed in any of its schedules. Schedule 1,11,
III and IV list different protected species, the killing or trade of which are
punishable by varying penalties. Schedule V list vermin animals or birds which
may be killed. Schedule VI lists protected plants. The term "hunting" with its
grammatical variations and cognate expressions, includes -
"(a) killing or poisoning of any wild animal or captive animal and
every attempt to do so; (b) capturing, coursing, snaring, trapping, driving
or baiting any wild or captive animal and every attempt to do so; (c)
injuring or destroying or taking any par of the body of any such animal or,
in the case of wild birds or reptiles or disturbing the eggs or nests of such
birds or reptiles"."^
The terms "captive animal"^^" and "wild animal"^^^ also have been
defined separately in the Wildlife (Protection) Act 1972, expressly, to avoid any
vagueness. It follows that the provisions contained in both the Indian Forest Act,
1927 and The Wildlife (Protection) Act, 1972 are complementary not
contradictory with regards to encroachment on wildlife. Therefore, prosecution
for encroachments on wildlife may be launched under either provisions of these

Vivek Menon Ashok Kumar, "Wildlife Crime" Wildlife Protection Society of India", Natraj
Publishers, Dehradun, 2"'' Edition, 1999, p-11.
Section 2(37) ofthe Wildlife Protection Act, 1972(w.e.f. 17-01-03).
Section 2 (15).
Section 2 (17).
Section 2(1).
Section 2(16).
Means any animal specified in Schedule I to IV which is captured or kept or bred in captivity, See
Sec. 2 (5).
Means any animal specified in Schedule I to IV and found wild in nature, See Sec. 2 (36).
242
legislations. However, the Wildlife (Protection) Act, 1972 provides severe
punishments as compared to the provisions contained in the Indian Forest Act,
1927. The Wildlife (Protection) Act, 1972 also declares that as from the
commencement of that Act, every other Act relating to any matter contained in
the Act and in force in a state shall, to the extent to which that Act or any
provisions contained therein corresponds, or is repugnant, to that Act or any
provision contained in that Act, stand repealed.^^^
The Wildlife (Protection) Act, 1972 prohibits notwithstanding anything
contained in any other law for the time being in force:- (a) Hunting any wild
animal which have been specified in Schedules I, II, III & IV of the Act.^^^ There
are two exceptions to this genera) rule - one, hunting of wild animals may be
permitted by the Chief Warden of Wild life in certain cases,^^'* two, license may
be granted for hunting of wildlife for special purposes.^^^ In the first case, while
granting permission reasons are to be recorded in writing and the Chief Warden
of Wildlife has to satisfy himself of those reasons with regard to wild animals
specified in Schedule I of the Act. Similarly, the Chief Wildlife Warden or his
authorized officer may after his personal satisfaction, the reasons to be
recorded in writing, in a specified area permit any wild animal or group of
animals specified in Schedule II, III or IV to be hunted by any person. In the
second case, the Chief Wildlife Warden shall be competent to grant a permit on
prescribed conditions and fee, to any person to (a) hunt any wild animal
specified in the permit for the purpose of education, scientific research,
scientific management, collection of specimens or derivations, collection or
preparation of snake-venom for the manufacture of life saving drugs and (b)
Picking, uprooting etc. of specified plants.^^^ Thus, the willful picking, uprooting,
damaging destroying, acquiring or collecting any specified plant from any forest
land and any areas specified by notification by the Central Governments^'' has
been declared an encroachments and hence, an offence. Further, to possess,
sell, offer for sale, or transfer by way of gift or otherwise, or transport any

'" Section 66.

"' Section 9.
' Section 11.
"' Section 12.
-" Section i7-A of Chapter III-A (inserted by Sec.l3, act 44 of 1991).
Clause (a) of Section 17-A.
243
specified plant whether alive or dead or part or derivative thereof^^® has also
been prohibited and therefore, is an encroachment on wildlife. However, a
member of Scheduled tribes has not been prevented from picking, collecting or
possessing in the district he resides any specified plant or part or derivative
thereof of his bonefide personal use subject to the provisions of the Wildlife
(Protection) Act, 1972 relating to protected areas such as sanctuaries and
national parks, declared by the State Government or Central Government as
mentioned in the Chapter IV of this Act.^^^ There is one exception to the above
general rule. Chief Wildlife A/Varden may with the previous sanction of State
Government grant to any person a permit to pick, uproot, acquire or collect from
a forest land or the area specified under section 17-A or transport subject to
such conditions as may be specified there in any specified plant for the purpose
of namely, education, scientific research, collection, preservation and display in
a herbarium of any scientific institution or propagation by a person or an
institution approved by the central Government in this ragard.^^° Thus, the
permit so granted shall be valid for a forest land or a specified area under
section 17-A or for transportation as my be mentioned and such conditions as
may be specified in the permit. The previous permission of State government is
mandatory for issue of such permit. The provisions of this Act prohibit cultivation
of specified plants^^^ and also dealing in specified plants without licence.^^^ It
further prohibits purchase, receipt or acquisition of any specified plant or
derivative thereof otherwise than from a licensed dealer. ^^^ The licensed
cultivator or dealer in a specified plant or part or derivative thereof shall have to
maintain and declare stock to the Chief Wildlife Warden or any other officer
authorized by the State Government^^'* otherwise keeping in control, custody or
possession etc. amounts to an illegal activity constituting an offence.^^^

The prohibitions of hunting any wild animal prescribed in the schedule I

to IV and protection of specified plants in any forest land and any specified area
notified by Central Government under that Act or any rule or order made there

i;s
Clause (b) of section 17-A.
'-" Proviso to Section 17-A.
i_-o
Section 17-B.
131
Section 17-C.
ro Section 17-D.
I.V.
Section 17-G.
15-1
Section 17-E.
I Vi
Section 17-F.
244
under in the event of contravention by any person or any person who commits a
breach of the conditions of any license or permit granted to him under the Act,
shall on conviction, be punishable with imprisonment for a term which may
extend to three years or with fine which may extend to twenty-five thousand
rupees or with both.^^^ This is a general rule regarding punishment under the
Act but where the offence committed is in relation to any animal specified in
Schedule I or part II of Schedule II or meat of any such animal or animal article,
trophy or uncured trophy derived from such animal, the offence shall be
punishable with imprisonment for a term which shall not be less than three
years but may extend to seven years and also with fine which shall not be less
than ten thousand rupees.^^^ It has further laid down that in the case of a
second or subsequent offence of the nature mentioned supra, the term of
imprisonment shall not be less than three years but may extend to seven years
and also with fine which shall not be less than twenty-five thousand rupees.^^®
Evidently, the punishment has been made severer in the event of second or
subsequent offence in the nature mentioned in sub-section (1) of Section 51 of
the Act.
a) Protected Areas:- Chapter IV of the Wildlife Protection Act, 1972 deals
with declaration and protection of Sanctuaries and National Parks by the State
Government.^^® Sanctuaries and National Parks may also be declared by the
Central Government where the State Government leases or otherwise transfers
any area under its control not being in area within a sanctuary.^'*° In that event,
if the Central Government is satisfied that the conditions specified in Section 18
of Wildlife Protection Act, 1972 are fulfilled or the conditions specified in Section
35 of that Act are fulfilled in relation to the area so transferred to it, may declare
such area to be sanctuary or a national park as the case may be by a
notification. Then, the provisions of section 19 to 35 (both inclusive) and Section
54 to 55 shall apply to such sanctuary as they apply in relation to sanctuary
declared by the State Government and the provisions of Section 35, 54 and 55

'f; Section 51 (1).

'" First proviso to section 51(1) (Substituted by Act 16 of 2003, Section 30) of the Wildlife Protection
Act, 1972,
"^ Second proviso to section 51 (1) of the Wildlife Protection Act, 1972, (inserted by Act 44 of 1991,
Section 37),
'"' Section 18to36-D.
Section 38.
245
 shall apply as are applicable in relation to a national park declared by the State
Government.^'*^ The powers and duties of the Chief Wildlife Warden in relation
to a Sanctuary or National Park so declared by the Central Government shall be
exercised and discharged by the Director or by such other officer as may be
authorized by the Director on this behalf, appointed by the Central Government
and all other references in the sections aforesaid, to the State Government shall
be construed as references to the central Government and reference to the
legislature of the State construed as a reference to the Parliament.^''^
Concisely, these provisions relates to the "Protected Areas" to have been
declared as such by the State Government or Central Government for the
protection of Wildlife. The Act provides the severest penalties for any
encroachment on wildlife in protected areas viz. Sanctuaries and National Parks
as compared to any other encroachments on wildlife and expressly declares
that where the offence of encroachment on wildlife relates to hunting in a
Sanctuary or a National Park or altering the boundary of Sanctuary or a
National Park such encroachment shall be an offence punishable with
imprisonment for a term which shall not be less than three years but may
extend to seven years and also with minimum fine of ten thousand rupees.^''^
Similarly, in the case of second or subsequent offence of the nature mentioned
for encroachment on wildlife in a protected area, the term of imprisonment shall
not be less than three years but may extend to seven years and also with fine
not less than twenty five thousand of rupees.^^'* Since the offences under the
Wildlife (Protection) act, 1972 are cognizable on account of encroachments
made on wildlife and punishable with imprisonment for three years or more,
therefore, are non-bailable. However, prosecuting officer in the event of grant of
bail to an accused must ensure that the Court in its order imposes a condition
that the accused shall not commit an encroachment similar to which he is
accused of, such a condition would be deterrent for the accused to further
commit alike encroachment and expedite the cancellation of bail already
granted in case the accused commits another encroachment on wildlife. The
power of entry, search, arrest and detention under the Wildlife (Protection) Act,

'" Section 38.

"- Section 38 (3).
'"*' Supra note 137.
"' Supra note 138.
246
 1972 has been conferred on Director or any officer autliorized by him or Chief
Wildlife Warden or the authorized officer or a forest officer or any police officer
not below the rank of a Sub-Inspector, if he has reasons to believe that any
person has committed an encroachment under the Act^"*^ and certain conditions
that shall apply while granting bail to any person accused of the commission of
any encroachment relating to Schedule I or part II of Schedule II or offences
relating to hunting inside the boundaries of National Parks or Wildlife Sanctuary
or altering the boundaries of such parks and sanctuaries have been expressly
mentioned in the Act.^'*^
b) Prohibitions of Encroachments on Wildlife under the Indian Forest
Act;-
(i) Reserved Forest: When the State government had constituted a
reserved Forest as per the provisions of Chapter II of the Act, any person who
in contravention of any rules made in behalf of hunting or shooting or fishing
etc. shall be an encroachment on wild life and punishable.^^^ This clause had
embodied two limbs namely, rule making enabling power of the State
Government for the regulation of activities of hunting, shooting, fishing etc. in
reserved forest and the provision relating to penalty if such rules are
contravened. First the rules are to made by the state Government then only an
encroachment case can be made out if any one contravenes such rules. The
Act also provides that killing or catching elephants in contravention of any rule
made by the State Government in any area in which the Elephants Preservation
Act, 1879 (6 of 1879) is not in force shall also be an offence.^'*^ In this case
also, the rules are to be made first by the State Government for the area of a
reserved forest in which the Elephants Preservation Act, 1879 is not in force,
(ii) Protected Forests:- The State Government has further been
empowered to make rules, inter-alia, to regulate hunting shooting, fishing,
poisoning water and setting traps or snaring in a protected forests and the
killing or catching of elephants in such forests in areas in which the Elephants

Section 50.
Section 5 I-A.
Section 26 (1) (i); of the Indian Forest Act, 1927 runs, thus: "who, in a reserved forest- (i) in
contravention of any rules made in this behalf by the State Government hunts, shoots, fishes, poisons
water or sets traps or snares".
Oause (/) of Sub-Section (I) of Section 26 of the Indian Forest Act, J 927.
247
Preservation Act, 1879 is not inforce.^^^ If any person infringes the rule so made
shall commit an encroachment on wildlife and is punishable with imprisonment
for a term which may extend to two years or with fine which may extend to five
thousand rupees or with both.
c) Comparison of the Measures:- Comparison of the provisions of both
these central legislations reveals that the Wildlife (Protection) Act, 1972 is a
complete code in itself. There is an exhaustive amendment recently introduced
to the law on wildlife in 2002 which came into force in 2003. A new
administrative mechanism of management of wildlife is envisaged under this
amendment which provides for the constitution of a National Wildlife Board^^°
instead of an advisory institution previously. Now, there is a Wildlife Board in
every State and Union Territory.^^^ The regulation introduced by this
amendment extends many things for example, selling or transferring wild
animals, keeping and breeding of wild animals in captivity and having trophies
of animals against rules. The duties of the National Board include taking
measures for the promotion and development of wildlife and their habitat. The
Wildlife (Protection) Act, 1972 does not bar the operation of other laws and
declares that nothing in that Act shall be deemed to prevent any person being
prosecuted under any other law for the time being in force, for any act or
omission which constitutes an offence against that Act of from being liable
under such other law to any higher punishment or penalty than that provided by
that Act.^" However, no person shall be punished twice for the same offence.
The provisions contained in the Indian Forest Act, 1927 relating to Wildlife
protection need to be redrafted as it simply empowers the State Govt, to make
rules first, thus, is vague in the sense that:
"If the style of the code differed from that of other books, it should
be by a greater clearness, by a greater precision, by a greater familiarity,
because it is designed for understandings of all and particularly for the
least enlightened class"J^^
And the destruction of the natural habitat is the most serious threat to the
wildlife. De-forestation has deprived the wildlife of its shelter and food. It has

'•" Section 32 (j).

' * Section 5-A, 5-B and 5-C of the WPA, 1972 substituted vide the Wildlife (Protection) Amendment
Act, 2002 (No. 16 of 2003 dated 17-01-2003).
'-'^' Section 6 of the Wildlife Protection Act, 1972 (substituted vide Wildlife, Amendment Act, 2002
(No,16 of 2003 dated 17-01-2003).
"- Section 56 of the WP Act, 1972.
Supra note 76, p-95.
248
reduced the area of their movement and retarded the reproductive capacity.
The largest single factor in the depletion of the wealth of animal life in nature
has been the "civilized man" operating directly through excessive commercial
hunting or more disastrously, indirectly through invading or destroying natural
habitats.^^'* The Schedule VII List III Entry 17 B of the Indian Constitution also
requires amendment. This Entry runs thus:
"17 B Protection of Wild animals and birds" and palpably, it does not
contain wild plants. Therefore, can be substituted as "17 B-Protection of Wild
Life". The term "Wildlife" will embrace all life forms that are wild. The
expression "Wildlife" is included in the Directive Principles of the State
policy^ ^^ under the 42"'' Constitutional Amendment Act, 1976 and also under
Clause (g) of Article 51-A Fundamental Duties.^^^ But as we have seen ante the
Entry 17 B in Seventh Schedule of the Constitution in list III i.e. Concurrent List
this expression "Wildlife" lack mention after all the Constitution is the basic law
of the land, the fountain of all other laws.
D. Prohibition of Causing Any Damages to Forests
Man himself is a primary source of injury to the forest. Partly he causes
direct injury and partly as a consequences of his activities. He contributes to so
much of the damages that his influence is felt directly or indirectly under all the
classes of injurious agencies.^^^ Indiscriminate felling of trees, lopping,
negligence in felling trees, girdling, tapings, burning, bark stripping or leaves
taking off from a tree, setting forests on fire are such activities included in which
the natural wealth has been destroyed and damaged. Forest fires which may be
intentional or accidental have been responsible for causing damages to the
forests. All these illegal and negligent activities of "civilized man" have
resulted into havoc on the Mother Earth. Environmentalists conception of the
ecological balance in nature is based on the fundamental concept that nature is
"a series of complex biotic-communities of which a man is an inter-
dependent part" and that "it should not be given to a part to trespass and
dimish the whole".^^® The Indian Forest Act, 1927 which Act classifies the
Indian Forests as reserved forests, village forests, protected forests and private

'" State ot Bihar Vs. Murad Ali Khan, AIR 1989 SC 4.

'" See Article 48-A of the Constitution of India.
'[" Ibid, see Article 51 A (g).
'" Shrivastava, M.B., ''Introduction to Forestry'\ Vikas Publishing House Pvt. Ltd, Delhi, 2002, p-195.
'^^ State of Bihar Vs. M.A. Khan, AIR 1989 SC 1
249
forests declares the damages caused to forests offences and prescribes
penalties. Every activity in reserved forest is prohibited unless permitted under
the provisions of that Act by the State Government. The encroachments by
damaging forests embraces a variety of human activities e.g. forest fire,
negligent felling, dragging any timber, lopping, girdling each of which may be a
special study in itself but all are related and have a common meeting ground as
far as damages to a forest are concerned.
a) Prohibition of Causing Fire in any Forest:- Section 26 (1) of the Indian
Forest Act declares that any person who sets fire to a reserved forest, or, in
contravention of any rules made by the state Government in this behalf, kindles
any fire or leaves any fire burning in such manner as to endanger a reserved
forest^^^ or who in a reserved forest - kindles, keeps or carries any fire except
at such seasons as the forest officer may notify in this behalf^^° shall be
punishable with imprisonment for a term which may extend to two years or with
fine which may extend to five thousand rupees or with both, in addition to such
compensation for damage done to the forest as the convicting court may direct
to be paid. It further lays down that whenever fire is caused willfully or by gross
negligence in a reserved forest, the State Government may notwithstanding that
any penalty has been inflicted under Section 26 (1) of the above Act, direct that
in such forest or any portion thereby the exercise of all rights of pasture or to
forest produce shall be suspended for such period as the State Government
thinks fit.^^^ Thus, the Act declares encroachment on account of forest fire in a
reserved forest as offence and provides penalties which include suspension of
all rights of pasture or to forest produce as the State Government shall decide.
This provision shall also be applicable to the Village Forests constituted as per
the Act. ^^2
Similarly, the Act declares damage by fire to protected forests also an
offence and states that any person who sets fire to protected forest or kindles a
fire without taking all reasonable precautions to prevent its spreading to any
tree reserved under Section 30 of the Act whether standing, fallen or felled or to

- Section 26 (l)(b) of Indian Forest Act, 1927.

