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THE NATIONAL UNIVERSITY OF

ADVANCED LEGAL STUDIES

PROJECT WORK ON LAND LAWS

SUBMITTED BY,

DONA GEORGE

ROLL NO: 938

VII SEMESTER

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LAWS RELATING TO ECOLOGICALLY FRAGILE
LANDS [EFLs] IN INDIA AND THE NEED FOR
CONSERVATION OF EFLs;
WITH SPECIAL REFERENCE TO THE KERALA FOREST (VESTING AND

MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) ACT, 2003

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CONTENTS

1. Introduction…………………………………………………….. ………4
2. Ecologically Fragile Lands………………………………………………5
3. Need for conservation of ecologically fragile
lands……………………………………………………………………….5
4. The Kerala Forests (Vesting and Management of Ecologically Fragile
Lands) Act, 2003………………………………………………………….8
5. Constitutional Validity of the Act………………………………………10
6. Relevance of Kasturirangan and Madhav Gadgil reports…………12
7. Conclusion………………………………………………………………15
8. Bibliography……………………………………………………………..16

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INTRODUCTION
The concept of ecologically sensitive areas is very much an Indian invention, rooted in attempts

by civil society to use the Environment Protection Act, 1986 to promote sustainable development

alongside protection of the natural heritage. The term ‘Ecologically Fragile Area' was first used

in 1991 for Dahanu Taluka in Maharashtra, followed by the declaration of other ESAs like

Mahabaleshwar-Panchgani and Matheran. These are all initiatives of civil society organizations

or are a consequence of a resolution of the Indian Board for Wildlife in 2002 to protect areas up

to 10 kilometers from the boundaries of wildlife sanctuaries and national parks.

Initially, there were no guidelines available on what areas may be considered ecologically

sensitive, nor on working out an appropriate management regime. These issues were addressed

in 2000 by the Pronab Sen Committee. The Sen Committee's foremost criterion for identification

of ESA is endemism. Western Ghats harbours well over two thousand endemic species of

flowering plants, fish, frogs, birds and mammals amongst the better known groups of organisms,

and thousands more amongst less studied groups. Amongst themselves these span the entire

Western Ghats and all conceivable habitats, including highly disturbed ones. The Western Ghats

region also qualifies as an ESA under several other Sen Committee criteria.

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ECOLOGICALLY FRAGILE LANDS
Section 2 of The Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act,
2003 provides the definition of an ecologically fragile land.

Section 2 (b):

“ecologically fragile lands” means-

(i) Any forestland or any portion thereof held by any person and lying to or
encircled by a reserved forest or a vested forest or any other forestland owned
by the government and predominantly supporting natural vegetation; and
(ii) Any land declared to be an ecologically fragile land by the Government by
notification in the Gazette under section 4.

Section 4 of the same Act provides for the power of the government to declare lands as
ecologically fragile lands. This power of the government is based on its power to protect and
safeguard environment provided for under the Environmental (Protection) Act, 1986. Section 3
of the Environmental (Protection) Act, 1986 provides for the power of the government to take
measures to protect and improve environment.

Section 3(2):

In particular and without prejudice to the generality of the provisions of section (1), such
measures may include measures with respect to all or any of the following matters
namely:

(v) restriction of areas in which any industries, operations or processes or class of


industries, operations or processes shall not be carried out or shall be carried out subject
to certain safeguards.

This power is further elaborated in the Environment (Protection) Rules, 1986. Rule 5 of the said
rules provides for the prohibitions and restrictions on the location of industries and the carrying
on processes and operations in different areas. It provides that the Central government may take
into consideration certain factors including biological diversity of the area, environmentally
compatible land use, proximity to protected areas etc., while prohibiting or restricting the

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location of industries and carrying on of processes and operations in different areas. These
provisions have been used by the government to declare Eco-Sensitive Zones or Ecologically
Fragile Areas.

