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Nigam Priyae Saroop v. State of Jammu and Kashmir and Ors. - (National Green Tribunal) (01 May 2017)

NGT has jurisdiction to deal with substantial question arises out of enforcement of enactments given in Schedule 1 of NGT Act, 2010

MANU/GT/0037/2017

Environment

Applicant after being shocked on reading the news item, reported in Daily Excelsior Jammu dated 17th February, 2016 giving details of transfer made by State Government of 159 hectares of forest land to Higher Education Department for establishment of Indian Institute of Technology (IIT) in Nagrota area of Jammu district, has filed this Original Application under Sections 14, 15 and 18 of National Green Tribunal Act, 2010. Case of Applicant is that, impugned orders, administrative in nature, have been issued by Respondents effecting transfer of forest land, removal of forest trees in habitat of forest are illegal, without authority of law and malafide in accordance with facts and circumstances of case. First and foremost question involved is while the matter relates to State of Jammu & Kashmir Forest (Conservation) Act, 1997, whether this Tribunal has jurisdiction to adjudicate upon the present case.

State Government undertook the procedure, as prescribed under law, to obtain requisite forest clearance. Ownership of land was under Forest Department and therefore indent dated 28th July, 2015 for forest clearances was placed under user agency i.e. Higher Education Department, with Principal Chief Conservator of Forest, Government of Jammu & Kashmir. Forest Department had issued sanction to use land vide order dated 11th February, 2016 after duly complying with procedure contemplated under Section 2 of Jammu & Kashmir Forest (Conservation) Act, 1997. Ministry of Environment and Forest, Respondent No. 9, in its reply to the application has also submitted that it is the Jammu & Kashmir Forest (Conservation) Act, 1997 applicable for project in question, which deals with demarcation, diversion of forest land or use of forest land for non-forest purpose.

As per provisions of NGT Act, 2010 this Tribunal has jurisdiction where any question arises as to implementation of enactment which has been enumerated in Schedule I. Tribunal has jurisdiction over civil cases where a substantial question relating to environment is involved which arises out of enforcement of seven enactments as given in Schedule. Tribunal is to settle disputes, under Section 14 of Act, in all civil cases where substantial question relating to environment is involved. Conjuncture 'and' used in later part of provision has significance. Civil cases involving substantial question relating to environment must be one which arises out of implementation of enactments given in Schedule namely; Water (Prevention and Control of Pollution) Act, 1974, Water (Prevention and Control of Pollution) Cess Act, 1977, Forest (Conservation) Act, 1980, Air (Prevention and Control of Pollution) Act, 1981, Environment (Protection) Act, 1986, Public Liability Insurance Act, 1991 and Biological Diversity Act, 2002.

This view finds support in principle of law laid down by Supreme Court in case of Bhopal Gas Peedith Mahila Udyog Sangathan versus Union of India holding that provisions and scheme of National Green Tribunal Act, 2010 particularly Sections 14, 29, 30 and 398(5) of Act, it can safely be concluded that, environmental issues and matters covered under NGT Act, Schedule I should be instituted and, litigated before NGT. In case of T.N Godavarman Thirumulpad v. Union of India, which is a case of great significance relating to the protection and conservation of forest throughout the country, Supreme Court of India heard Central Government as well as Governments of all States and in so far as State of Jammu & Kashmir is concerned it had issued directions, that, any felling of trees in forest or otherwise or any clearance of land for execution of projects, shall be in strict compliance with the Jammu & Kashmir Forest Conservation Act, 1990 and any other laws applying thereto. However, any trees so felled, and the disposal of such trees shall be done exclusively by State Forest Corporation and no private agency will be permitted to deal with this aspect. This direction will also cover the submerged areas of the THEIN Dam.

Therefore, controversy raised herein is in respect of transfer of land for project in question which is very much part of State of Jammu and Kashmir. On count that, State of Jammu & Kashmir Forest Act 1990 not being one of enactments mentioned in Schedule I of the Act of 2010, Tribunal does not have jurisdiction to adjudicate present controversy as it does not fall within purview and scope of Section 14 of NGT Act, 2010 so as to settle dispute herein. Controversy of transfer of forest land for non-forest purpose on proposal of Forest Advisory Committee, and order passed by State of Jammu & Kashmir whereby use of 159 hectares of land has been sanctioned for construction of the institution for Higher Education Department in Jammu Forest Division, cannot be adjudicated by this Tribunal on account of lack of statutory jurisdiction. Consequently, this Original Application is dismissed.

Relevant : Bhopal Gas Peedith Mahila Udyog Sangathan versus Union of India MANU/SC/0642/2012: (2012) 8 SCC 326, T.N Godavarman Thirumulpad v. Union of India MANU/SC/0278/1997: (1997) 2SCC 267

Tags : FOREST LAND   TRANSFER   JURISDICTION  

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