'"' Section 26 (l)(c).
" ' Sub-Section (3) of Section 26.
' " Section 28.
250
say closed portion of such forest;^^^ leaves burning any fire kindled by him in
the vicinity of any such tree or closed portion^^'' shall be punishable with
imprisonment for a term which may extend to two years or with fine may extend
to five thousand rupees or with both. Whenever fire is caused willfully or by
gross negligence in a protected forest the State Government may,
notwithstanding that any penalty has been inflicted under Section 33 of the Act,
direct that in such forests or any portion thereof the exercise of any right of
pasture or to forest - produce shall be suspended for such period as the State
Government thinks fit.^^^
Thus, encroachment done by way of damage by fire to reserved forests,
village forests and protected forests is an offence. The comparison of the
punishment provided under Section 26 and Section 33 of the Indian Forest Act
shall reveal that the provisions of Section 33 of the Act provide punishment only
for the commission of offence of damage by fire inter-alia other offences, there
is no provision specifically given in that Section to award compensation for
damages caused in respect of protected forests.^^^ However, in all cases of
damage caused by fire to any class of forests, the State Government has been
empowered to suspend right of pasture or to forest produce notwithstanding the
punishment inflicted by the Court for such period as the State Government shall
decide. This penalty, however, can be inflicted only in the cases where fire is
caused willfully or by gross negligence in any class of forests. Therefore, the
right of pasture or to forest produce can only be suspended when the fire to
such forests is caused either willfully or by gross negligence. The expression
"Willfully" means something done intentionally or deliberately^^^ and the
expression "gross negligence" has been defined to mean a total lack of
proper care and attention in doing something^^^ or careless conduct. Accidental
or unintentional causes of forest fire is not encroachments within the meaning of
either Section 26(1) clauses (b) or (c) or Section 33 (d) or (e) of the Indian
Forest Act. The wording of both the sections as mentioned ante opens, thus
"Any person who sets fire" means the intentionally causing fire to such

' " Clause (d) of Section 33.

"•* Clause (e) of Section 33.
Sub-Section (2) of Section 33.
Emperor Vs. Hulianna, 8 Bom. LR 957
Supra note 61, p-1364.
Ibid, p-778.
251
forests. The expression "Kindles" has also been used in both these sections
which term has been defined to mean to use small pieces of dry wood for
lighting fires/^^ It means to create fire by rubbing dry wood. Again, if fire is set
to a forest as permitted under the rules made by the State Government or under
the permission of a forest officer it will not amount to an encroachment by way
of causing damage by fire. Thus, control burning of fire to a forest may be
permitted under the provision of the Indian Forest Act but it remains a debatable
and a scientific question to be resolved on the advice of expert. The fact
remains that forest fire whether naturally caused such as lightning which may
lead to occurrence of forest fires under dry condition; rolling stones may cause
sparking by friction and result Into forest fire, rubbing dry wood may also lead to
forest fire naturally due to windy and very dry conditions and loss of moisture or
accidentally and not intentionally which may be camp fires of trekkers, labour
camps or nomads etc. moving through forests due to bidi/cigar etc. or match
sticks, road side charcoal panniers fire or careless handling of acid by raisin
tapers in chirpine forests, the adverse effect of devastating forest fire reduces
thousand and thousand of forest covert to ashes. It causes damage to trees,
damage to regeneration, effect adversely the productivity of the forest and
conservation of soil and water, maintenance of ecological stability, amelioration
of climatic conditions of forests is reduced. It causes changes in the soil surface
and biological properties. It also effect wild animals which may be killed or
forced to migrate away from the area. Fire burnt forest are neither good to look
at nor do they remain a place worth visiting and their aesthetic value is
lessened but the Indian Forest Act provides penalties only in cases where the
forest fire is caused deliberately without permission or due to gross negligence
is proved. Therefore, it lacks provisions for preventive measures which it is
submitted must be inserted. The Act also gives discretion to the forest officer to
grant permission as he may notify seasons for forest fire^^° as nothing in the
Chapter IV of the Indian Forest Act is an offence when any act is done with the
permission in writing of the forest-officer.^^^ Since discretion is generally
misused, therefore, it is submitted discretionary power may be done away with.
It is further submitted that "criminal intention" or "gross negligence" is very

" ' Ibid, p-651.

"" Section 26 (l)(c).
''" Section 34 of the Act "Opening lines".
252
difficult to prove. An act is intentional if it exists in idea before it exists in fact,
the idea realizing itself in the fact because of the desire by ethic it is
accompanied. Where the Legislature makes an office dependent on proof of
intention, the Court must have proof of facts sufficient to justify it in coming to
the conclusion that the intention existed^'^^ No doubt one has usually to infer
intention from conduct, and one matter that has to be taken into account is the
probable effect of the conduct but that is never conclusive. As a general rule,
every sane man is presumed to intend the necessary or the natural and
probable consequences of his acts, and this presumption of law will prevail
unless from a consideration of all the evidence the Court entertains a
reasonable doubt whether such intention existed. This presumption, however, is
not conclusive nor alone sufficient to justify a conviction and should be
supplemented by other testimony. An accused must be judged to have the
intention by his proved acts. The burden of proving a guilty intention lies upon
the prosecution where the intent is expressly stated as part of the definition of
the crime. Similarly "Negligence" is the failure to use the amount of care
which, under the special circumstances of the case, a reasonable man would
use. Since no absolute standard of care can be set up, "negligence" can not
be precisely defined in relation to a particular act of a person irrespective of the
dictionary meaning as discussed ante. In determining the amount of care which
it is negligence to omit, custom and usage, both particular and general, may be
considered. Negligence like care, has degrees of care involved.^''^ The Act has
used expression "gross" "negligence".^'^'* Negligence in common parlance
may fall short of negligence at law. At law, negligence and duty go together. It
has been in a Lahore case^^^ that a person is to set fire to a thing if he put
match to it or sets it on fire directly and not in that case where fire directly and
not in that case where fire caught at the result of the indirect consequence of
his act. Where a servant kindled fire in his masters' garden but the same spread
to the unclassed forest and then to a reserved forest, he can not be held guilty
for setting fire to the forest.^''^ It has even further held that having in possession

Ratan Lai Dhiraj Lai, "Indian Penal Code", Wadhwa and Co. Pvt. Ltd., Nagpur, 1987, p-(iv).
Sinha, Harimohan, Narula, Dhiraj Pal, ''Legal Dictionary", Pioneer Publications, 12, U.B. Bunglow
Road, Delhi-7, 1982, p-129.
Section 26 (3) and Section 33 (2) of the Indian Forest Act, 1927.
AIR 1916Lah70: 17CrLJ458.
1916 Punjab Reports (Criminal) No.30: 17CrLJ458.
253
a flint and steel within forest limits does not constitute an offence under Section
26(1 (c) of the Act.^" Clause (c) of Section 26 (1) of the Act prohibits kindling or
keeping, carrying any fire except such seasons as the forest officer may notify
in this behalf. Though the view of the court is erroneous because the fire if
caused to the forest by carrying the flint and steel of the accused he could have
been held guilty. Intentional causes of forest fire are those in which there is a
clear intention to start forest fires and includes control burning in which fire
prone forests are set on fire in order to burn all the combustible material before
the onset of the dry season, inducement of growth of grass by setting forest on
fire by local people, miscreants may set forests on fire either for fun or setting
scores with forest department, forests may be set on fire to hide the stumps of
illicit fellings.^''^ But the losses by forest fires are enormous and irreparable.
Therefore, it is submitted that the existing provisions of the Act are not sufficient
both for prevention no law for this exists and punishments in which re-drafting of
the existing provision is required in order to curb the encroachment by damage
to forest setting or kindling on fire.
b) Prohibition of Causing Fire in Sanctuary etc.:- The Wildlife
(Protection) Act, 1972 also prohibits causing fire in Sanctuary or National Parks
or Conservation reserve and declares that no person shall set fire to a
sanctuary, or kindle any fire, or leave any fire burning in a sanctuary in such
manner as to endanger such sanctuary.^^^ This provision is also applicable to
National Park^^° to conservation reserve,^^^ to community reserve,^^^ and to the
sanctuaries and National Parks constituted and declared by the Central Govt.^®^
It is significant to mention that the Wildlife (Protection) Act has been amended
in the year 2003 and certain new provisions have been inserted in order to
involve people's participation meaningful and lawful in protection of Wildlife viz.
The State Government has been empowered to declare any area owned by it
particularly the areas which link one protected area with another area as a
conservation reserve for protecting landscapes seascapes, flora and fauna and

Emperor Vs. Ranchod Khushal, 4 Bom LR 935.

Negi S.S., "Himalyan Forests and Forestry", Indus Publishing Company, FS-5, Tagore Garden,
New Delhi-27, 2"'' Edn., 2000, p-209.
Section 30 of the Wildlife (Protection) Act, 1972.
Section 35 Sub-Section 8,
Section 36 (A)(2).
Section 36 (c)(2).
Section 38 (I).
254
their habitat.^^'* The State Government for this purpose shall declare such
conservation reserve with the consultations of local communities of the area
and shall constitute conservation reserve management committee to advise the
Chief Warden Wildlife to conserve manage and maintain such conservation
reserve consisting of a representative of the Forest Deptt. or Wildlife
Department as a Member Secretary, one representative of each Village
Panchayat of the area three representative of non - governmental
organizations working in the field of Wildlife conservation and one
representative each from the Department of Agriculture and Animal
Husbandry.^^^ Similarly, the State has been empowered where the community
or an individual has volunteered to conserve wildlife and its habitat, to declare
any private or community land not comprised in a National Park, Sanctuary or
Conservation reserve, as a community reserve for protecting flora- fauna and
traditional or cultural conservation values and practices.^^^ The State
Government has further been empowered to constitute a community reserve
management committee consisting of five representatives nominated by the
Village Panchayat or by member of gram sabha and one representative of the
State Forest or Wildlife Department under whose jurisdiction the community
reserve is located.^^^ However, the State Government is competent to declare
any area to be a game reserve and hunting of any wildlife shall be permitted in
such reserve except under and in accordance with a license issued under the
provisions of Section 36 of Wildlife (Protection) Act, 1972, but does not contain
any provision of prohibition of causing fire to such a game reserve. It does
prohibit hunting of any wildlife except under and in accordance with a license
issued by the Chief Warden or the authorized officer. It is submitted that the
expression "any area"^^® in this section has wide import. It may or may not be
within the protected area. Therefore, this Section of the Act deserves to be re-
drafted and the provisions of Section 30 relating to prohibition of causing fire to
such game reserve are also made applicable to avoid damage not only to such

Section 36 A, (Inserted by Act 16 of 2003 in the WPA, 1972).

Section 36 B, (Inserted by Act, ibid).
Section 36 C. (Inserted by Act, ibid).
Section 36 D, (Inserted by the Act ibid).
Section 36 runs: "Declaration of game reserve: (1) The State Government may by notification,
declare any area to be a game reserve (2) No hunting of any wildlife shall be permitted in such
reserve except under and in accordance with a licence issued under this section by the Chief Wildlife
Warden or the authorized officer".
255
game reserve but to other forest areas too. This section appears undesirable
not only in that its wording lack application of the other prohibition such as
clearing of the area, destruction or damages by way of any encroachment in the
game reserve but do we require game reserve any more when our flora and
fauna is diminishing. More so, in relation to forest fire, if the fire is set in a game
reserve it will destroy not only game reserve but may damage other areas too.
The Wildlife (Protection) Act, 1972 declares causing fire to be an encroachment
and prescribes more severe punishment^®^ for the same as compared to the
punishment given in the Indian Forest Act, 1927. In addition to the punishment
that the trying court may inflict the former Act also provides the Court to order
that any captive animal, wild animal, animal article, trophy, etc. any derivative
thereof and any tool, trap vessel or weapon etc. used in commission of the
encroachment may be forfeited to the State Government any license or permit
held by such person under the provisions of the Act may be cancelled^^° and
also the person convicted for an offence under the WPA holding a license under
Arms Act, 1959 for possession of any arm with which an offence against WPA
has been committed shall also be cancelled and that such person shall not be
eligible for a license under the Arms Act for a period of five years from the date
of conviction.^^^ The WPA also provides that whoever attempts to contravene or
abets the contravention of, any of the provisions of the WPA, 1972 or any rule
or order made there under shall be deemed to have contravened that provision
or rule or order as the case may be,^^^ therefore, is punishable for that offence
under Section 51 of the WPA, 1972. However, attempts and abetment of
encroachments on forest has not been made punishable in the Indian Forest
Act, 1927 which provision requires to be inserted.

c) Ecopyrology:- Like rain and wind, fire too can benefit and is being used
as a tool for forest management. A forest fire makes plants taller and animal
healthier. Forests are being deliberately torched to enrich the land and ecology.
Ecopyrology is a science which deals with starting forest fires - asserts that
eliminating fire from ecosystem is like shutting out wind or rain. Experts
consider weather, vegetation and terrain for fire to burn safely and meet

'*" Section 51.

"" Sub-Section (2) of Section 51.
'"' Sub-Section (4) of Section 51.
'•'- Section 52.
256
ecological goal.^^^ However, as already submitted this is a scientific question to
be debated at length and requires further research as forest fires have risks to
the humanity as a whole. Controlled forest fire may be beneficial but it requires,
then, adequate and clear legislation to this effect so that forests are saved
including wildlife for the sake of humanity and all creation on Earth,
d) Other Damages to Forest:- The Indian Forest Act, 1927 prohibits
damages to forests, and declares damages as offence being encroachment on
forests. The expression "damages" have more than one meaning. It is defined
to mean to harm or spoil something.^^'^ It is defined to mean to injure, partly
destroy or reduce value of property, real or personal to impair the credit,
standing or reputation of a person.^^^ Damage connotes a genus while
"deterioration" and "destruction" connotes two species.^^^ However, we are
concerned with the damage(s) caused to the forests which are encroachments
and hence offences declared under the Central Legislations relating to forests
and hither-fore the damage, to forest by forest fire has been discussed. Chapter
II of the Indian Forest Act, 1927 relating to reserved forests and Section 26(1)
clause (e) prohibits any damage by negligence in felling any tree or cutting or
dragging any timber in a reserved forest and declares it punishable. Similarly,
clause (f) of Section 26(1) of the Act declares that who in a reserved forest fells,
girdles, lops or burn any tree or strips off the bark or leaves from or otherwise
damages the same shall be an offence and shall be punishable. In order to
constitute an offence under clause (e) and (f) of Section 26(1) of the Act, the
ingredient for the guilt is that the land must be validly notified under Section 20
of the Act and in such land the act of felling any tree or cutting or dragging any
timber negligently; or felling, girdling, lopping or burning or stripping of the bark
or leaves from or otherwise damage is committed otherwise no punishment
under these sub-clauses can be awarded. Under clause (e) of Section 26(1) of
the Act "negligence" in felling or cutting or dragging timber is a necessary
ingredient to be proved. The expression "negligence" has been already
defined ante and is to be proved accordingly. The term "felling" means to cut

" ' Supra note 106, p-38.

'"'* See Cambridge International Dictionary of English 1996, p-344.
' " Supra note 174, p-49.
'"" Supra note 194, p-195.
257
 down a tree^^'' and "cutting" tree means to remove something from a tree like
branches^^^ etc. The expression "dragging" means to move a tree by pulling it
along the surface of a forest. In each of doing these acts negligence must be
necessarily involved i.e. negligence in felling any tree, cutting or dragging any
timber. The expression "timber" has been defined in the Act to include trees
when they have been fallen or have been felled and all wood whether cut up on
fashioned or hollowed out for any purpose or not;^^^ and "tree" includes palms,
bamboos, skimps, brush-wood and canes.^°° Therefore, in cases where any
one who in a reserved forest causes any damage i.e. harm or spoil such forest
by negligence in cutting down any tree or removing any thing away from a tree
or by moving tree by pulling it along the ground or surface of such forest shall
be guilty of encroachment by causing harm or spoiling the forest within the
meaning of clause (e) of Section 26(1) of the Act. The expression "girdles"
means to surrounds something around something.^°^ It means if any one
surrounds something around the tree that is an encroachment as causing harm
or spoiling the tree. Displaying hoarding billboard a large board used for
advertisement on the tree shall be an encroachnient within the meaning of
clause (f) of the Section 26(1) of the Act. The expression "lops" means to cut
branches etc. of a tree or to remove any part of tree by cutting.^°^ The makers
of the Indian Forest Act, 1927 has further added to make it amply clear that any
damage to forest shall be encroachment, therefore, they have used various
expressions having thin differences in their meaning but actual tall difference in
practice. Therefore, the clause (f) of this section 26 (1) embodies terms "burns
any tree" or "strips off the bark or leaves from' or "otherwise damage" the
same. The expression "otherwise damage" the same includes any type of
harm or spoiling caused to a reserved forest and has the widest possible import
of activities to cause harm or spoil such forest. In cases under clause (f) of this
section of the Indian Forest Act, the duty of the prosecution is to establish that
some act prohibited has been committed, that is to say, trees have been cut
down, or something has been surrounded or tied up around the tree or some

Supra note 61, p-428.