NEED FOR CONSERVATION OF ECOLOGICALLY FRAGILE LANDS

Ecologically fragile lands are repositories of rich bio-diversity which evolved through millions of
years. The material resources of the community like forests, hillock, mountains etc., are nature’s
bounty and are essential to maintain the ecological balance and they need to be protected for a
proper and healthy environment which enable the people to enjoy life which is the essence of the
right guaranteed under Article 21 of the Constitution of India.

The need for the conservation of ecologically fragile lands is elaborated in The Kerala Forests
(Vesting and Management of Ecologically Fragile Lands) Act, 2003.

The preamble to the Act observes that ‘earth’s biological resources with their intrinsic
ecological, genetic, economic, social, cultural, scientific, educational, recreational and aesthetic
value are global assets and public trust is vital to the sustained economic and social development,
maintenance of ecological balance and the very existence of humanity’.

The statement underscores the fact that public trust and participation is vital to the conservation
of the biological resources which is a global asset. The Act moves on to say that the fundamental
requirement for the conservation of biological diversity is the institutional conservation of
ecosystems and natural habitat and the maintenance and recovery of viable populations of
species in their natural surroundings.

The urgent need for conservation is based on the fact that the bio-diversity hotspots which are
very rich repositories of bio-diversity are extremely susceptible to rapid irreversible degradation.
Hillocks and mountain valley of the Western Ghats have already been substantially damaged by
damage of western slope of the western valley. Therefore there is a need for institutional
machinery for the conservation of such ecologically fragile land. This is provided for under The
Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003.

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THE KERALA FORESTS (VESTING AND MANAGEMENT OF ECOLOGICALLY

FRAGILE LANDS) ACT, 2003.

The Government of Kerala enacted the Kerala Forests (Vesting and Management of Ecologically
Fragile Lands) Act, 2003 which came into force from 08-06-2005 to provide for vesting in the
Government, of Ecological Fragile Lands in the State of Kerala and for the management of such
lands with a view to maintaining ecological balance and conserving the Biodiversity. The term
EFL is defined under the Act as follows;-

It means:-

(i) any forest land or any portion thereof held by any person and lying contiguous to or encircled
by a reserved forest or a vested forest or any other forest land owned by the Government and
predominantly supporting natural vegetation, and (ii) any land declared to be an ecologically
fragile land by the Government by Notification in the Gazette under section 4;

Under Section.3 of the Act, the EFL are transferred and vested in the Government and such
vesting shall be notified in the Gazette by informing the owners in writing by the Custodian.
That apart, the Government has the power to declare by Notification in the Official Gazette to
identify lands which are ecologically fragile and on recommendation of the Advisory Committee
such land is deemed to be a reserved forest under Section.5 of the Act. The term Custodian is
defined under section. 2(a) of the Act, means the Principal Chief Conservator of Forests of the
State or any other officer not below the rank of a Conservator of Forests appointed by the
Government, by Notification in the Gazette. There are other provisions under the Act for
payment of compensation and vesting and settlement of disputes by the Tribunal both to decide
as to whether the lands are vested as EFL or not and also the sufficiency of compensation.

In K. Savad v. Ministry of Environment, Forest and Climate Change, it was observed by the
National Green Tribunal that the idea of the Act is not only to maintain ecological balance and
conserve biodiversity but to achieve such goal to declare Ecologically Fragile Lands of private
individuals on payment of compensation for enriching the forest cover and Biodiversity. Even
though the vesting is automatic under the Act, the same is mandated to be notified in the gazette

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and sufficient notice given to the owners who are entitled to approach the Tribunal to contest that
what was vested was not an EFL.

For identifying and recommending to the Government the land as Ecologically Fragile Land, an
Advisory Committee has been constituted with the Principal Chief conservator of Forest as the
Chairman and many other experts and people’s representatives.

The objective clause of the Act clearly provides that it is an Act to provide for the vesting in the
Government of Ecologically fragile land in the State of Kerala and for the management of such
lands with a view to maintaining ecological balance and conserving the bio-diversity’.