:o8 Ibid, p-289.
'"'' Sub-Section (6) of Section 2 of the Indian Forest Act, 1927.
-"" Sub-Section (7) of Section 2.
-"' Supra note 61, p-499.
-"- Ibid, p-697.
258
part of tree has been removed or tree burning has been caused or bark of the
tree has been stripped off or leaves from tree has been taken or any other kind
or harm or spoiling has been caused in a reserved forest. The burden lies on
the prosecution to prove the guilt beyond reasonable doubt irrespective of the
fact that whether the accused has given reasonable or satisfactory explanation
or not. The want of such explanation does not relieve the prosecution to prove
that the logs constituting Government property had been illegally removed from
the forest. ^°^ For proving the guilt of the accused it is necessary to establish not
only that the accused did the act mentioned in the Section 26(1 )(f) but also that
they are not entitled to those acts because a notification has already been
issued and place of occurrence fell under the limits specified in the said
notification.^°'* In the absence of the proof of such notification issued validly
under Section 20 of the Act, a conviction for the encroachment falling under
clause (e) or (f) of Section 26(1) of the Act can not be maintained.^°^ Felling
trees in a reserved forest^°^ or removal thereof are encroachment under clause
(ff°^ of Section 26(1) of the Act. Moving or pulling any tree or timber felling or
cutting tree or timber is an encroachment causing damage to a reserved forest
within the meaning of clause (e) of this Section of the Act. The provisions of
clauses (e) and (f) of Section 26(1) of the Act are applicable to a Village Forest
if the State Government makes rules to regulate management of Village
Forests.^°® And such encroachments made as supra are punishable with
imprisonment for a term which may extend to two years, or with fine which may
extend to five thousand rupees or with both. In addition the convicting Court
may direct compensation to be paid for the damage done to reserved forest or
Village Forest. Section 33 clauses (a) and (f) of the Indian Forest Act, 1927
deals with the encroachment made to protected forest in relation to other
damages done to a protected forest.^°^ The State Government has been
empowered to declare by notification in official gazette any tree or class of trees

203
AIR 1954 Orissa 16: 1953 CR LJ 1895.
204
(1966) 32 Cut LT 299.
205
AIR 1951 Pat 380.
AIR 1918 ALL351.
(1968) 10 Orissa J.D. 152,
Section 28 of the Indian Forest Act, 1927.
Clause (a) of Section 33 runs: "fells, girdles, lops, taps or burns any tree reserved under Section 30 or
strips off the bark or leaves from or otherwise damages any such tree". Clause (0 runs as fells any
tree or drags as any timber so as to damage any tree in a reserved as aforesaid".
259
in a protected forest to be reserved from a date fixed by the notification;^^" and
also declare that any portion of such forest specified in the notification shall be
closed for such term, not exceeding thirty years and that the rights of private
persons if any over such portion shall be suspended during such term of
period.^" The State Government has also given rule making power to regulate,
inter-alia, the protection and management of any portion of a forest closed
under Section 30 of the Act.^^^ Therefore, there are three types of
encroachments causing damages to such protected forest contemplated under
Section 33 of the Act and are prohibited. Two types of encroachments are those
contained and prohibited under clause (a) and (f), the third type of
encroachment is by way of infringing^^^ any rule made under Section 32 (k) of
the Act. In order to constitute an offence under Section 33 (a) or (f) or (h) first of
all the notification to have been issued under Section 29 of the Act is pre-
requisite. Under Section 29 of the Act only those waste land or forest land may
be declared protected forest which is not included in any reserved forest and
over which the Government has propriety rights of which is the property of the
Government; and out of this land a notification under Section 30 is to be validly
issued. The power conferred on the State Government to issue a notification to
constitute a protected forest is restricted to such lands as supra and an accused
thus can not be convicted under sub-section (1)(a) of Section 33 of the Act for
the land which was not waste or forest land but which was a part of his
occupancy holding.^^^ For the charge under Section 33(1) (a) & (f) the existence
of notification under Section 29 and 30 are necessary.^^^ On the other hand, for
the charge under Section 33 (1) (h) valid rules must have been made by the
State Government in addition to the notifications issued under Section 29 and
30 of the Act. Thus, in a protected forest damage to reserved tree or reserved
portion has been prohibited whereas in a reserved forest and village forest any
damage to the forest area as a whole has been prohibited. The Wildlife
(Protection) Act, 1972 also prohibits encroachments by any damages caused to
protected areas viz, national parks, sanctuaries, conservation reserve or

Clause (a) of Section 30.

Clause (b) of Section 30.
Clause (k) of Section 32.
Clause (h) of Section 33 runs "Infringes any rule made under Section 32".
7 Bom LR 462 (DB).
.MR 1960 Pat 213; I960 BUR 12: 1960 CrLJ 634.
260
community reserve notified under Section 18, 35, 36-A and 36-C of this
legislation. In order to avoid any damage entry of any person to a sanctuary or
national parks notified by the State Government has been restricted.^^^ The
entry to these areas are allowed under a permit granted by the Chief Wildlife
Warden for specific purpose.^^^ A permit is issued subject to certain conditions
and payment of fees. The idea in imposing restriction is to avoid any damage to
these protected areas. No person shall destroy, exploit or remove any wild life
including forest produce or destroy or damage or divert the habitat of any wild
animals by any act whatsoever or divert, stop or enhance the flow of water into
or outside the sanctuary except under and in accordance with a permit granted
by the Chief Wildlife Warden. Such permit can only be granted with the prior
approval of State Government if it is necessary for the improvement and
betterment of wildlife.^^® Forest Produce, however, can be removed from a
sanctuary for bonafide personal use by the people living in and around such
sanctuary.^^^ The Act empowers any officer not below the rank of an Assistant
Conservator of Forests to evict any person from a sanctuary or national park in
addition to any penalty inflicted for violation of any other provision of the WP
Act. The Act declares that any one who contravenes any provisions of the Act
or any rule or order made there under or who commits a breach of any of
conditions of any licence or permit granted under the Act, shall be committing
encroachment against the provisions of the Act and shall be, on conviction,
punishable with imprisonment for a term which may extend to three years or
with fine which may extend to twenty five thousand rupees or with both.^^°
Altering boundaries of sanctuary or national park has also been declared an
offence^^^ because it shall damage such sanctuary or national park and has
been declared punishable with imprisonment for a term not less than three
years but may extend to seven years and also with fine which shall not be less
than ten thousand rupees. Thus, in this case both fine and imprisonment are to
be imposed and minimum limits have been prescribed. Attempts and abetment
of the contravention of any provision of the Act are also declared to be deemed

-'" Section 27 read with Section 35 (8) of the Wildlife Protection Act, 1972.
"' Section 28.
;'* Section 29.
"'' Proviso to Section 29.
""" Section 51.
""' First Proviso to Section 51.
261
to have contravened that provision or rule or order as the case may be and
made punishable accordingly. More severe punishment has been laid down for
second or subsequent offence of the nature mentioned in sub-section (1) of
Section 51 of WPA. Thus, it is evident that Indian Forest Act, 1927 and the
Wildlife (Protection) Act, 1972 prohibit any damage to the classes of forests as
mentioned ante but the Indian forests have been damaged in more ways than
one. Therefore, law has to be made simple and specific so that commoner may
understand it both for compliance and implementation.
E. Prohibition of Un-Authorised Uses of Forests
The Indian Forests have been used and exploited un-authorisedly in
various ways despite the prohibitions of various such activities. Indian Forest
Act under Section 26 (1)^^^ declares the following acts offences unless
permitted.^^'^ (i) Trespass in a reserved forest or (ii) Permitting cattle to trespass
in reserved forest or (iii) Pasturing cattle in reserved forest; This prohibition
applies to a Village Forest constituted under Section 28 of the Act as well
because Village Forest is basically constituted of a reserved forest; Similarly,
the Act prohibits from a date fixed by notification to use land for building, for
herding cattle or for any other purpose in any land in protected forest which has
been declared closed.^^'' The State Government has been empowered to make
rules for the use of protected forest^^^ and contravention of notification under
section 30 or of rule so made under section 32 by the State Government shall
be encroachment and punishable under Section 33 of the Act.^^^ Therefore
unauthorise cutting of grass, or pasturing or permitting cattle to damage any
reserved tree or doing any other activity in violation of rule made by the State
Government shall be encroachment in a protected forest. The expression
"trespass" may be defined when a person enters forest forcibly without due
warrant of law. Therefore, the Indian Forest Act 1927 explicitly declares that
trespassing both by a person or permitting cattle trespassing is an
encroachment in a reserved forest and also in a village forest and is punishable.
The expression "cattle" has been defined in interpretation clause^^^ to mean

Clause (d) of Section 26 (I) of the Indian Forest Act, 1927.

Sub-Section (2).
Section 30.
Section 32.
Clause (g) and clause (h) of Section 30.
Section 2(1).
262
and includes elephants, camels, buffaloes, horses, mares, geldings, ponies,
colts, fillies, mules, asses, pigs, rams, ewes, sheep, lambs, goats and kids.
The State Government by a notification from date fixed in the notification
may close any portion and the rights of private persons if any over such portion
shall be suspended during such term not exceeding thirty years in the portion
so closed in the protected forest^^® and, therefore, trespassing in protected
forest shall be an encroachment on such forest.
a) Cattle Trespass:- The Indian Forest Act prohibits cattle trespass in a
reserved forests and a closed area of a protected forest. It contemplates a
person guilty of an encroachment of cattle trespass who permits the same in
such forests. It explicitly makes the Cattle Trespass Act, 1871 applicable.^^^
Cattle Trespassing in a reserved forest or in any portion of a protected forest
which has been lawfully closed to grazing shall be deemed to be cattle doing
damages to a public plantation within the meaning of Section 11 of the Cattle
Trespassing Act 1871.^^° The Cattle Trespass Act 1871 had its objectives
primarily to consolidate the law relating to cattle trespass, which, till before the
Act, was scattered in three Acts-3 of 1857, 5 of 1860 and 22 of 1861. The
opportunity was taken to improve the arrangement and the wording of the law,
to provide that damages by trespass is liable to be fined. It is in the nature of
the cattle to stray if not kept confined and to cause damage when they stray,
and the owners of cattle are therefore legally bound not to keep them straying
on the fields of others. Even in the ancient codes one finds reference to such
duties on the part of the owners of cattle. In the code of Manual and the twelve
tables of Roine {Table VIII, clause (vii)} special rules for compensation for
damage done to crops are to be found.^^^ Therefore, the Indian Forest Act,
1927, has made Section 11 of Cattle Trespass Act applicable in view of its
provisions that give statutory expression to the need for effectively dealing with
the owners of trespassing cattle and damaging the valuable forests.^^^ Under

Section 30 (b).
See Chapter X of the Indian Forest Act. 1927.
Section 70.
Singh v., '"Cattle Trespass Act", Law Book Company, Allahabad, 1990, p-2.
Section 11 runs, thus:- "Cattle damaging public roads, canals and embankments:- Persons in charge
of public roads, pleasure-grounds, plantations, canals, drainage-works, bankments and like and
officers of police, may seize or cause to be seized any cattle doing damage to such roads, grounds,
plantations, canals, drainage-works, embankments, such roads, canals, drainage-works, or
263
section 11 of the Cattle trespass Act, 1871 only cattle damaging public
plantations etc. become liable to be seized and impounded but it has been held
that under said section seizer by a Forest officer of cattle found straying in a
reserved forest is legal even though no actual damage has been caused.^^^
For the purpose of seizing and impounding cattle which might have trespassed
into a Government Forest, a Forest Officer has under Section 70, the same
powers that of a Police officer. He can follow the encroaching cattle upto any
distance from the area into which the trespass might have been committed by
the cattle in order to seize them and take them to the cattle pound for
impounding them. And in doing so, if he is forcibly opposed, the person so
opposing becomes liable to be punished under Section 24 of the Cattle
Trespass Act^^^ and declares that whoever forcibly opposes the lawful seizure
of cattle under the Act or rescues the same from the pound or the person taking
them to the pound shall be punishable with imprisonment upto 6 months or fine
upto Rs. 500/- or both. The use of the words "or found straying there-on" in
Section 11 of the Cattle Trespass Act, 1871 clearly indicate that even mere
straying about of cattle in forests unattended by any body may render them
liable to seizure irrespective of the fact whether any damage has been caused
by such straying or not. Cattle unattended by anybody may, at any time, cause
damage;^^^ and hence without waiting to see that damage is actually caused,
the authorities may seize them and impound them. Similarly, the word "shall"
in the second paragraph of Section 11 is also significant and the legislature
appears to have purposely used it instead of the word "may". It suggests that
persons seizing cattle under Section 11 must impound them or get them
impounded in the nearest cattle pound and they can not release them on any
such ground like payment of compensation by the owner of the cattle for
damage caused by them. It would indeed be against public policy to permit
such persons to release the seized cattle at their own sweet will. Scale of fine
and penalty to be levied on the cattle impounded is to be fixed by the State
Government from time to time by publishing it in the local gazette under the
provision of Section 12 of Cattle Trespass Act, 1871. But Section 71 of the

embankments or found straying thereon and shall them or cause them to be sent within twenty-four
hours to the nearest pound."
-'^ Queen Empress Vs. Balaji Laxman ILR 22 Bom. 933 Cr. R.35 of 1897.
-"•' Muni Abdul Raham, AIR 1955 N.V.C. Bom. 5542.
--' AIR 1930 Oudh 250:126 I.e. 497: 31 Cr.L.J. 10157 O.W.N. 461.
264
Indian Forest Act 1927 empowers the State Government to alter fine fixed
under that Act and may levy a different scale of fine subject to the maxima
prescribed in the Cattle Trespass Act under Section 12 the Indian Forest Act
has adopted the same maxima. It is important to note that this fine will be in
addition to the penalty for the offence provided for under Section 26 (d) for the
reserved forest and 33 (g) for protected forest or the compounding fees that
may be levied if the offence is compounded. In all cases of trespass in forest,
the detecting officials should seize the cattle involved in the offence, impounded
them and submit the pound receipt in support there of alongwith other records.
The use of the word "fine" in Section 71 of the Act is not appropriate. It should
have instead been described as "fee" because it denotes the fee which the
pound - keeper charges for keeping the cattle in the pound. It is not in the
nature of any punishment or penalty imposed by any court of law and as such
the persons who pay the fine levied under this section are not convicted of any
offence. It follows, therefore, that levy of fine under this section would not bar
the prosecution for the trespass by cattle of the owner on whom such fine is
levied. It has been held that a levy of pound fee under Section 12 of the Cattle
Trespass Act, 1871 in respect of an offence allowing cattle to trespass in a
reserved forest is not punishment and does not therefore bar for a prosecution
under Section 26 (1) (d) of the Indian Forest Act.^^^ Therefore, both proceeding
can be undertaken simultaneously.
b) Permitting Cattle to Trespass:- In the case of cattle trespassing into
Government reserved forest unless licensed, the master cannot be held
criminally liable for the acts of his grazier in taking his cattle into such forest
unless he permits the cattle to so graze by some overt acts or by some
negligent omission.^^'^ If the permission to graze the cattle given by the master
to his servant has not been established by the prosecution, in such cases the
master can not be convicted as held by Nagpur High Court.^^® An offence under
Section 26(1) (d) of the Indian Forest Act, therefore, does not depend upon the
presence or absence of the owner of cattle. It turns on the question whether the
owner did or did not permit his cattle to trespass the answer thereto depending
on circumstances of each case. Where the cattle of any owner are found

-'" Emperor Vs. Gha2i-19 P.R. 1885 (Cr.) at p-42.

- " Emperor Vs. Mohammed Khan A.I.R. 1938; Nag. 365-I.L.R. 1939, Nag. 226.
-'' AIR 1937 Nag 169 and A.I.R. 1930, Nag. 64.
265
trespassing within a reserved forest in the neighborhood of his house, the
presumption is that he permitted the trespass though it may be rebutted.^^^ A
licensee under the Act would be liable criminally for every act of his agent done
in carrying on the business delegated to him if there is a breach of the condition
of the license of any rule there under. If the owner of some cattle not being a
licensee entrusts them to a grazier, who takes them into a forest reserved to
afford them better pasturing, the owner is not criminally liable but is only civilly
liable. The words of Section 26(1) (d) apply only to the person who does any of
the acts mentioned therein.^^° Where the accused send some cattle for grazing
without necessary permit, the prosecution must prove in order to sustain a
conviction under Section 26(1 )(d) that the cattle which were not covered by
permits were accompanied by the cattle of the same owners duly covered by
permits since it might then have been shown that the action of the owner in
sending cattle not covered by permits into forest would raise the presumption
that he intended that all the cattle should graze in Government forest.^^^ Under
Section 12 of the Indian Forest Act, 1927 in case of a claim to rights of a
pasture, the forest Settlement Officer has been given powers to admit or reject
the claims preferred by the persons concerned. If such rights are admitted, the
Settlement Officer shall pass such orders as will ensure the continuance of the
exercise of rights of pasture so admitted and for the same, the forest Settlement
Officer may also record the description, extent, season and area for the
exercise of the rights of the pasture in a reserved forest. Trespass is not an
offence in a protected forest. According to Section 33(1 )(g) of the Act permitting
Cattle to damage any tree which has been declared by notification in the official
gazette to be a reserved tree from a date fixed by the notification shall be an
encroachment and as such punishable with imprisonment upto two years or
with fine upto Rs.5000/- or with both. The State Government has been
empowered to make rules regulating the cutting of grass and pasturing of cattle
in protected forest.^*^ If such rules are infringed the provision for punishment
under Section 33(h) of the Act is attracted. For a conviction to be legal under
Section 33(1 )(g), a notification should have been issued under Section 30 and

;"' Crown Vs. Somandar, 16 PR 1909(Cr.);l I Cr. LJ. 67:41.C.866.

"^" Saiyyad Rahim Vs. Emperor, AIR Nag. 2.
-" Emperor Vs. Waman Rao, AIR 1937 Nag. 169 at p-69,38 Cr. LJ 588; ILR 1937Nag-536.
"^" Section 32 Clause (i) of the Indian Forest Act, 1927.
266
such notification should also have mentioned the date from which it would
become effective. The notification is also to have to be proved in a court of law.
Similarly, for a conviction to be legal under Section 33(1 )(h) the rules under
Section 32, should have been made and date form which the rules would
become effective should have been fixed in advance. The rules are also
required to be proved in the court of law.
c) Prohibitions of Unauthorized Uses of Protected Areas:- The wildlife
(Protection) Act, 1972 imposes restriction on entry in a Sanctuary^"^ and the
entry may be permitted only for specific purposes^'*'* that too under certain
conditions and on payment of prescribed fees.^^^ Similarly, it imposes
prohibition of entry into sanctuary with weapon except with the previous
permission in writing of the Chief Wildlife Warden or the authorized officer.^'*^
The Chief Wildlife Warden has been declared an authority for the control
management and maintenance of all sanctuaries and for this purpose within the
limits of any sanctuary, he may regulate, control or prohibit, in keeping in view
the interests of wildlife, the grazing or movement of live-stock.^'*^ Even
immunization of live-stock against communicable diseases kept in or within five
kilometers of a sanctuary has been made mandatory^^^ and no person is
permitted to take or cause to be taken or grazed any live-stock in a sanctuary
without getting It immunized.^"^ This provision has recently been specifically
inserted to save the wildlife from the communicable diseases prevailing in live-
stock. Similarly, grazing of any live-stock is not permitted in a National-Park and
entry of any cattle to such National Park has been prohibited except where such
live stock is used as a vehicle by a person authorized to enter such National
park.^^° The provisions of Section 33-A, inter-alla, are made applicable to
national parks also^^' so that wildlife in national parks is saved against the
communicable diseases. These prohibitions regarding unauthorized uses are
equally applicable to the Sanctuaries or National Parks declared by the Central

Section 27 of the WPA, 1972.

Section 28.
Sub-Section (2) of Section 28.
;4(i
Section 3 I.
247
Section 33, Clause (d).
'* Section 33-A, (Inserted on 19-12-2000 vide S.O. 67 (E) dated 19"" Dec. 2k).
249
Sub-Section (2) of Section 33-A.
250
Sub-Section (7) of Section 35.
251
Sub-Section (8) of Section 35.
267
Government^^^ and penalties have been prescribed for the contravention of
these provision under section 51 of the Wildlife (Protection) Act 1972 which
declares that any person who contravenes any provision of the Act or rule or
order made there under or who commits a breach of any of the condition of any
license or permit granted under the Act shall be guilty of an offence against the
Act and shall on conviction, be punishable with imprisonment upto three years
or with fine upto twenty five thousand or with both.
4. INDIAN PENAL CODE AND ENCROACHMENTS ON FORESTS
The Indian Penal Code is equally applicable to the forest cases
throughout India, even though there is a special forest laws applicable to
forests. However, either of the two enactments is to be selected to deal with the
forest encroachments since there can not be two punishments for one and the
same offence.
A. Reasons for Application of Penal Code
As a rule, it is more convenient to apply the provisions of Indian Forest
Act to forest encroachments resulting into forest offences but recourse can be
taken to the Indian Penal Code in view of the insufficiency of the provisions
concerning forest protection and forest administration in general and
encroachments on forests in particular. Therefore, it becomes quite often
necessary to invoke the provisions of the Indian Penal Code. For example, it
will be too difficult to apply the provisions of Indian Forest Act to certain
encroachments like felling of trees illicitly and taking the timber clandestine.
a) Seriousness of Encroachment:- In the case of more serious
encroachments involving forest mafias in taking of forest produce of great
value, or setting forest on fire resulting heavy losses etc. it is better to apply the
provisions of Indian Penal Code which prescribes heavier punishments to these
encroachments though Forest Act may also be applicable to these
encroachments.
b) Abetment of Encroachment:- There is no provision in the Indian Forest
Act for punishment of abetment of encroachments on forests. Therefore,
abetment of the encroachments is only to be charged under the I.P.C.
c) Connivance of Official:- Forest Act does not contain provisions to deal
with the encroachments on forests which are caused in connivance of the forest

Section 38.
268
officials such as criminal misappropriation, breach of trust, taking illegal
gratification by the departmental officers. Hence, certain provisions of the Indian
Penal Code have to be applied in matters relating to these. The encroachments
on forests in India as we have seen are "Forest Offences" as defined for the
purpose of the Indian Forest Act, 1927 means an offence punishable under that
Act or under any rule made thereunder.^^^ However, under the Wildlife
(Protection) Act, 1972 though not specifically defined, the encroachment on
wildlife means contravention of any domestic or international law concerning
wildlife whether it is poaching for food or for fun or by killing to supply an illegal
wildlife trade or by possessing illegal material or smuggling across boarders.
The Indian Forest Act has provided one general limit of punishment for all forest
offences that is two years' imprisonment or fine upto Rs. 5000/- or both as a
maximum. In the Indian Forest Act, 1878 it was expressly stated that
"nothing in tliat Act shall be deemed to prevent any person from
being prosecuted under any other law for any act or omission which
constitutes an offence against that Act, or the rule made there under; or
from being liable under such other law to any higher punishment than that
provided by the rules made under that Act, provided that no person shall
be punished twice for the same offence"^^'*
but this provision does not exist in the Forest Act of 1927. However, a
similar provision does exist in the Indian Wildlife (Protection) Act, 1972.^^^
d) Disadvantage of Special Law:- The existence of a special law does not
(in the absence of express provision) alter the general criminal law, still less
does it render excusable acts done in connection with forest produce or the
forest estate itself, which are offences under the Penal Code, though not
expressly mentioned in the Forest Act.^^^ In fact, it is easy to the common man
to have the specific kinds of encroachments on Forests stated in the Forest Act
so that then the most ignorant person may know what acts must be avoided in a
forest without having to reason legality and understand the process of the
general penal law. Secondly, it is easy to have the forest encroachments and
their prohibitions grouped under one or two general heads so that a suitable

Section 2 (3) of the Indian Forest Act, 1927.

Section 66 of Indian Forest Act, 1878.
Section 56 of Wildlife (Protection) Act, 1972 runs, thus, "Nothing in this Act shall be deemed to
prevent any person from being prosecuted under any other law for the time being in force, for any act
or omission which constitutes an offence against this Act or from being liable under such other law
to any higher punishment or penalty than that provided by this Act.
Baden Powell, B.H., '"Manual of Jurisprudence for Forest Officer", Natraj Publishers, Dehradun,
2002, p-279.
269
standard and uniform punishment may be applied. Further, such
encroachments may be dealt with and disposed of by a summary procedure.^^^
But there are encroachments on forests specially affecting forests which either
do not come at all under the Penal Code or could only be termed under special
law. As an example carrying fire in a reserved forest except at a season
permitted by the forest officer, it would be difficult to bring this under any section
of the Penal Code. On the other hand, there are some encroachments so
clearly coming under the Penal code, for example, any gross felling of timber
trees, can obviously more conveniently be tried under the Penal Code.
Receiving stolen forest produce knowing it to be stolen from a forest is
equivalent to "receiving stolen property l<nowing it to be stolen" without any
need of explanation or argument and hence, punishable under penal code.
B. Application of Penal Code in Forest Cases
Ordinary encroachments of mischief, trespass, petty theft of timber and
forest material in transit are prosecuted under the Forest Act and rules under
Section 26, Section 33, Section 42 and Section 52 of the Indian Forest Act,
1927 and under Section 51, Section 52 and Section 53 and 54 of the Wildlife
(Protection) Act, 1972. These provisions are suffice where no serious criminality
is involved and where the limited scale of punishment is contemplated but there
are encroachments which constitute serious criminality though directly
connected with forests can only be dealt with under the Penal Code. There are
encroachments only indirectly connected with forests but nonetheless forest
offences.
a) Directly Connected Forest Cases:- The encroachments which are
offences and directly connected with forests which come under the Penal Code
are - Theft, Criminal Misappropriation, with its attendant offences; Receiving
Stolen property; Criminal Trespass; and. Abetment of Offences,
i) Theft:- In India we have "movable" and "immovable" as a division,
though, we may have other classifications for special purposes but with
reference to Indian forests it is this division that is chiefly concerned with.
Immovable property is understood to be, - land, benefits to arise out of land,
things attached to the earth or permanently fastened to things attached to the

"^^ For example, Section 67 of the Act empowers the Distt. Magistrate or any magistrate of the first class
to try summarily under the Code of Criminal, Procedure 1973 any forest offence punishable with
imprisonment upto six months or fme upto Rs. 500 or both.
270
earth. ^ Movable property is, of course, all property that is not immovable.^^^ In
this context, therefore, an act of cutting or separation which severs an originally
immovable article from the ground for example, the act of cutting grass from the
soil, plucking fruit from a tree, severing the stem from the root stock, these acts
make the property movable and of being a theft. Section 378 of Penal Code
declares that whoever intending to take dishonestly any movable property out of
the possession of any person without that person's consent moves that
property, to such taking is said to commit theft and punishment for committing
theft is imprisonment of either description extending upto three years or fine or
both.^^° A thing so far as it is attached to the earth is not moveable property but
as soon as it is severed from the earth it becomes moveable.^^^ The forest viz
reserved forest, village forest or protected forest is in the possession of forest
ofl'icials. Therefore, illicit felling of trees in a reserved forest and transporting the
same with dishonest taking is to be charged of theft. The trees after severed
from the earth become moveable property though it may not be deemed as
moveable property till their cutting or felling. Similarly, Earth, Stones, Clay,
Sand, Mineral or any other component when severed from the earth in a forest
is moveable property and is capable of being subject of theft.
"Where a person kills a wild animal on the property of another, the
carcass does not belong to the killer but to the proprietor of the property
and the latter either by himself or by his duly authorized agent is entitled
to demand and if refused, seize the carcass from the possession of the
Killer".^^^
Wild animal etc. are the property of Government.^^^ Therefore, killing,
hunting, poaching or capturing any wildlife shall become the subject matter of
theft.
"Rescuing cattle from a pound enclosed by a fence is an offence
under Section 378 of Penal Code"^^''
Theft in a dwelling place^^^ and theft by clerk or servant of property in
possession of master^^^ are aggravated forms of theft and punishable with
imprisonment upto 7 years with the additional liability to fine.

258
Section 2 (26) of General Clauses Act, 1879.
259
Section 2 (36).
Section 379 of Indian Penal Code.
See Explanation to Section 379.
See Artu Rantra (1924) 3 Pat. 549.
Section 39 of Wildlife (Protection) Act, 1972
AIR 1927 Mad. 343.
Section 380 of Indian Penal Code.
271
ii) Criminal IVIisappropriation:- "Criminal Misappropriation" is an
offence also related to moveable property but rarely will relate to
encroachments on forests, still it is an offence which may be applicable to
forests. Whoever dishonestly misappropriate or converts to his own use any
moveable property shall be punished with imprisonment of either description for
a term which may extend to two years or with fine or both.^^^ Timber from a
Government or private depot is washed down in floods and gets lodged in "A"s
lands. "A" appropriates the timber for himself knowing its source. He can be
charged for criminal misappropriation. Again, supposing for another instance, a
deer calf is found on A's field, "A" keeps the deer calf and makes no attempt to
inform forest officer, this is, according to the circumstances a criminal
misappropriation being encroachment on wildlife. In ordinary cases, where no
owner can be found, there can not be a misappropriation, because then the
thing really becomes ''res nullius", for instance, "B" finds a five rupee coin lying
on the high way, of course unless "B" have seen some one dropped it or there
is special exceptional probability to guide "B", "B" may keep the coin because it
is obviously Impossible to find an owner. But under forest law, this excuse
would rarely avail, because forest produce^^^ and wildlife^^^ is declared by law,
prima facie, Govt, as owner. Even the wild plants are also declared property of
the Government including their part or derivatives.^^° It is not necessary that the
finder of forest property should know who is the owner or that any particular
person is owner as the Government in the case of forest property. He
misappropriates it if he does not believe it is his own and then makes no
attempt to discover the owner. A man can not, for example, take stones or clay
from riverside with the excuse that he never knew as to who is the owner to find
out, the owner by law is the Government. Both "theft" and "misappropriation"
can take place only with regard to moveable property but, the difference lies in
the fact that in criminal misappropriation, the offender comes into possession of

Section 381.
Section 403.
Section 69 of the Indian Forest Act, 1927 runs, thus; "Presumption that forest - produce belongs to
Government: - When in any proceeding taken under this Act, or in consequence of anything done
under this Act, a question arises as to whether any forest - produce is the property of the
Government, such produce shall be presumed to be the property of the Government, until the
contrary is proved"
Section 39 of Wildlife (Protection) Act, 1972.
Section 17-H.
272
the property casually and there may not be illegality about the manner in which
he has come into its possession and the offence consists in appropriating the
property for his own use without taking steps to restore it to the owner. In theft,
the property is the subject matter of theft that must be in the possession of the
person robbed.
iii) Stolen Property:- "Stolen property" is that of which the possession
has been transferred by theft or extortion or robbery or criminal
misappropriation or in respect of which criminal breach of trust has been
committed.^''^ This is an offence which not being specifically mentioned in the
Indian Forest Act, has to be prosecuted under the Penal Code. The offence of
"receiving" or "retaining" stolen property knowing or having reason to believe
that the property is stolen is closely connected with the offence of theft. The
offence is punishable with imprisonment upto 3 years or fine or both.^^^ There
are other sections following this, which may also be applicable in relation to
forests, for example, the habitual dealing in stolen property^'^^ and assisting in
the concealment of such property.^^"* These are aggravated forms of the offence
of dealing in "stolen property", and to sustain a charge of "receiving" it is
necessary to show (1) that the receipt or detention was dishonest i.e. with
intention of causing wrongful loss or wrongful gain; this fact is, generally, to be
inferred from the circumstances of the case; (2). The offender knew or had
reason to believe that the property was stolen or obtained by misappropriation
etc. This is also generally to be established by the circumstances such as time
and means of getting possession whether at night, in secrecy, taking it at very
low price of its actual value etc.
iv) Criminal Trespass:- "Criminal Trespass" is not likely to be applicable
to forest cases because the specific acts of trespass on forest property are
already provided in the Indian Forest Act. The offence consists in entering on
property in the possession of another, with intent to commit an offence or to
intimidate, insult or annoy any person^^^ in possession of such property: it also
includes an unlawful remaining, with such intent though original entry may have

Section 410 o f Indian Penal Code.

Section 4 1 1 .
Section 413.
Section 414, or Concealing timber may be tried and insufficiently punished under Section 42 o f
Indian Forest Act, 1927.
Section 441 o f the Indian Penal Code.
273
been innocent. Trespassing simply i.e. without such intent is not punishable
under the Indian Penal Code but it is undesirable to allow it in a reserved forest
where it is sure almost to be the origin to some forest offence, therefore, it is
specifically prohibited under the Indian Forest Act.^^^ Moreover, the punishment
is the same i.e. imprisonment upto 3 months or fine upto Rs. 500 or both."^
v) Abetment:- Since the Indian Forest Act lack a provision for the
punishment of "abetment of encroachments", hence, it is essential to
prosecute abetment of encroachments under the Indian Penal Code. However,
the Indian Wildlife (Protection) Act, 1972 has such provision^^® in the Act itself.
"Abetment" occurs in forest cases and Indian Penal Code speaks of abetment
of an offence. ^^^ The term is explained in the Code to include ai\ offences
whether punishable under the Code or under a special law and irrespective of
the amount of sentence to which they are liable.^®° It may be why the legislature
did not make provision for the punishment for abetment in forest
encroachments in the Indian Forest Act. Therefore, the law relating to
"abetment" as it exists is that it is immaterial to the existence of the offence of
abetment whether the principal encroacher has actually committed in
consequence of the abetment or not but the result is very material to the
question of amount of punishment.^^^ It is also immaterial that the principal
offence is excused by any want of legal capacity to commit an offence in the
person who did it. The circumstances which constitute an
"abetment"embodied in the Code Itself.^®^ If the offence abetted is committed,
punishment for abetment is the same as for the offence abetted if no special
provision is made in this regard.^®^ If the offence abetted is not committed, the
abettor may receive a sentence of one fourth of the longest term of
imprisonment provided for the offence or fine or both. If the abettor or the
person abetted is a public servant whose duty it is to prevent the offence, the
sentence may be double i.e. may extend to one half of the longest term of

Section 26(1) (d)of the Indian Forest Act, 1927.

Section 447 of I.P.C and Section 26(1 )(d) of the Indian Forest Act, 1927.
Section 52 of the WP Act, 1972.
Section 108 of the Indian Penal Code.
Section 40.
Explanation II to Section 108 of the Indian Penal Code.
Section 107.
Seciion 109.
274
imprisonment or fine or both.^^^ For an instance, "A" a forest officer whose duty
It is to prevent the commission of theft from a forest abets the commission of
such theft. Though, the theft may not be committed, "A" is liable for punishment
with one half of the longest term of imprisonment provided for the offence or
fine or both. Similarly, "B" makes any encroachment on a forest on the
abetment of "A" a forest officer. Both "A" and "B" are equally liable for such
encroachment being an offence under the Indian Forest Act and can also be
tried under the Indian Penal Code either in view of gravity of the offence. "A"
instigated the setting a forest on fire by "B". "B" acts on such instigation but
taking advantage of the fire, commits a theft of forest produce. "A" is
responsible for the abetment of setting forest on fire not of theft, for this was not
connected with the abetment. It some times happen that an act is abetted but
different result or act is committed, the abettor is just as much liable as if he had
directly abetted the act accomplished provided that the result which actually
followed was a probable consequence of the abetment and was committed
under the influence of the abetment.^®^ There are some special provisions
connected with abetment in other parts of the Chapter in the Indian Penal Code
which are not applicable to forest encroachments. It is important, however, to
denote that if a person who would, if absent at the time of committing the
offence, be liable as an abettor only, but if is present at the time of commission,
he is treated not as an abettor, but as a principal.^®^ Thus, the presence of
abettor at the scene of commission of forest encroachment shall be punishable
as commission of the offence.
The Wildlife (Protection) Act specifically provides that both attempt and
abetment to contravene any provision of that Act or any rule or order made
there under shall be deemed to have contravened that provisions or rule or
order as the case may be.^®^ This provision appears superfluous and requires
amendment.
vi) Attempt:- It sometimes happens that would be encroacher on forests is
stopped by some circumstances before his act is fully accomplished but the
cnminai design is there and everything else, except the opportunity to carry the

Section 116.
Section 111.
Section 34.
Section 52 o f W P Act, 1972.
275
design into complete execution. The mere design or contemplation to commit
an encroachment is not an attempt nor is precedent preparation without any act
towards the encroachment. The penal law in India deals specially with inchoate
crimes which it calls "attempts". It is, however, not easy in all circumstances to
say where the line is to be drawn between preparation for an encroachment on
forests and those partial acts in execution of the encroachment itself which
really constitute an "attempt". The fact of the particular case requires to be
studied in order to ascertain whether there has been an attempt or not.
All cases of "attempt" are punishable under section 511 of the Indian
Penal Code. The Code does not define an "attempt" but requires that to make
an "attempt" penal some act must be done towards the commission of the
encroachment and in general the punishment for an attempt is half that
provided for the offence itself, of course in the absence of any special provision.
There are three stages to the commission of crime (i) intention (ii) preparation
(iii) attempt to commit the crime. An attempt to commit a crime is something
more than mere preparation. It consists in an intent to commit a crime combined
with doing of some act adapted to, but falling short of its actual commission. It is
something which if not prevented by some circumstances would result in actual
commission of the crime. The moment culprit commences to do an act with the
necessary intention, he commences his attempt to commit the crime.^^® For
instance, a person has taken a "pick-up van" to the reserved forest with the
intention of taking forest material stacked on the boundary and is caught when
he is about to load the material into the van. This act of the person is an attempt
to commit encroachment which is an offence within the meaning of section 511
of the Penal Code. An attempt to commit encroachment on forests does not
amount to an offence under the Indian Forest Act and therefore is to be
prosecuted under the Indian Penal Code. Attempts are in the French Law
punished as the crime itself (Code French 2-3).^^^ The Indian Wildlife
(Protection) act 1972, however, declares "attempts" to contravene any of the
provisions of that Act or any rule or order made there under to be deemed to
have contravened that provision or rule or order as the case my be.^^°

'*' Koppula Venkat Rao Vs. State of A.P., (2004) 3 SCC 602.
-*" Supra note 256, p-319.
'"" Section 52 of WP Act, 1972,
276
vii) Mischief:- The term "mischief is defined in Section 425 of the Indian
Penal Code to mean to commit mischief who with intent to cause, or knowing
that he Is likely to cause, wrongful loss or damage to the public or to any
person, causes the destruction of any property, or any such change in any
property, or in the situation thereof as destroys or diminishes its value or utility
or affects it injuriously. Therefore, to constitute "mischief", there must be an
intention to cause or acknowledge that it is likely to cause wrongful loss or
damage to the public or to any person. The offence of "mischief" relates to
property including animals not to men. Any damage caused to forests has been
adequately prescribed punishments for the minor forms of "mischief and are
specified in the Indian Forest Act but the "mischief may be of various classes
and so be of different degrees of criminality, according to the means employed
in causing it, according to the value of the property damaged or destroyed and
also as per the nature or public utility of the property so damaged. Thus,
"mischief" in general as per Indian Penal Code is punished under Section 426
which prescribes imprisonment upto 03 months or fine or both. "Mischief by
fire or explosive substances with intent to cause damage to extent of Rs.100/-
or upwards is punishable with imprisonment of either description for a term
which may extend to 07 years and shall also be liable to fine.^^^ This Section
can be invoked to for booking offenders in cases of mischief by setting forests
on fire in addition to the provision of Indian Forest Act. "Mischief by
destroying or moving any land-mark fixed by the authohty of a public servant or
by any act which renders such land markless is punishable with imprisonment
upto one year or fine or both^^^ but altering boundary mark of a forest is better
to be prosecuted under Section 63 of Indian Forest Act which provides for a
higher punishment of imprisonment upto two years or fine or both. "Mischief
by killing cattle, poisoning, maiming or rendering useless any animal is an
offence punishable with imprisonment upto two years or fine or with both^^^ but
these encroachments are also better prosecuted under the provisions of Indian
Wildlife (Protection) Act, 1972 itself.
b) Indirectly Connected Forest Cases

Section 435 of Indian Penal Code.