The Preamble to the Act further elaborates the scheme of the Act. It is observed that ‘the Earth’s
biological resources with their intrinsic ecological, genetic, economic, social, cultural, scientific,
educational, recreational and aesthetic value are global assets and public trust is vital to the
sustained economic and social development, maintenance of ecological balance and the very
existence of humanity.

Ecologically Fragile Land to vest with the Government

Section 3 of the Act provides that from the date of the commencement of the Act the ownership
and possession of all Ecologically Fragile Lands held by any person or any other form of the
right over them, shall stand transferred to and vested in the Government free from all
encumbrances and the right, title and interest of the owner or any other person thereon shall
stand extinguished from the said date. It is further provided under section 5 that all ecologically
fragile land shall be deemed as reserved forests within the Kerala Forest Act, 1961.

Section 8 of the Act provides that the owner of such lands to be vested with the government
under this Act shall be eligible for compensation for the said land including the permanent
improvement thereon.

Section 10 provides for settlement of dispute by the Tribunal where a dispute is raised as to
whether the land is ecologically fragile or not and whether the ecologically fragile land or a
portion thereto is vested in the government or not with regard to compensation. Sections 10A and
10B are other provisions pertaining to dispute redressal. Section 16 provides for management of
the ecologically fragile land by the Forest Department as per the management plans.

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CONSTITUTIONAL VALIDITY OF THE ACT

The Constitutional validity of the Kerala Forest (Vesting and Management of Ecologically
Fragile Lands) Act, 2003 was challenged by a bunch of writ petitions and was considered jointly
by the High Court of Kerala in Planters Forum v. State of Kerala. 1

The petitioners submitted that the 2003 Act is unconstitutional, void, inoperative and liable to be
struck down. Challenge to the constitutional validity has been raised on the following grounds:
(i) The Act is ultravires of the legislative competence of the Kerala Legislature. The State
Legislature has no power to enact the Act.

(ii) Only Parliament is competent under the residuary power to enact the law as the ecology is
not specifically included in any of the lists, hence it falls under entry No.97 of List I of VII
Schedule of the Constitution of India.

(iii) The Act is violative of Article 14 of the Constitution of India as the Act provides for two
types of vesting of land.

(iv)Compensation is provided only under Sec.4 and no compensation is provided when the land
is vested under Sec.3 of the Act.

(v) The Act is violative of Article 31A of the Constitution as the lands which were under the
personal cultivation of the petitioners have been taken without paying compensation and the Act
has no Presidential assent under Article 31A of the Constitution.

(vi) The Act is not protected under Article 31C of the Constitution.

(vii) The object of the Act is not to give effect to any directive Principles of State Policy nor is
the subject matter of the Act referable to Article 39(b) and 39(c) of the Constitution.

(viii) No specific assent is obtained under Article 31C from the President of India. Assent
obtained for other purposes cannot be treated as an assent for a different purpose.

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Planters Forum v. State of Kerala, 2015(2)KLT83.

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(ix) The Act is violative of Article 300A of the Constitution as the owners of the land are
deprived of their property notified without authority of any valid law and without paying
compensation.

(x) As per Article 254 of the Constitution the Act being repugnant to various Central Laws is
inoperative and void. The Act is enacted to take over property of private persons under the guise
of protecting forests. Provisions of the Act are violative of the provisions of the Indian Forest
Act, 1927 and Wild Life Protection Act, 1972, hence the provisions of the 2003 Act to take over
private properties are legally unenforceable.

(xi) The State Legislature has no authority to enact any law to give effect to any International
Treaty. Under Article 253 of the Constitution, the Parliament is the competent authority to make
any such law.

(xii) Provisions of the Act are arbitrary and illegal. Sections 3 and 4 are unreasonable and
violative of the fundamental rights. Section 4 provides that the land can be taken only on the
basis of advice by an expert committee whereas arbitrary and unbridled power has been given
under Sec.3(2) of the Act to notify any land as ecologically fragile land without the advice of the
expert committee.