Section 434.
Section 428 & 429.
277
i) Un-lawful Assembly:- There are certain other sections of the Indian
Penal Code which are indirectly related to forest encroachments. If five or more
persons assemble with the object of resisting the execution of anti-forest
encroachment order or by means of criminal force or show of such force or
compelling any one to do what he is not bound to do, or not to do what he is
legally bound to do, or deprive any person of the use of any forest right or of
enforcing any right or supposed right or with object of committing an offence
which is punishable under I.P.C. or under any special law with imprisonment
upto six months or more,^^'* such assembly is called as "unlawful assembly"
and is punishable under Section 141 to 143 of the Indian Penal Code. It is not
necessary that any result should have followed, the object of such assembly is
sufficient and joining it is punishable per se. Its aggravated form is if the
assembly is armed.^^^
ii) Contempts of the Lawful Authority of Public Servants:- The provision
of Section 176 of the I.P.C. may also be attracted relating to giving aid and
information. A duty has laid down on the users of forests whether by way of
exercise of any forest right or forest produce etc. to assist forest-officer and
police officer in prevention of encroachments on forests or prosecuting an
encroacher for the forest encroachments and any person bound so to assist,
without lawful excuse the burden of proving which shall lie upon such person,
fails is punishable with imprisonment upto one month or fine upto Rs.200 or
both in the Indian Forest Act, 1927.^^^ The Indian Penal Code properly
describes higher punishments as per the gravity of such failure with
imprisonment upto six months or fine upto Rs.1000/- or with both.^®^ As person
intentionally omitting to give assistance when he is legally bound to do so is
punishable with imprisonment upto six months or fine upto Rs.500/- or with
both.^^^ If a person legally bound to give information has given such information
as he knew or has reason to believe to be false are punishable with
imprisonment upto 2 years of fine or both.^^^ However, giving false evidence is
an offence which is unfortunately likely to occur in forest cases but in as much

"" Section 40 & 41 relating to "offences" and "special law" in Indian Penal Code, 1860.
Section 144.
-"^ Section 79 of the Indian Forest Act, 1927.
""" Section 176 of Indian Penal Code.
-'" Section 187.
""' Section 177 and 203.
278
as on such an occurrence in forest trial the IVIagistrate or Court would take
action, It is only necessary to refer the Forest Officer to the provisions of the
Indian Penal Code or such provision to be incorporated in the Indian Forest Act
appears to be made. The harboring or concealing an encroacher on forests, as
a step designed to defeat the ends of public justice is an offence under Indian
Penal Code. The "encroacher" must, however, have committed or charged
with an encroachment under the forest law is punishable with imprisonment
upto six months or upwards.^°° Thus, in the Indian Penal Code there are
number of sections which are applicable to forest-encroachments, though, the
Forest Act & Wildlife (Protection) Act are "special law" a law devoted to
special subject. In the Indian Penal Code the word "offence" is defined to be
an act or omission; punishable under that code but section 40 of the code
extends this meaning to all offences in the case of number of sections and to
offences under special and local laws if punishable with a certain amount of
penalty six months prison and upward with or without fine. As many of sections
mentioned in Section 40 lay down important principles and these principles are
applied to forest encroachments as well as others.
C. General Exceptions Applicable in Forest Cases
Chapter IV of the Penal Code contains "General Exceptions"^"^ and
these are equally applicable to the forest encroachment cases as well. For
example, an act done under mistake of fact;^°^ act done to prevent other
"Mischief";^°^ act done of necessity;^°'' acts by children, lunatics, etc;^°^ act
done under intoxication, acts done by consent, acts under compulsion, act of
very trifling character, act done in self defence, Responsibility of one person for
act done by another etc. of this Chapter of the Penal Code. The Bavarian
Forest Law of 1852 and The Austrian Forest Law have similar provisions to
some extent but then in forest encroachments cases no attempt has been made
to provide for the specific increase of punishment on the ground of aggravating
circumstances.

Section 212.
'" Section 76 to 106 both inclusive of Indian Penal Code.
"'" Section 76.
'"' Section 81.
'"' Section 96.
"" Section 82 to 85.
279
0. Aggravated Forms of Enhancements
This means the general exceptions are applicable in forest cases but the
law lack the provisions for enhancement of punishments in cases of aggravated
forms of forest encroachment for example, forest encroachments during the
night, on Sunday or holiday because, then, the means of prevention or
detection in the Forest Act is to be counted on; the cases where cutting or
removal of forest material exaggerate the damage, the encroacher runs away
after being called on to stand and give himself up, refuses to disclose his name
and address or gives false one, the encroacher has continued the
encroachment after first conviction or warning. These are the flaws in the Indian
Forest Act, though the Wildlife (Protection) Act does contain certain provisions
to this end.
5. FOREST RIGHTS: ORIGIN AND REGULATION
Indian forests have played an integral role in sustaining its people over
millennia. During early history of India, the area under forests was large and the
population and their wants were small. Therefore, forests were considered of
little or no value by the people as well as Government of the day. The principle
of demand and supply on forests showed the forest resources super - surplus
in relation to the people's needs. But with the quest for development and
population increase the perceptions changed world over with regard to forests
and the role of Law came to the scene for the protection and conservation of
forests vIs-a-vis regulation of rights of people on the forests.
A. Forests as Nobody's Land
The world around us consists of (i) persons and (ii) things. In law certain
body corporate are recognized as "person" and similarly animals are also
regarded as "things" as they are incapable of possessing rights except in a
secondary sense as when we prevent cruelty to them by certain legal measures
and also forests including their materials are things. In the course of the
progress of civilization "things" came to be appropriated by persons either out
of necessity or as an amenity. For instance, when somebody cleared a land of
its trees and growth, leveled it for cultivation, it gave rise to presumption that
such piece of land belonged to him. Similarly, the person, a person who took
the trouble of going into a forest felling a tree or making a wooden article out of
it was allowed to use it by the way. In the course of time, whatever authority

280
existed for example, a king, a chief or headman also began to recognize the
right of the doer person who had appropriated the "thing" in the no man's land,
to enjoy it to the exclusion of others. Hence the concept of rights and obligation
evolved, the right of one person cast an obligation on the others to regard his
right and the command of the authority was used whenever necessary to
enforce these rights and obligations. The Roman Law developed the idea of
"res nullius" as usual with much clearness and one of their developments in this
respect has led to important consequences. Wild animals, precious stones or
metals newly dug up, things abandoned, lands newly discovered and never
before possessed, - these are readily intelligible instances, included in their
definition.^°^ That the person who took and successfully retained possession
became owner by law or got a title by occupancy. Occupancy, in this sense,
means the advisedly or intentionally taking possession of something which at
the moment belongs to no one, with the view of acquiring ownership in it for
yourself.^°'^ This principle is recognized as the principle of prescription.
Blackstone also reminds us that there was a time when every thing in the world
was "nobody's goods". The Creator gave over the earth and its products,
ready to the land of man, and the first inhabitants of our globe simply took, land
and fruits and whatever else they wanted, and kept them if they liked or could
do so. It is a celebrated aphorism, again, of the great jurist Savigny that "all
property Is founded on occupation ripened by prescription".^°^ In other
words, that property must originate in somebody (1) taking possession of
something (2) in holding that something against all comers, till (3) his right to it
is perfected or matured by the feeling that the lawgiver ought not to allow the
possession to be disturbed. Thus the concept of ownership, rights property and
State ownership etc. came up. In short, the concept of legal person, ownership,
possession, rights and obligations on things evolved as these are legally
understood as on date. The concept of State ownership on forest which has
been discussed in Chapter I of this work has close relationship with the rights of
local inhabitants on forests and their regulation through legislations in India in
order to prevent and punish encroachments on Indian Forests which are owned
by the State. The State owned forests are heavily burdened with rights of the

'""' Supra note 256, p-9.

Maine's Ancient Law, Chapter Vlll, Oxford University Press, 1920, p-245.
Supra note 256, p-9.
281
local inhabitants. Uncontrolled rights over public property permitted to be
exercised are harmful both for the public as well as the right holder. This
objective in view to be achieved the nature and extent of the existing rights is to
be determined and regulated.
B. Origin of Forest Rights
The term "right" is defined as an interest recognized and protected by a
rule of law. Thus, by "right" it is always meant legal right i.e. a right that can be
enforced In a court of law. It is "an interest respect for which is duty; and
disregard of which is wrong" - to quote Salmond. Therefore, legal rights
require both recognition and protection and are possessed by persons only.
Animals possess no legal rights though their interest has been protected by law
for the benefit of human being. Right is also defined as the liberty to do or
possess a thing consistent with the law. The concept of right has various
characteristics and classifications, however, the rights on forests as after the
State ownership on these have to be understood in term of Roman law givers -
Roman described ownership by convenient term dominium meaning full or
perfect ownership and may be regarded as an aggregate or bundle of all
possible rights which together make up an absolutely unrestrained enjoyment.
They neatly expressed this by saying that the "dominus" or full owner had the
use (usus), the whole of the products {fructus), the right entirely to consume
{abusus), and the right of transferring or alienating at pleasure (vindicatio). If a
certain right to use some of the produce or to do something or have something
done, so to speak, broken off and separated from, the total of rights which
made up full ownership, such a separate right was called by the roman lawyer a
"servitudB", because the person who held the separated right over some one
else's land or house, or forest (or whatever it was) made, as it were, the
property to serve his purpose.^°^ In England there is no general term for these
''servitude", nor there is a complete classification of such rights. The English
Law, indeed, gives a special name, "easements", to one class of these rights,
leaving the others to be merely called "profits a pendre" or "rights of
common". This classification is one of mere convenience, and at the same
time the line of distinction is by no means clear. A more important distinction,
however, is one which has been adopted into several modern systems of law.

'"' Ibid, p-27.

282
"Servitudes" were divided into "real" and "personal". Real servitudes are
tfiose wliich only exist in connection with some property that is to say to a
person by virtue of the fact that he owns such property. For example, the
villagers have a right to way in forests because they live in and around the
forests by owing some property but if some of the villagers migrate to other
place such right to way also ceases or lapses. If such a right is vested in an
individual or community such a servitude is called personal. In the case of
personal servitudes, when the person or community ceases to exist, the right
also ceases. Right to fish, or to timber in a forest area, if granted, to an
individual as such is an example of personal servitude. Right of personal
servitude cannot be transferred. Not on]y is the right itself ina\ienab)e but a)so
the right holder cannot sell the produce he obtains in exercise of such right
because it is meant for his own use and convenience and if does not require it,
he ought not to exercise the right itself. There may, however, be exceptions as
when the right of collection may itself be for sale as in the cases of rights,
enjoyed by certain hill tribal to collect and sell minor forest produce. According
to English Law servitude are viz. easement and profit-a-pendre as already
mentioned for the sake of convenience, easement is a privilege without profit
which the owner of one neighboring tenement has on another by which the one
called the owner for the servient tenement, is obliged to suffer or forebear
something on his own land for advantage of the other called the dominant
tenement. On the other hand, profit-a-pendre consists of a right to take things of
value from a land belonging to another. The right to pasture or the rights to cut
and remove grass, soil, minerals or to catch fishes animals are examples of
profit-a-pendre. Profit-a-pendre is sub-divided into two categories (i) several
profits which are those enjoyed by a person to the exclusion of everybody else
and (ii) rights of common which are those enjoyed in common with other
persons including the owner of the servient tenement. Here, water is not
considered as a thing of value. The circumstance has probably led the framers
of Indian Statutes to extend the meaning of the word "easement'. The term
"easement" under the Indian law has wider meaning than under English Law in
as much as they include not only easements of necessity but also rights to
produce. Thus, "Easement' is defined as a right which the owner or occupier
of certain land possesses as such for the beneficial enjoyment of that land to do

283
or to prevent something being done, in, or upon or in respect of certain other
land not his own.^^° The land for the beneficial enjoyment of which the right
exists is called the dominant heritage and the owner or occupier thereof the
dominant owner; the land on which the liability is imposed is called the servient
heritage, and the owner or occupier thereof the servient owner.^^^ The
expression "land" in the definition includes also things permanently attached to
the Earth. The expression beneficial enjoyment includes also possible
convenience, a remote advantage or a mere amenity and the expression "to do
something" includes removal of and appropriation by the dominant owner for
the beneficial enjoyment of the dominant heritage of the soil of the servient
heritage or anything growing or subsisting thereon.^^^ It is, therefore, clear form
this explanation that the easement in the Indian Law includes profit-a-pendre of
the English Law. Easements belong to that class of rights which are known as
"servitudes" or "jura in re aliena". These are the rights which one man has
over another's property without having the ownership or possession thereof. In
the case of forest rights, the rights are very generally not personal, for example,
it is the house-holders of village X that have the right of grazing in forest Y. If
one of these inhabitants has to go away and reside permanently somewhere
else, he would lose the right. But it is easy to conceive cases where the right
might be personal. In continental laws, it is stated or taken for granted that
forest-rights are always real survitude. This could not be applied strictly to
India.^^^ These servitudes or rights are acquired very much in the same manner
as the property is acquired i.e. by inheritance, by exchange, by purchase, by
prescription, by grant or by agreement or custom. By legislative enactment as
under Chapter II of Indian Forest Act 1927 which provides for recognition of
certain rights in the course of constitution of a forest land into a reserved forest
i.e. by operation of law etc. These rights sometimes originate in a grant by the
proprietor of the estate. Generations ago, the lord of a forest might have
granted to the ancestors and his descendants for ever, a right to take ten trees
annually from his forests for construction purposes. But, more especially in
India, the origin of the forest rights is not so traceable. It is, then, said to be a

'"' Section 4 of Indian Easement Act, V of 1882.

;•'; Ibid.
'" Explanation to Section 4.
Supra note 256, p-30.
284
"prescriptive" right. The term "prescription" may be defined as the effect of
lapse of time in creating and destroying rights.^^'^ The doctrine of limitation and
prescription is based on the principle that the law assists the vigilant and not
those who sleep over their rights. The object of these laws is to quiet long
possession and extinguish stale demands to ensure peace and repose of the
community by avoiding unnecessary litigation. Hence, these laws are spoken of
as "statute of peace", "statute of repose" etc. In effect, these laws will not
allow a man who has slumbered over his rights for an undue length of time to
litigate in respect of them; on the other hand, a person who has been in
enjoyment of a property or a right for a long time will not be allowed to be
harassed by unexpected litigation cropping up at distant dates involving stale
demands perhaps when the witnesses of the fact are dead or the evidences of
the title are lost. Method of acquiring easement by prescription under Indian
Law are: prescription under the Easement Act where it is applicable;
prescription under Section 26 and 27 of the Limitation Act and claim founded on
lost grant. Prescription at common law as understood in England cannot be
availed of in India.^^^ Forest Rights are so very generally, in their origin and
nature, rights for personal convenience as no one very much cared about the
often vast tracts of waste and jungles in the old days and, as of their own right,
and peaceable, grazing cattle, cutting bamboos, collecting leaves or any other
forest material like minerals and so forth, in the forests. This, therefore, went on
from year to year, and from generation to generation, till the practice is held
under our law to have "ripened by prescription" into a right on forest. This
has been recognized by Limitation Act in all cases where the right has been
exercised "peaceably" and "openly" by any person claiming title thereto as an
easement i.e. as a right not arising out of mere agreement or contract, and as
right, without interruption for twenty years.^^^ The Limitation Act clearly
recognizes the acquisition of any easement including rights of user of forest
produce by prescription.
Thus, the forests which were owned by the Government in due course of
time but they did not exercise strict control over these forests with the result the
neighboring villagers made use of them for meeting several of their

"^ Section 15 of The Indian Easement Act, 1882.

' " AIR 1936 Mad. 682.
' " Section 15 of The Indian Easement Act, 1882.
285
requirements as for timber, fuel, grazing, fodder and mines etc. without let or
hindrance, for long period of time. In a strictly legalistic sense, these practices
indulged in by permission expressed or implied rather than of rights could not
have matured into prescriptive rights but, where the claims were related to
practices absolutely necessary for farm work, technical requisites were waived
and they were mostly in the nature of easements, as more often than not, they
were attached to land rather than to persons. But, with the increase in
population and advancement of civilization, the forests have suffered in extent
and quality and on the other hand, the needs of people have multiplied. The
rights of inhabitants if exercises by a disproportionately large population in
forests which have already been encroached upon variously thereby reduced in
area have become a danger to the very existence of the humanity.
C. Basis of Regulation of Forest Rights
The rights of local inhabitants on forests in India generally are the
exceptions to the prohibitions laid down in Chapter II which are also applicable
to Chapter III "reserved forests" and "village forests" respectively and
Chapter IV "protected forests". Three principles discussed herein below are
generally the basis and provide for the justification for regulating rights of local
inhabitants in or around forests.
a) Rights Not to Efface Ownership Rights:- The rights of user and rights
to produce are always in their nature limited rights. These rights cannot be
extended to destroy the servient property or render its proper management or
profitable use impossible to the owner. It is the common sense view confirmed
by all modern authority on the subject. It is always in the interest of the right
user himself that the hen laying golden egg should be preserved and not
harmed either. If the forests vanish or are degraded, then, rights themselves will
finish. The unrestrained exercise of rights might destroy or damage the forests
to such an extent as to render them in capable of supporting the rights. Well
known maxim "sic utere tuo ut alienum non loedas" which means so use your
right as not to injure another, applies to the forest rights of local inhabitants.
b) Rights to be Limited to Carrying Capacity:- Authorities all over the
world are agreed on the point that carrying capacity of forests are to be kept in
view while regulating rights of the local inhabitants. The rights have to be

286
restricted to what the forests can bear. According to Dr. Roth, a German
Forester,
"A right to wood can only extend to the regular yield of a forest in
its original normal condition. To demand more, would be to attack the
capital or estate itself and so contradict the essential idea of a servitude.
Rights to other produce must also be exercised within such limits that the
substance i.e. the forest soil and growth be not injured".^^^
Therefore, carrying capacity of forests is the guiding principle for
regulation of forest rights regulation.
c) Preservation of Forests in Public Interest:- The various forms of
encroachments on forests are generally due to abuse of rights by the local
inhabitants. Therefore, it is not only in the interest of State but public at large to
avoid such abuses of the right holders. Forests irrespective of their classes are
to be preserved and maintained in a normal productive condition so that
ecology, environment and atmospheric balance is maintained, to prevent
landslides, soil loss, avalanches and floods which are disastrous to the public at
large. Every one, thus, who exercises a right on forest must submit without any
claim to compensation to reasonable limitations to his right as the public welfare
is more Important than the individual exercise of rights on forests.
D. Regulation of Forest Rights
The Indian Forest Act contemplates three methods of forest rights
regulation. According to the Act, first a preliminary notification is made. The
object of this notification is to intimate to the public and to persons interested,
the Intention of Government to proceed to the constitution of certain tracts as
reserved forests.^^^ This notification must specify the limits of the proposed
forest otherwise no body can tell whether he will be effected by it or not.
Permanent demarcation at this stage is not necessary because the limits may
be altered during the process. The notification shall also contain an
appointment of an officer called "Forest Settlement Officer" who will be a proper
authority to settle the forest rights of local Inhabitants. When the proposal to
constitute a reserved forest is made there is "ad interim" prohibition to fresh
clearance or to acquire new rights. Only such rights as already exist are saved
and such other rights as the Government under a grant or contract in writing

Shetty, B.J., "/< Manual of Law for Forest Officers", Sree Ambika Press, Salem-6, 1972, p-77.
"** Section 4 of Indian Forest Act, 1927.
287
has made or entered into.^^^ It is this notification and a date fixed therein to
ascertain the existing status of rights on the forests proposed. A proclamation in
the local vernacular in every town and village in the neighborhood of the
proposed land is issued by the Forest Settlement Officer to specify the limits of
proposed forest and to explain the consequences of making the land into a
reserved forest and invite them to put fonA/ard all claims and objections within a
period of three months.^^° Claims may be preferred verbally or in writing. The
right holders maybe ignorant rural or tribes not thoroughly understanding the
object of proclamation, therefore, the Forest Settlement Officer has been
empowered to make an enquiry, examine government records or to have
information so that the rights and claims are disposed of exhaustively.^^^ When
the true extent, position and authority for the occupation of proposed forest land
has been ascertained, the Act empowers the Forest Settlement Officer:-
a) Exclusion of Land:- This can be made in respect of claims relating to
practice of shifting cultivation but this is to be based on evidence of any local
rule or order and previous sanction of the State Government only.^^^ The land
may be excluded from the limits of the proposed forest.
b) Acquisition of Land:- The Forest Settlement Officer is empowered to
acquire the land so that the Government get the land with a clear title^" and the
land so acquired shall deemed to be needed for a public purpose under the
land acquisition Act, 1894 and that the Land Acquisition Act consequently
applies.^^^
c) Surrender of Rights:- Under this method an exchange is often possible.
It will be possible that the right holder agrees to give up his plot in exchange for
another piece of equal extent or a little more as the case may be in another
place. Under this arrangement money or other compensation can, of course, be
given by amicable agreement."'^^

Section ^.
'"" Section 6.
'-' Section 7 & 8.
'-- Section 10 & II.
'-' Section 11 (3).
'-^ Section 84 of the Indian Forest Act. 1927, which relates to validity of Settlements etc,
'"' Sub-Section 2 (ii) of Section 11.
288
 These three methods are provided for in the Act to a claim to a right in or
over any land proposed to be constituted as a reserved forest and exclude the
right of way, right of pasture or right on forest produce or a water course.
In the case of a claim to rights of pasture or to forest produce the Forest
Settlement Officer shall pass an order admitting or rejecting the same in whole
or In part.^^^
The Indian Forest Act, 1927 does not deal with the right-of-way, right of
water-course which may include rights to the use of water naturally flowing or
rights to take drainage or canal water for irrigation across the proposed forest.
Accordingly, the Forest Settlement Officer neither admits nor rejects them. A
general power, however, is given to the Forest Officer to stop the ways and
water courses in a reserved forest when such a forest has been duly constituted
and declared as such. This requires previous sanction of the State government
and provided that a substitute "which the State Government deems to be
reasonably convenient" has been constructed or provided. The reason
appears that a right-of-way in its nature is a necessity but it is submitted that a
provision requires to be inserted that the right-of-way is for what purpose and
with what width and length as to whether it is only for human being and no
other. It is important to define because in absence of this the encroachments on
forests are unlikely to be checked. Similarly, there must be a clear provision
with regard to right to water-course, spring, pool of water in a forest.
d) Admitted and Defined Rights:- In order to regulate the admitted and
defined rights in forests the Indian Forest Act provides for the record to be
made which shall contain name, father's name, caste, residence and
occupation of the right holder whose rights have been admitted and defined.^^^
The Forest Settlement Officer shall also record the extent to which the claim is
so admitted specifying the number and description of the cattle which the
claimant is form time to time entitled to graze in the forest, the season during
which such pasture is permitted, the quantity of timber and other forest produce
which he is from time to time authorized to take or receive. Any other particular
328

as may be required to be recorded as per the circumstances of each case.

And whether the timber or other forest produce obtained by the exercise of the
'"' Section 12.
Section 13.
'" Section 14.
289
rights claimed can be sold or bartered. There are certain tribals who make at
least a part of their living by cutting bamboos, loads of grass and firewood and
by carrying them for sale to the villages and towns at the foot of the hills. This
fact is one of the feature of the right which it is important for the Forest
Settlement Officer to ascertain and record othenA/ise it is for the right holder's
own use and to be measured by his actual personal or domestic requirement. In
other words, he may have what he wants for his own domestic use but may not
sell or barter the same. The forest produce is ordinarily for the owner's own use
and may be allowed to the right-holder to certain extent. If a right-holder is
allowed to get wood not only for his own house hold but also to supply it to
market, it may cause fraud on the forest to enlarge his sales and swallow up the
whole forest. Generally, the right on forest can not be sold or mortgaged or
otherwise alienated. The exception to this is that If the right is appendant, then,
of course, it may be sold along with the property to which It is appendant. So
also on the decease of the right-holder, the right passes on by succession to his
heirs. This is also provided In the Indian Forest Act^^^ and the Forest Settlement
Officer while making record shall also record whether the timber or other forest
produce obtained by the exercise of the right claimed may be sold or
battered.'^^° A right may not be absolutely gratuitous; it may properly called a
right and yet the right holder may have to render some service or make some
payment for it. This may possibly be the case with rights which were distinctly
granted under some "Parwana" order or "SanacT etc. In which the right Is
conceded as such on certain conditions. Ordinarily, a right which has merely
grown up by prescriptive exercise would not have a condition attached to It
because then its origin would not be prescriptive but traceable to some person
who gave the right and annexed the condition. When a payment is made for the
use of forest produce, it would usually indicate that there was no right but that
the produce was leased or sold for the money that was paid and thus was not
enjoyed adversely but on contract.^^^ This, however, Is quite different from the
case where grazing in a forest Is sold annually, or for a term of years, and a
contract buys it. The same person might go on buying year after year but he
would acquire no servitude or legal right, his title would be simply by his

'"'' Section 23.

Section 14.
''' Supra note 256, p-197.
290
contract, to have his profits, or the way, or the grass or whatever he bought.^^^
A forest right may also be, by its origin, for the life-time of a person or for
several lives time. This is generally in a case where the right had been specially
granted or allowed in clear terms. Whatever, the case may be, the Forest
Settlement Officer after satisfying himself is obliged to record the same.
The three methods as have been enumerated ante are to be applied for
recording the forest right to be exercised by the right holder(s). Firstly, altering
the proposed boundaries of the forest so as to exclude a portion of the area
which must be sufficient in extent and also must be reasonably convenient in
situation for the purpose of the right-holder, and giving this up to the exercise of
rights- the rest of the forest will be, then, having no rights inside it. Thus, in this
case the right itself is not affected; only the site of its exercise is transferred and
that must be so as not unfairly to the inconvenience of the right holders.
Secondly, the right after admitted is recorded to be exercised inside forest but
subject to regulation as to number of cattle, quantity of forest produce, local
limits, season and kind of forest produce and all other conditions like life time,
services or charges so that the exercise of the right is made compatible with a
proper management of the forest. Thirdly, a proceeding under the Land
Acquisition Act, 1894, the Forest Settlement Officer shall be deemed to be a
Collector proceeding under that Act, the claimant shall be deemed to be a
person interested and appearing before Collector in pursuance of a notice given
under Section 9 of LA Act, 1894. The provisions of the preceding sections of
that Act shall be deemed to have been complied with; and the Collector with the
consent of the claimant, or the Court, with the consent of both the parties, may
award compensation in land, or partly in land and partly in money.^^^ The land,
thus, acquired shall be deemed to be acquired for the public purpose.^^^ In
short, in the first method, the defined right is provided for in a piece of land
excluded from the reserved forest, in the second, the defined right is allowed to
be exercised inside the reserved forest under certain regulations and conditions
reasonably providing for the safety and improvement of the forest also do not
seriously or unfairly impair the exercise of the right. In the third, the land itself is
acquired as per law of acquisition for the forest.

"- Ibid.
Section 1 I Sub-section (3) of the Indian Forest Act, 1927.
"•' Section 84
291
E. Commutation of Rights
The provision for right as described in the preceding paras may not be
possible. There may be no surplus forest to give up to the exercise of rights,
and the right which exist are in such number that it is not possible to recognize
that they can not go on without destroying the last vestige of the forest. It may
be further that no more regulation, or reasonable conditions as to land, time,
quantity, use, number or season and so forth will be of any avail to the exercise
of forest right. Then, the right must be got rid of by commutation. In this context,
the Indian Forest Act provides that in case the Forest Settlement Officer finds it
impossible having due regard to the maintenance of the forest i.e. when the
forest can not bear the right without deterioration or the right would suffer unfair
curtailment, and when there is no other land available for the exercise of the
rights the Settlement Officer shall subject to rules made by the State
Government in this behalf, commute such rights by the payment to such
persons of a sum of money in lieu thereof, or by the grant of land or in such
manner as he thinks fit.^^^ It may be observed that nothing is said how the right
are to be evaluated or on what principle either the grant of land is to be made or
the grant of money awarded. It has simply laid down that the Settlement Officer
may "commute" the rights. Thus certain provision shall have to be inserted. It
is also questionable whether a claim to right can be bought particularly when it
be a necessity to the inhabitants. In France, wood - rights are get rid of always,
by granting in full proprietary right, a piece of the forest of a value equal to the
capitalized value of the right: this process is called "cantonnement".^^^ But
grazing-rights, the Government cannot expropriate the right; it is recognized as
"of absolute necessity" to a community or to several communes.^^'' It
assumes that wood-rights are never indispensable as free rights. Wood can
always be bought but the loss of grazing right may have no other way of
supporting their cattle. As per Indian Forest law it is the Forest Settlement
Officer to hold an even balance between the demands of the public interest in

Section 16.
"" See French Code Forest, Article 63.
" Ibid, Art. 64.
292
the matter of forest conservancy on the one hand and the convenience of right-
holders on the other.
F. Extinction of Rights
The Forest law in India has given the amplest opportunity to people to
claim their rights, without any formality or bar in the first instance. The right-
holders may make written or verbal claims before the Forest Settlement Officer.
Not only this, the Forest Settlement Officer will himself endeavour to find out if
any rights not claimed, exist, so far as the same may be ascertainable from the
records of Government and evidence of any person likely to be acquainted with
the same.^^^ It appears that the Forest Settlement Officer will act as the next
friend of Ignorant and timid people and find out their rights for them. The law
also make due provision for any accidental delay in presenting claims as long
as the final notifications have not actually been issued, any delay reasonable
accounted for is overlooked and the claims entertained and disposed of. The
period for making a claim fixed in a proclamation issued under Section 6 of the
Act can not be equated with the period of limitation fixed under the Limitation
Act. A formal application for condonation of delay in filing the claim is not
necessary.^^^But the publication of a notification under section 20 whatever
rights the claimants had in the area in respect of which no claim was preferred
and the Forest Settlement Officer had acquired no knowledge in the course of
an enquiry^'*° shall become extinguished.^'*^ This provision of forest law is
absolutely necessary and is in accordance with the jurisprudence of all modern
nations. No forest would be safe and no repression of trespass or other
encroachments in future would be possible if unsettled rights remained for ever
looming in the background. The only possible thing must be to take every
precaution that all rights are ascertained, and having done everything that is
possible in this respect. It is, thus, to be declared that no right not brought to
light can be held to have any legal existence. Where the land does not fall
under section 3, the rights in land do not become extinguished, it is only the
land comprised first in the original notification issued under the Section 4 and

"** Section 7 of the Indian Forest Act, 1927.

'" Hardayal Vs. District Judge Jhansi, AIR 1972 All 471 1972 ALJ 649.
'*' Section 7 of the Indian Forest Act, 1927.
'^' Section 9.
293
finally notified under Section 20 of the Act in which the rights are declared to
have extinguished.
The State Government is vested with power of revising arrangements
which power can be exercised within a period of five year from the date of final
notification to obviate any possible injustice.^'*^ The last opportunity so to be
called.
G. Shifting Cultivation
The term "Shifting Cultivation" is variously known in India like "Jum"
in Bengal and Assam "Khil" or "Korali" in the North West Himalyas "Bewar"
in the Central India, "Kumari" "Ponakad" or "Takkal" etc. in South India. The
nomadic cultivators of land use to cut the forest, sell the timber, and the tops,
branches and the small stuff are spread over the ground and burnt. The ground
Is hoed, and then sown. Generally, one crop only is taken. Under this system of
cultivation, the fertilizing effect of the ashes produces heavy crops but
subsequent crops are less and the piece of land is abandoned; and new piece
of forest cut. One of the great trouble consequent on this practice is that the fire
from the clearings is allowed to spread in all directions, and miles after miles
forest is annually burnt. Valuable forest disappears under the process. The
Indian Forest Law has named it as "Shifting Cultivation"^'*^ though not
defined. The Forest Settlement Officer is required to prepare a statement
showing the particulars of the claims of persons concerned in "Shifting
Cultivation" and the rules notification or order under which such person are
allowed to continue the practice of "Shifting Cultivation" and submit his
statement to the State government together with his opinion as to whether such
practice should be permitted or prohibited wholly or in part. Thus the tenancy
rights have not been recognized in such cases. It is the jurisdiction of the State
Government either to accept or reject the statement and opinion of the Forest
Settlement Officer. If such practice is permitted wholly or in part, it shall in all
cases be deemed a privilege subject to control, restriction and abolition by the
State Government^'*'* and the Forest Settlement Officer has to make

'^" Section 22
"'^" Section 10
'^'' Sub-Section 5 of Section 10.
294
arrangement accordingly.^'*^ Therefore, the State Government may permit
"Shifting Cultivation" though subject to certain condition not as a matter of
rights but as a privilege by this definitely encourages encroachments and most-
often-then not is to defeat the objective of the law. It is therefore, submitted that
this provision needs to be struck down from the statute. There are similar
provisions made by the State Legislatures for example. The Rajasthan Forest
Act. 1953 and the Karnatka Forest Act 1963.^^*^ The provision has been used
for political gains than to save the forests against encroachments. Moreover,
the loss of national wealth is much more when compared with production. This
provision is inconsistent to the National Forest Policy 1988 which declares that
shifting cultivation is affecting the environment and productivity of land
adversely.^'*'' Therefore, such provision must have no place in the statute.
H. No New Right be Acquired
"No right of any description shall be acquired in or over a reserved
forest" 3^^
when the forest is declared reserved from a given date under Section 20
of the Act except the obvious case where the right passes by succession but
then It is not a new right, but an existing right which passes on from the right-
holder to his heir. State Government may grant a right or may enter into a
contract in writing. In India the forest rights rarely or never originated in a grant
or contract. Rights grew up out of a mere long continued and openly exercised
practice of the inhabitants of villages in the vicinity. Hence, the obvious
standard is the number as found in actual enjoyment of the practice at the time
of settlement. After settlement new additional rights can not grow up. Even,
Section 5 bars accrual of forest rights after issue of a notification under Section
4 of the Indian Forest Act. Therefore, no new right can be acquired in a
reserved forest.
I. Rights in Protected Forests

Sub Section 3 of Section 10 of the Indian Forest Act, 1927 runs thus: (3) If such practice is permitted
wholly or in part, the Settlement Officer may arrange for its exercise: (a) by altering the limits of the
land under settlement so as to exclude land of sufficient extent of a suitable kind in a locality
reasonably convenient for the purpose of claimants or (b) by causing certain portion of the land under
settlement to be separately demarcated and giving permission to the claimants to practice shifting
cultivation therein under condition as he may prescribe.
Section 10.
See para 4,7 of Indian Forest Policy 1988.
Section 23 of the Indian Forest Act, 1927.
295
 Protected forests are a class of forests said to be of secondary
importance to the State which give the forests limited protection and the
Government limited control over them without prejudice to the exercise of the
existing rights of user by the local inhabitants. The arrangement of constitution
of protected forests as envisaged in Chapter IV of the Act consists of (a)
providing a general and inexpensive demarcation of boundary to delimit the
forest (b) prohibiting the conversion of forest into cultivated land (c) reserving a
limited class of valuable trees to which no would have a right (d) periodically
closing portions of the areas that might need such closures (e) generally
making provision for simple rules which would prevent the encroachments.
Hence, "Protected Forest" can be constituted out of any forest land or waste
land which is the property of the Government but which has not become a
reserved forest.^^^ A notification in official gazette is issued by the State
Government and the forest land and waste comprised in such notification is
termed as "Protected Forest".^^° The record of rights is to form the basis for
determing the nature and extent of rights in favor of any individual and will be
presumed to be correct until the contrary is proved. When the record-of-rights
does not furnish sufficiently clear data, the State Government may take such
other steps as may be considered necessary to ascertain the nature and extent
of the rights.^^^ This follows that no elaborate procedure is prescribed for
enquiring into and settling the rights as have been under Chapter II of the Act.
The declaration of the area as "Protected Forest" need not always wait till the
question of rights is fully settled and the declaration can be made pending such
settlement of the rights without prejudice to the existing rights of individuals and
communities if the rights of Government are likely to be endangered during the
further period required for settling the rights.^" These are the cases of
determing forests and prohibiting them from encroachments unless permitted
as per Chapter-IV of the Act the difference being
"Everything is prohibited in a reserved forest unless specially
permitted and everything Is permitted In a protected forest unless
specially prohibited".