Regarding the legislative competence of the government to enact the law the court looked into
Union of India v. Shri. Harbhajan Singh Dhillon2 . In this case it was pointed out that Article 248
of the constitution conferring legislative power is “framed in the widest possible terms”. The
argument that a wide range given to entry 97 of the List I, read with Article 248 of the
Constitution, would destroy the “federal structure” of our republic was rejected there. On
application of a similar test in this particular case the court held that powers given to the Central
government by section 3 of the Act could not be held to be invalid on the ground that the federal
structure of the State is jeopardized. Furthermore the court rejected the submission of the
petitioners that the Act was repugnant to certain Central legislations.

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Union of India v. Shri. Harbhajan Singh Dhillon, (1971) 2 SCC 779

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Another submission whereby the petitioners had argued that the Act violated Article 253 of the
Constitution was also rejected by the court stating that the act was not enacted to give effect to
any international agreement.

Considering the question as to whether the enactment was protected by Article 31A it was
observed that since the Act was not brought in to bring any agricultural reform, the act is not
protected by Article 31A.

Considering the submissions by the petitioners in detail the court upheld the validity of the Act.

RELEVANCE OF KASTURIRANGAN AND MADHAV GADGIL REPORTS

The report of the Western Ghats Ecology Expert Panel (WGEEP), popularly known as the
Madhav Gadgil report, and that of the High Level Working Group (HLWG), known as
Kasturirangan report, have evoked opposition from all sections of the people. It is relevant to
look into the crux of these reports while considering the topic of ecologically fragile lands.

The Western Ghats and the eastern Himalayas in India have been classed among the eight
“hottest hotspots” of biodiversity in the world. Many important rivers such as Godavari,
Nethravathi, Krishna, Vaigai, Kaveri, Kunthi and numerous other water bodies originate from
the Western Ghats that run parallel to the West Coast --- from the river Tapi in the north to
Kanyakumari in the south. As per the Gadgil report, it is 1490 km long and 48 to 210 km wide,
with an area of 1,29,037 square km. It shelters as many as 25 crore people in six states, namely,
Gujarat, Maharashtra, Goa, Karnataka, Kerala and Tamilnadu.

A study of the southern region, comprising the states of Karnataka, Kerala and Tamilnadu,
showed that about 40 percent of the original vegetation cover was lost or land converted to other
uses between 1920 and 1990. In the context of neo-liberalism where the level of environmental
degradation due to reckless exploitation of natural resources by corporate houses has increased
manifold, it is the working class and the peasantry that have to address the environmental
challenges with utmost seriousness.

In view of the environmental sensitivity and ecological significance of the Western Ghats, as
well as possible impacts of climate change on this region, the MoEF constituted the WGEEP

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through an order dated March 4, 2010. The 14 member panel with renowned environmentalist
Prof Madhav Gadgil as chairman held 14 meetings in one and a half years and submitted its final
report on August 31, 2011. But the report was prepared without any consultation with the local
population, people’s representatives and political parties. When the report was made public in
March 2012, various peasant organisations, socio-political movements and all the six state
governments levelled the widespread criticism that certain recommendations for conservation of
nature and environment were against the fundamental rights and livelihood of the local residents,
and would impede local development. The massive opposition compelled the MoEF to form the
HLWG on August 17, 2012 under the chairmanship of famous space scientist and planning
commission member Dr Kasturirangan to revisit the WGEEP report. The HLWG had 10
meetings and four field visits before it submitted its report on April 15, 2013.

In the context of pressure from the Supreme Court and National Green Tribunal, the MoEF did
not even consider the crucial aspect of whether the HLWG had addressed the concerns raised by
the local people. It hastily initiated steps to implement the HLWG recommendations and
declared 4,156 villages in six States (99 in Goa, 64 in Gujarat, 1576 in Karnataka, 123 in Kerala,
2159 in Maharashtra and 135 in Tamil Nadu) as Ecologically Sensitive Areas (ESA). The
intention was to impose the Indian Environment (Protection) Act on all these villages. This
bureaucratic step invited widespread resistance and protest actions from the local population,
which are still continuing.