•^" Section 29 (I) of the Indian Forest Act, 1927.

Section 29 (2).
'^' Sub-Section (3)) of Section 29.
'^" Proviso to Sub-Section
-Section (3) of Section 29.
296
 However, the State Government may by notification in tlie official gazette
(a) declare any trees or class of trees in a protected forest to be reserved from
a date fixed by the notification, (b) declare any portion of a protected forest
closed for a term not exceeding thirty years. The rights of private persons if any
over such portions are suspended during such period and from the date fixed in
the notification the quarrying of stone, breaking up land, removal of forest
produce etc. are prohibited in such closed portion of protected forests.^" These
are the cases of reserving trees or class of trees and closing portion of
protected forest. Further, the Indian Forest Act empowers the State
Government to make rules to regulate the use of protected forests i.e. the
exercise of rights of the local inhabitants in such forest forests.^^^ These rules
are mandatory as there is no elaborate provision made in chapter-IV in this
regards.
J. Forest Rights and Wildlife (Protection) Act
The Indian Wildlife (Protection) Act, 1972 contains provisions for the
determination of the existence, nature and extent of the rights of the local
inhabitants in "Protected Areas" viz Sanctuaries and National Parks.^^^
a) Forest Rights in a Sanctuary:- The State Government is empowered to
declare its intention to constitute any area other than an area comprised within
any reserve forest or the territorial waters as a sanctuary by issuing a
notification if it considers that such area is of adequate ecological, faunal, floral,
geo-morphological, natural or zoological significance and as such the purpose
Is protecting, propagating or developing wildlife or its environment.^^^ An officer
known as Collector is to be appointed to enquire into and determine the
existence into and determine the existence, nature and extent of rights of any
person in or over land comprised within the limits of the sanctuary area^^^ and
till such time as the right of affected persons are finally settled, the rights of the
local inhabitants shall remain suspended^^^ and the State Government is to
make alternative arrangements for making available fuel, fodder and other
forest produce to the local inhabitants affected in terms of their rights on the

Section 30 of the Indian Forest Act. 1927.

"^ Section 32.
'" Chapter IV of the WP Act, 1972
'° Section 18.
'" Section 1 8-B.
'*" Section 18-A(1).
297
basis of government record i.e. record-of-rights.^^^ The Collector is to inquire
into, and determine the existence, nature and extent of the rights of the
inhabitants^^" and when a notification has been issued there is bar of accrual of
new rights in or over the land comprised in the sanctuary. The only exceptions
are succession, testamentary or intestate.^^^ The Collector shall have to make a
proclamation within sixty days by publishing it in regional local language in
every town and village or in the neighborhood of the area comprised in
sanctuary so that the people know the situation and limits of the sanctuary and
requiring them to claim any right before the Collector.^®^ The claims are to be
preferred within two months of the proclamation made by the Collector and to
be in writing on a prescribed form specifying the nature and extent of his or her
right with necessary details and amount of compensation if any, claimed in
respect of the forest right.^^^ The Collector here is not like a friend as has been
contemplated in the Indian Forest Act what it termed Forest Settlement Officer.
The Collector is to serve a prescribed notice upon the claimant or the
existence of any right not claimed so far as the same may be ascertainable
from the records of the State Government and form the evidence of any person
acquainted with the same.^^" The Collector is empowered to enter in or upon
any land and to survey, demarcate and make a map or he may authorize any
other officer to do so. The Collector has same power as are vested in a civil
court for the trial of civil suits.^^^ Thus, Collector is a Civil Court for the
determination of existence nature and extent of any right or over land
comprised in sanctuary. The Collector, after having determined the claim to a
right in or over any land in the proposed sanctuary area as above shall pass an
order admitting or rejecting the same in whole or in part.^^^ When a claim to a
right has been admitted in whole or in part, the Collector may cause to do either
of the following three:^^'' (i) Exclude the land form the proposed sanctuary area,
or (ii) Acquire the land as per the provision of Land Acquisition Act, 1894; or (iii)

'"' Section I8-A(2).

'•"' Section 19.
'' Section 20.
'"' Section 21.
;"' Ibid.
Section 22.
• " Section 23.
'** Section 24 (I).
'""' Section 24 (2).
298
 Allow continuance of any right of any person in a or over such land within the
limits of the sanctuary.
While allowing so the Collector has to make consultation with Chief
Wildlife Warden. The time limit for completion of acquisition proceeding for
declaration of a sanctuary has been fixed two years from the date of issue of
intention of a proposed sanctuary of the State Government^^^ and after
completion of such proceedings the sanctuary is dully constituted under the
Wildlife (Projection) Act, 1972 shall apply to such sanctuary area,
b) Forest Rights in a National Parks:- The Indian Wildlife (Protection) Act
1972, contemplates constitution of National Parks where it appears to the State
Government that an area whether within a sanctuary or not is by reason of its
ecological faunal, floral, geomorphological or zoological association or
importance needed to be constituted as a National Park for the purpose of
protecting, propagating or developing wildlife therein or its environment, it may
issue a notification^^^ intending which shall specify the limits of which shall
specify the limits of National Park so to be constituted.^^° An officer known as
Collector as in the case of sanctuary appointed for the determination of
existence, nature and extent of any forest right in or over land intended to be
constituted a National Park is to apply same power and procedure as are
applicable in the cases of a sanctuary for the determination of claim to any right
in or over such land required for constitution of National Park.^^^ The Collector
after determination of the claim to any right of the inhabitant shall either reject or
admit the claim in whole or in part. When the claim is rejected, the right(s)
extinguish. When the claim to right is admitted in whole or in part, the collector
shall cause to do to either of the two:^^^ One exclude the land from the
proposed area of National Park, or two, acquire the land as per Land
Acquisition Act, 1894, It will be observed that in the case of a National Park,
exercise of any right is not to be allowed,^'^^ once it is dully constituted. Hence
everything is prohibited in a National Park unless specially permitted. It will also
be noted that no provisions of appealing or revision with regard to forest right

••(.«
Section 25-A.
V.o
Section 35 (1).
'•7li
Section 35 (2).
.; V 1
Sub-Section (3) of Section 35.
572
Ibid.
373
Ibid.
299
affected by declaration of a Sanctuary or Nation Park area have been
prescribed under the Wildlife (Protection) Act, 1972. However, the WP Act
specifically safeguard the hunting rights conferred on the Scheduled Tribes of
the Nicobar Island^'''' in the Union Territory of Andaman and Nicobar Islands as
notified by Andaman and Necobar Administration, No. 40/67/F.No.G-635, Vol.
Ill, dated 28'^ April, 1967, published at pages 1 to 5 of the Extraordinary issue of
the Andaman and Nicobar Gazette, dated 28'^ April, 1967. It is further provided
that in the case that the limits of the area of the territorial water is to be included
either in a Sanctuary or National Park, adequate measure to protect the
occupational interests of local fishermen are to be first made^^^ and the
determination is to be made in consultation with the Chief Naval Hydrographer
of the Central Government.
Forest Laws in India recognize the rights of local inhabitants on forests.
Rights always give rise to duties or obligations. Moral rights give rise to moral
duties and legal rights give rise to legal duties. Rights and Duties are, therefore,
correlative terms. To quote Salmond, "There can be no right without
corresponding duty". The Indian Forest Laws recognize the legal rights of the
local inhabitants but do no impose any duty upon the users. Mostoften than not,
encroachments on forests are made in the disguise of use of rights by the local
inhabitants. The current problems of encroachments on forests and wildlife
arise directly from the resource dependencies of the people. The law, therefore,
has to keep abreast of rapidly changes if it is to fulfill its avowed objective.
6. FOREST CONSERVATION ACT AND IT'S IMPLICATIONS.
The Forest Conservation Act, 1980 is an Act to provide for the
conservation of forests and for matters connected therewith or ancillary or
incidental thereto.^'^^ Conservation does not mean only preservation and
protection of existing forest but also includes re-afforestation. Conservation of
forest includes both. Forests have to be regularly cut; to meet the needs of the
country. At the same time, re-afforestation should go on to replace the
"vanishing forest". It is continuous and integrated process.^^^ The Forest
Conservation Act, 1980 was enacted with view to check further deforestation

Section 65.
^ Section 26-A, read with proviso to Section 35 (1).
I itie of tlie Forest (Conservation) Act, 1980.
" ' Anupama Minerals Vs. Union of India, AIR 1986 AP 225 at 237.
300
which ultimately results In ecological Imbalance; and therefore, the provisions
made therein for the conservation of forest and for matters connected therewith,
must apply to all forests irrespective of the nature of ownership or classification
thereof. The provisions enacted in the Act for the conservation of forest and
matters connected therewith must apply clearly to all forests so understood
irrespective of the ownership or classification thereof.^''^ The Act marked a
fundamental policy shift in managing natural resources. Implications of the
epoch making enactment may be analyzed in the following paras:
A. Curtailment of Powers of the State
The Forest Conservation Act, 1980 came on the statute books as a
consequence of 42"'' amendment of Indian Constitution, 1976. The subject(s) of
"Forests" and "Wildlife Protection" were transferred from State List to
Concurrent List. This diminished the legislative powers of States over Forests
and Wildlife matters whereas the Center's power over these subjects increased
considerably. The Government of India, therefore promulgated, the Forest
(Conservation) Ordinance on 25'^ October, 1980 with a view to checking further
deforestation.^^^ The ordinance made the prior approval of the Central
Government necessary for dereservation of reserved forests and for use of
forest land for non-forest purposes. The ordinance also provided for the
constitution of an advisory committee to advise the Central Government with
regard to grant of such approval. The Forest (Conservation) Act, 1980 replaced
the said Ordinance and contains similar provisions. Thus, it is obligatory for the
State Government to obtain prior permission of the Central Government for:^®°
(a) dereservation of forest; and, (b) for use of forest land for non-forest
purposes. The Act, therefore, has imposed restrictions on the dereservation of
forests or use of forest land for non-forest purposes.^®^

"' T.N. Godaverman Vs. Union of India, AIR 1997 SC 1228; (1997) Supreme Today 221.
"' Sec. 1, Short Title of the FC Act, 1980.
'"' Ambica Quarry Works Vs. State of Gujarat, AIR 1987 SC 1073, 1075.
'' Section 2 of FCAcll 980.
301
B. Curtailment of Forest Rights
The Forest (Conservation) Act, 1980 also has reduced people's rights
over forest land and forest produce.^^^ It is worthwhile to denote that the Forest
Policy as well as provisions of the Forest (Conservation) Act, 1980 do not
interfere in any manner or restrict the Nistar, recorded rights, concessions and
privileges of the local people for bonafide domestic use as granted by the State
Governments under the Indian Forest Act, 1927 or State Forest Act or
Regulations. However, the State Governments are to ensure that while allowing
such rights, concessions and privileges to be exercised, the right holder do not
resort to felling of trees or break up the forest floor so as to procure stones
minerals or take up construction etc.^^^ Harvesting of fodder grasses, legumes
etc. which grow naturally in forest areas without removal of the tree growth, will
not require prior approval of the Central Government. However, lease of these
areas to any organization or individual would necessarily require approval under
the Forest (Conservation) Act, 1980.^^'* The collection of forest produce from
forest is to be made manual and is to be transported through local modes like
bullock carts, camel carts etc. No mechanical vehicle can be used in
transporting forest produce.^^^ The Supreme Court has passed an order on 14-
02-2000 to restrain removal of dead, diseased, dying or wind-fallen trees, drift
wood and grasses etc. from any National Park or Game Sanctuary ^®^ This
follows that the forest rights of local inhabitants also have been curtailed to
greater extent.
C. "Forest" and "Non-Forest Purposes" Re-defined
The Forest (Conservation) Act, 1980 has widened the meaning and
scope of the term "Forest" and "Non-Forest Purpose". The word "Forest"
came up for consideration before the full bench of the Supreme Court in the
case Janu Chandra Waghmare Vs. State of Maharashtra.^^'^ The Court in
this case held that even the dictionary meaning clearly shows that "Forest"
means an extensive tract of land together with the trees and under growth

Garbyal, S.S., ''Comments on Forest Legislation", Natraj Publishers Dehradun in ''Hand Book of
Environment Forest & wildlife Protection Laws in India", 2"'' Edn., 1999, pp-l9-20.
Hand Book of Govt, of India, MoE & Forests, Part-C, Chapter 1, Guidelines & Clarification -
Application of Forest (Conservation) Act, 1980, 2004, p-19.
Ibid. Clarification (ii).
Ibid.
SC order dated 14-02-2000 and 21-02-2000 in I.A. No.548 in WP No.202/1995.
70 Bl,R4<)9atp-521.
302
which covers such tract and also includes pastures which intermingle with such
tract. The expanded meaning of "forest" helped to save the forests from
encroachments. For example, the concern of the Kerala High Court about
depletion of the forest wealth, an endangered bounty of nature, is clearly
reflected In its judgement in the Jairaj case.^^® In which, the court held that
breaking up or clearing of forest includes "cutting down one tree
therefrom".^^^ The term "forest land" mentioned in Section 2 of the Forest
(Conservation) Act refers to reserved forest, protected forest or any area
recorded as forest in the government records. The term "forest" shall not be
applicable to the plantations raised on private lands, except notified private
forest.^^° Thus, the term forest land as occurring in Section 2 of the Forest
Conservation Act will not only include "forest" as understood in the dictionary
sense, but also any area recorded as forest in the Government record
irrespective of the ownership. Having extended the scope of the forest land and
its meaning this Act has re-defined the scope and meaning of non-forest
purposes so that the State Government may not allow forest land to be
converted for non-forestry purposes. It explained in clear terms that "non
forest purpose" means the breaking up or clearing of any forest land or
portion there of for''^^ (a) the cultivation of tea, coffee, spices, rubber, palms, oil
bearing plants, horticultural crops or medicinal plants (b) any purpose other
than re-afforestation. The State Government or any other authority can not
make any order directing that any forest land or any portion thereof may be
used for any non-forest purposes without prior approval of the Central
Government.^^^ Thus expression "non forest purpose" find place in sub-
section (ii) of Section 2 of the Forest (Conservation) Act and has been defined
by the above explanation thereto. The explanation has two limbs. The first limbs
is "breaking up or clearing of any forest land" or portion thereof. The second
limb is that contained in clause (a) and (b). In clause (a) the legislature has
enumerated specifically certain acts as "non forest purposes". In its wisdom
the legislature has used the word "re-afforestatlon" in clause (b) and not
afforestation. This is not without significance. Both the words have their origin in

'*" AIR l996Ker362.

' Ibid.
•""' Supra note 383, Clarification (i) p-19.
" Explanation to section 2 of Forest (Conservation) Act, 1980.
'" Section 2 Clause (ii).
303
the word "afforest". The dictionary meaning of this word "afforest" is to turn
ground Into forest.^^^ According to Oxford English dictionary, it means to plant
areas of land with trees to form a forest.^^" Therefore, the word "re-afforest"
would naturally mean to afforest once again.
D. Conflict of Laws
The Forest Conservation Act, 1980 has created certain conflicts of forest
law. These conflicts are needed to be tackled.
a) Dereservation of Reserved Forest:- The Forest Conservation Act 1980
forbids "reserve forest" from being dereserved by the States. Denotification or
dereservation, otherwise, is a State subject which they are empowered to do
under the Indian Forest Act.^^^ This power of the State Government is also
given by the Central Legislature.
b) Issues of Land Uses
The main spirit of the Forest Conservation Act is to conserve forests.
This can not be achieved unless the law mandates decision making on scientific
basis and the conflict of powers of land utilization under the Indian Forest Act
and the Forest Conservation Act is resolved. The Forest Conservation Act, is
not really a substantive law, it is a delegated legislation which empowers the
Central Govt.'s Minister to make decisions about how to use the forest
resources leaving aside, for the moment his or her knowledge of the Indian
forest situation and its value. Moreover, the Indian Forest Act leaves the
decisions about land use to the Government; there is further complication with
regards to the Indian Wildlife Protection Act, 1972 too. This Act also makes the
State Legislature the repository of the land use power.^^®
The rule making powers of the State Government particularly under
Section 28 regarding management and use of "Village Forest" and those
enumerated in Section 32 of the Act related to "protected forests" is in direct
conflict with the Forest Conservation Act, 1980. For example, the State

393
See Strouds Judicial Dictionary.
394
Supra note 61, p-20.
395
Section 27 (I) of tiie Indian Forest Act, 1927, which runs, thus: The State Government may by
notification in the official gazette, direct that from a date fixed by such notification any forest or any
portion thereof reserved under the Act shall cease to be reserved forest.
Section 26 A of the WP Act, 1972.
304
Government is empowered to make rules for clearing or breaking up of any land
for cultivation or other purposes in such forests.^^^
The land use issues get further complicated due to the 7Z"^ Amendment
to the Constitution which puts the obligation of the Panchayats to manage
village forests. Thus the land use issues are in direct conflict.
E. Forest Conservation Act and Encroachments
The Forest (Conservation) Act 1980 does not define the term
"encroachment" but the provisions of this Act, Rules and Guidelines embody a
framework regulating indiscriminate diversion as well as use of forests for
developmental need of the States, people and the nation at large so that
development is not impeded but the problem of encroachments on forests in
India remains in it various forms as has been accepted by Govt, of India:
"Encroachment of forest land for cultivation and other purposes
continues to be the most pernicious practice endangering forest
resources throughout the country. Statistical information compiled by
Ministry of agriculture during 1980s revealed that nearly 7 lakhs hectares
of forest land was under encroachment in the country about a decade
back. This is despite the fact that prior to 1980, a number of States had
regularized such encroachments periodically and approximately 43 lakh
hectares of forest land was diverted for various purposes between 1951
and 1980, more than half of it for agriculture".^^^
This statement is made by the Ministry of Environment and Forests,
Government of India, however, the position is much more serious as of now
despite the guidelines issued by the Central Government^^^ and clarification
issued from time to time. These guidelines and clarification laid down that there
are two preconditions for any encroachments to be regularized: (a) The State
Government should have taken decision on regularization of encroachments
before 25.10.1980. (b) that the decision should be with reference to some
eligibility criteria (normally expected to be related to social and economics
status of encroachers, location and extent of encroachment, cut off date of
encroachment etc.'*°° The latter encroachments though occurring before
25.10.1980 are not covered by any regularization decision taken prior to that
date and hence were not to be considered for regularization.
The Government of India had itself accepted that the

'"" Section 32 (g) of the Indian Forest Act, 1927.