About many aspects like conservation of forest areas, paddy fields and water bodies, there is no
effective recommendation in the WGEEP report. Out of the existing forest area of 69 million
hectares (mha), only 8.35 mha have been categorised as dense forests. More than 20 mha of
forests are monoculture and more than 28.8 mha are fragmented open forests with low tree
density. The teakwood plantations create hostile environment to both flora and fauna, make
forests arid, prevent the undergrowth and lead to desertification; they are thus the major reason
thrusting wild animals to human habitats in search of food and drinking water. But the WGEEP
report did not discuss these aspects and recommended replacing monoculture plantations with
natural forest, though it did recommend replacing monoculture plantations on private lands.

The preservation of paddy fields and water bodies in the entire Western Ghats area is not
addressed by both the reports. The erstwhile LDF government in Kerala had enacted the Paddy

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Fields And Water Bodies (Conservation) Act that prevents conversion of paddy fields to any
other use, and equivalent recommendations could have been made by WGEEP for all the six
states. The HLWG should well have recommended to the 14th Finance Commission a special
food security fund to encourage social cooperatives of peasants to modernise and mechanise
agriculture and animal husbandry and to establish agro-processing units and marketing networks.

The two reports are at best a bureaucratic exercise not based on any scientific assessment of the
human-environment relationship in the region. The limitation of both the reports is that a balance
between protection of the people’s livelihood and conservation of the environment is missing.
Thus now the progressive class and mass movements have the responsibility to rally all sections
of the people for removal of anti-people recommendations in these reports and incorporate
provisions favouring the people’s genuine developmental aspirations and livelihood along with
preservation of environment and biodiversity.

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CONCLUSION

India is endowed with diverse topographical zones and rich variety of flora and fauna. During the
course of industrialisation, urbanisation and other developmental initiatives, lot of changes occur
in the landscape which may sometimes become the cause of natural disasters like earthquakes,
flash floods, landslides, cloud burst etc.

In order to preserve certain regions/areas bestowed with unique plants, animals, terrains
Government has declared them as national parks, wildlife sanctuaries, etc,. Further, to minimise
the impact of urbanisation and other developmental activities, areas adjacent to such protected
areas have been declared as Eco-Sensitive Zones.

Ecologically Fragile land on the other hand as has been defined in the 2003 Act includes lands
which lay contiguous to reserved forests, vested forests and other forests owned by the
government. The objective of both eco-sensitive zones and Ecologically Fragile Lands are
similar, i.e., protection of areas outside the protected areas for the purpose of conservation of
biodiversity.

As has been rightly said in the Preamble of the Kerala forests (Vesting and Management of
Ecologically Fragile Lands) Act, 2003, it has become inevitable to conserve effectively the
Ecologically Fragile Lands, minimizing the reduction of degradation of these ecosystems and
biological diversity therein, which evolved through millions of years. However the conservation
should not be in violation of the basic rights of the people residing in such areas. A cooperative
conservation regime should be established in order to effectively manage ecologically fragile
lands. The lessons learned from the reaction to the Gadgil and Kasturirangan reports on
Ecologically Sensitive Areas should be considered while dealing with the aspect of conservation.

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BIBLIOGRAPHY

1. SANTOSH SHINTRE, Ecological and Environmental Reporting in India, Sakal, 2013.


2. MADIREDDI V. SUBBA RAO, Conservation of Forests, Wildlife and Environment,
2014.
3. PRAKASH KASHWAN, Democracy in the Woods- Environmental Conservation and
Social Justice in India, Tanzania and Mexico, Oxford University Press.
4. REPORT ON THE WESTERN GHATS ECOLOGY EXPERT PANEL, The Ministry of
Environment and forests Government of India.

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