Supra note 383, p-50.
' Vide Ministry ofE& Forests No. 13,1/90-F.P (1) dated 18.9,90.
"' Ibid.
305
 "encroachments are generally done by the powerful lobbies and
has caused great harm to forest conservation particularly when these are
carried out in the remote areas in a honey comb pattern. These
encroachments are also seriously threatening the continuity of the
Wildlife corridors between the various National Parks and Sanctuaries".'"'^
This shows, however, the tip of ice berg. The Central Government had
conceded that as per the information received from various states
approximately 12.50 Lakh hectares of forest land was under encroachment.
There might be many more unrecorded instances which might add to the over
all tally.'*°^ Though, it had issued instructions for eviction of the encroachers and
Forest Officers were to be delegated powers under relevant Acts for trials of
encroachers. A process of summary trail for the completion of eviction was to
be evolved'*"^ but it is interesting to denote that there Is no provision in the
Indian Forest Act to delegate powers to the Forest Officers for summary trial of
the encroachers on forests. Wildlife (Protection) Act, 1972 contains such a
provision.''°'* Forest Officer not below the rank of Deputy Conservator may
remove any unauthorized structures, buildings or constructions erected on any
Government land within any Sanctuary or National Parks.'*°^ All things, tools
and effects be-longing to encroacher are to be confiscated. Eviction of
encroachment is in addition to any other penalty which may be inflicted for
violation of any other provision of that Act.""^ The Indian Forest Act should have
been similar provision, though it does contain powers of seizure""^ and
confiscation'*"^ by Forest Officer in certain cases. The expression
"encroachment" on forests needs to be re-defined in wider sense to cover all
forms of encroachment.
F. Diversion of Land for Non-Forest Purpose
The Forest (Conservation) Act, 1980 empowers the Central Government
to make rules for carrying out the provision of that Act. The rules are to be
notified in the official gazette and placed before the each house of the
Parliament.''°^ This Act also empowered Central Government to constitute a

Govt, of India Ministry of Environment and Forests No. 7-16.2003 F-C dated 3-5-2002.
Ibid.
Ibid, para (iii).
Clause (a) of Section 34-A of the WP Act, 1972.
Clause (b) 1 of Section 34-A.
Sub Sec (2) of Section 34-A.
407
Section 52.
408
Section 52-A.
4n<7
Section 4 of the FC Act, 1980.
306
 committee consisting of such numbers of persons as it deem fit to advise that
Government with regard to: (i) the grant of approval on the dereservation of
forests or use of forest land for non-forest purpose under Section 2 of that Act.
(li) Any other matter connected with the conservation of forests which the
Central Government may refer to it."^" Accordingly, the Central Government
made Forest (Conservation) Rules, 1981 which have been amended from time
to time. Forest Advisory Committees have been constituted both at Central level
and regional level.''^^ Before 2004 there was only Central Forest Advisory
Committee for the purpose. The Government of India had amended these rules
drastically and, inter-alia, has constituted Regional Empowered Committee.'*^^
Rule 6 of Forest (Conservation) Rules 2004 contains an elaborate procedure for
submission of proposals seeking approval of the Central Government under
Section 2 of the Forest (Conservation) Act. Prescribed forms "A" for new
proposal and "B" for seeking renewal of leases have been appended to these
rules.'^^^ A time bound provisions have been made for the disposal of the
proposal seeking approval of the Central Government so that the
developmental activities are not hampered for want of such approval.'*^^ The
Regional Empowered Committee is empowered to decide diversion of forest
land upto five hectares and process, scrutinize and fonward diversion proposals
of more than five hectares and upto forty hectares, along-with the
recommendations, if any, to the Ministry of Environment and Forests, Govt, of
India but this power of Regional Empowered Committee is only for forest land
other than mixing and encroachments.'*^^ Time limit is forty five days.^^^ All
proposals involving forest land more than forty hectares and all proposal
relating to mining and encroachments irrespective of the area involved are to be
forwarded by the State Government or UTs as the case may be to the Ministry
of Environment and Forests, Govt, of India.''^^ These proposals are to be put up
before the committee for its advice.'*^® All proposals involving clearing of

410
Section 3.
•41 I
See Rule 3 of Forest (Conservation) Rules, 2004.
Published in Gazette of India on 3"* Feb., 2004.
.1 I "
Sub-Rule (I) of Rule 6 of the Forest (Conservation) Rules, 2004.
JI4
Ibid, Sub-Rule 3 of Rule 6.
Ibid, Sub-Rule 4.
Ibid. Sub-Rule 5.
417
Ibid, Sub-Rule 6.
418
Ibid, Sub-Rule 7.
307
naturally grown trees on the forest land or a portion thereof for the purpose of
using it for reforestatation are to be sent in the form of Working Plan or
Management Plan.'*^®
The Provisions of the FCA and Rules made thereunder and the
Guidelines issued by Central Govt, have over-riding effect Reserved Forests
are considered as good forests with plenty of bio diversity, therefore, have been
considered to be kept intact."^" There is ban on de-reservation of a forest.
(a) Mining Proposals:-Mining including underground mining is non-forestry
purpose and therefore requires prior permission of the Central Government.
The Rules made by the State Government are to have a compliant to the
provision of Forest Conservation Act. Boulders, bajri, stone etc. in the river beds
located within forest areas would constitute a part of the forest land and their
removal would require prior approval of the Central Government.'*^^
(b) Clearance from Environmental Angle:- The projects covered under
notifications issued from time to time under Environment (Protection) Act, 1986
require clearance separately from environmental angle, as per procedure laid
down by the Environment Wing of the Ministry of Environment and Forests.
Therefore, two separate communication of sanction are issued viz. clearance
from forest and clearance for environmental angles.^^^
(c) Cost-benefit Analysis:- It has been made essential that ecological and
environmental losses and socio-economic distress caused to the people who
are displaced are weighed against economic and social gains. The types of
projects for which cost-benefit analysis is required are all proposals involving
forest land more than 20 hectares in plains and more than 5 ha. in hills
including roads, transmission lines, minor, medium and major irrigation projects,
hydel projects, mining activity, railway lines, location specific installations like
micro-wave stations, auto repeaters centers, T.V. Tower etc. However, all
categories of proposal involving forest land upto 20 hectares in plains and upto
5 ha. in hills require case by case value judgement and the cost-benefit
analysis. Other proposals like defence installation and oil (Prospecting only),
habitation, establishment of industrial units, tourist lodge/complex and other

" Ibid, Proviso to Sub-Rule 3 of Rule 6.

* ' Supra note 383, p-25.
^"' The advice of the Ministry of Law, Government of India, in regard to the Supreme Court order in
Civil Appeal No. 2349 of 1984 dated 07-05-1989.
•*"•• Supra note 383, p-28.
308
 building construction do not require such cost-benefit analysis.'*^^ Parameters'*^'*
for evaluation of loss of forests and parameters'*^^ for evaluation of benefit
notwithstanding loss of forests have been specified and are to be appended
with the proposal. Specifically, guidelines have been issued with regard to
review of disputed claims over Forest Land, arising out of forest settlement,'*^^
disputes regarding patos/leases/grants involving forest land settlement
thereof,"*^^ conversion of Forest Villages into Revenue villages,'*^^ participation
of private sector through involvement of NGOs & Forest Department in
afforestation/rehabilitation of degraded forests,'*^^ cluster mining'*^" and Tusser
cultivation (Vanya Silk Cultivation).'*^^ The Wind TurbineAA/ind Mills to be used
on forest land approved by the Ministry of Non-Conventional Energy Sources,
Govt, of India for projects utilizing Wind Energy.'*^^ Collection of Net Present
Value for diversion of forest land for non-forest purposes under the Forest
(Conservation) Act, 1980 has been ordered^^^ in compliance with the Supreme
Court order dated 30.10.1982 in lA No 566 in Writ Petition (c) No, 202 of 1995.
There are guidelines issued for "Regularization of the rights of the tribals
on forest lands"^^ the implementation of which has been stayed by the
Supreme Court vide their order dated 23.02.2004 in lA No. 1126 in lA No. 703
of 2000 in W P (c) No.202 of 1995."*^^ Similarly, the implementation if Forest
(Conservation ) Rules 2004 notified on 3.2.2004 have been stayed by the
Supreme Court vide their order dated 23.02.2004 in lA No.1126 in lA No.703 of
2000 in WP(c ) No.2002 of 1995.'*^^ It is significant to denote that these
guidelines are issued by the Ministry of Environment and Forests, Govt, of
India. A question arises as to whether these guidelines are legally enforceable?
Since these guidelines have not been issued by the authority of legislature,
therefore, these are invariably and undoubtedly liable to be mis-used.

Supra note 383, p-61 (Annexure-VI (a).

j;4
Ibid, p-62 Annexure-VI (b)
4:5
Ibid, p-63 Annexure-VI (c).
4:(>
MOE and F, G.O.I. No.l3-l/90-F.P.(2) dtd.18-09-90.
4:T
MOE and F, GOI No. 13-1 /90-F.P dated. 18.9.1990
428
MOE and F, GOI No. 13-1/90- F.P (5) dated. 18.9.90.
429
MOE and F ,GOI No.8021/96-FC dated 07.06.99.
4'.()
MOE and F, GOI No.2-1/2001-FC dated 15.11.2001.
4.11
MOE and F, GO! No. 2-1/2003 F.C (Part-Ill) dated 7.6.2004.
4'i2
MOE and F. GOI No. 8084/2002-FC dated 14.5.2004
MOE and F, GOI No.5-l/98-FC (Part II) dated 18.9.1003 dated 22-9-2003 and 25.5.2004
MOE and F, GOI 01 No. 2-1/2003-FC (P+1) dated 5.2.2004
Supra note 383. see note under index.
Ibid.
309
 Consequences of non-compliance to these guidelines will be rejection of
approval for diversion of the forest land required for any developmental activity
by the State Government and if any Government or authority undertakes
certain developmental activity involving forest land without prior permission
then the penalty provision of the Forest (Conservation) Act 1980 is attracted
which provision lays down that whoever contravenes or abets the contravention
of any of the provisions of Section 2 shall be punishable with simple
imprisonment for a period which may extend to fifteen days"*^^ It further provides
that where the contravention is made by any department of government the
head of department or by any authority then, every person including that
authority directly in charge and responsible for the conduct of business shall be
deemed to be guilty of the offence and is liable to be proceeded against and
punished.'*^^ Even the consent or connivance or an act attributable to any
neglect on the part of any officer of that department or in the case of an
authority any person of that authority has been made liable for the
punishment'*^^ for the contravention of provision of Section 2 of the
Conservation Act.
d) Compensatory Afforestation:- Compensatory afforestation is one of
the most important conditions stipulated by the Central Government while
according approval for de-reservation or diversion of forest land for non-forest
uses.""*^ Land for Compensatory Afforestation is an equivalent area of non-
forest land required.'*^^ In this regard the Central Government has clarified that
as a matter of pragmatism, the revenue lands/zudpi \ung\e/chhote/bade
lungle/bade jhare ka jungle/jungle-y/jar/ land/civil-soyam lands and all other such
categories of lands, on which the provisions of Forest (Conservation) Act are
applicable, are to be considered for the purpose of compensatory afforestation
provided such lands proposed to be notified as Reserve Forests under the
Indian Forest Act, 1927.*^^ The transfer of land must take place prior to the
commencement of the project so that plantation raised can be managed by the
forest department permanently. Compensatory Afforestation Fund Management

417
Section 3 A of the Forest (Conservation) Act, 1980
J!S
Section 3B (i).
J10
Section 3B (2).
441)
Supra note 383, p-31.
44;
Ibid.
44:
(bid. p-33.
310
 and Planning Authority "CAMPA" has been notified.'*''^ This body has a
Governing Body and Executive Body with Minister for Environment and Forests,
Govt, of India and Director General of Forests M.O.E.F. as Chairperson
respectively. Its, headquarter is at New Delhi and it functions under the
supervision of Central Government in the Ministry of Environment and Forests.
It provides for State Level Steering Committee and State Management
Committee with the Chief Secretary and Principal Chief Conservator of Forests
as Chairperson respectively."'*'* Interestingly, the constitution of "CAMPA" has
been ordered under Sub-Section (3) of Section 3 of the Environment
(Protection) Act, 1986 and in pursuance of the Hon'ble Supreme Court's order
dated 30'^ October, 2002.""^
The Forest (Conservation) Act is not really a substantive law, it is a land
use law and depends upon the whims and fencies of the Minister or his
commitment to the political party he belongs to. Therefore, the rigorous
implementation of the Forest (Conservation) Act has met with resistance. The
Forest (Conservation) Act is being blamed for tribal unrest, naxalite violence
and is seen as an obstruction towards development. There is a tug of war going
on between those who regard the Forest (Conservation) Act as a legislation that
ensures ecological and environmental security for human and non-human
species and those who regard it as a hindrance to development and a cause of
tribal unrest. The balancing of competing claims, and interest to differentiate
between genuine and bonafide needs of the local inhabitants with that of
necessity of bio-diversity is, therefore, in the core for consolidation of forest
laws so that the required bio-diversity, conservation and sustainable use of
forest wealth may be carried out.
7. CONCLUSION

The conclusion emerges that the Forest laws are incomplete,

inadequate, uncertain and ambiguous for prevention and removal of
encroachments on forests. With the development, urbanization, industrialization
and ever increasing population the forests in India have been encroached. The
ancient prudence was having conviction of preservation of forests, reservoirs of

'' Published in the Gazette of India extra Ordinary Part lI-Section-3-Sub-Section (ii) dated 23' April,
2004.
•-•'' Ibid.
'' lA No.566 in WP (Civil)'No,202 of 1993.
31
wildlife and maintenance of their habitat. Illegal conversion of forests for
cultivation, mining, quarrying, pasturing beyond carrying capacity, forest-fire,
illegal cutting trees and destruction of wildlife for gains are the various forms of
encroachments and have been prohibited under law. Though, the man has a
right to properly use the natural wealth not in self interest but in view of public
interest and in the interest of posterity but forests have been over-exploited.
Forest Laws in India were first codified by the Britishers and the Indian Forest
Act, 1927 still in effect though the Indian Wildlife (Protection) Act, 1972, Forest
(Conservation) Act, 1980 and Environment (Protection) Act, 1986 are Central
legislation enacted after independence. Recent Acts have been superimposed
in view, perhaps, of the inadequacy. They do not necessarily abrogate or
replace the provisions of forest laws. The Encroachments on forests have been
generally understood in narrow sense as only to illegal conversion of forest land
for cultivation purposes, as a matter of fact, there are various other human acts
like illicit felling of trees, illegal quarrying, mining, forest fire by human agency,
taking of forest material illegally, destruction of wildlife and other damages to
forests which constitute encroachments. The basic law relating to prevention of
encroachments on forests is contained in the Indian Forest Act, 1927 as
prohibitions of certain acts by the human being. The Act has been locally
amended by the States. Since no provision is made in this Act regulating the
manner of investigation, enquiry, trial or otherwise dealing with these
prohibitions, therefore, the Code of Criminal Procedure is applicable in criminal
cases and Code of Civil Procedure in civil cases. The prohibitions enumerated
in Section 26 and Section 32 of in Indian Forest Act are obviously insufficient,
unclear and sometime ambiguous and so is the rule making power of the States
with regard to encroachments. The Act provides for declaration, demarcation
and settlement of reserved forests and regulation the rights of local inhabitants.
The exercise of these recognized rights have been misused by the mighty and
influential people and the right holders, the people living in and around the
forests, the forest dwellers are the sufferers. Therefore, the provisions require
suitable amendment by the way of substitution, omission or insertions of new
provisions in order to check the encroachments. The forest laws speak of
regulation of rights and impose no duty on the right holders. The Wildlife
(Protection) Act and Forest (Conservation) Act, 1980 marked policy shift in

312
management of natural wealth. The Wildlife (Protection) Act contains specific
provision to empower forest officers for the trial of wildlife cases relating to
encroachments but the Indian Forest Act unfortunately lacks such provisions.
Some provisions of Indian Penal Code 1860 are also applicable to certain
cases of forest cases but still the Indian Forests are vanishing mainly due to
encroachments. The Forest (Conservation) Act 1980 has been enacted with a
view to check further deforestation which ultimately results in ecological
imbalance. This Act presumably contains the spirit of forest conservation and
matter connected thereto. It prohibits de-reservation of reserved forests and
conversion of forest land for non-forest purposes without the prior approval of
the Central Government. It curtails the powers of State government and rights
of local inhabitants. The clearance from environmental angle and socio-
economic benefit analysis are mandatory for conversion of forest land for non-
forestry purposes but then conflict of laws have been created. The guidelines
issued by the Central Government for the application of this Act are either on
the insistence of the Supreme Court or are executive directions and bearing no
legal status. Consequently, the Act is being viewed an impediment to
development and sometime being misused for party politics. The
implementation therefore, been resisted throughout the country generally and in
tribal areas particularly.
The legal provisions relating to forest encroachments as analysed here
above reveal that the forest law in India not only is inadequate, unclear and
ambiguous but has created conflict of laws. An indifferent attitude of the Indian
legislature for the forest laws has put at stake the Indian environment and
ecology. Therefore, the Forest laws require re-drafting and consolidation
because the protection and conservation of forests thereby protect and improve
the environment and maintain ecology is not only national obligation but is
international obligation as well.

313