Guidelines and Procedure for Forest Clearances under the Forest Conservation Act 1980
By Dr. Yashpal Singh, Chairman, The Wealthy Waste School India
Also See Forest Conservation Act, 1980-A Summary
The Forest Conservation Act which came into force on the 25th day of October 1980, extends to the whole of India. The exception provision for the non applicability in the State of Jammu and Kashmir has been deleted as per section 95 of the Jammu and Kashmir Reorganization Act 2019 and as per table-1 of the Fifth schedule of the said reorganization Act of 2019.
As per the provision of section 2 of the Forest Conservation Act 1980, no State Government or any authority shall issue any order to ‘de-reserve’ any Reserve Forest, permit use of forest land for non forest purposes, assign any forest land by way of lease to any private agency or any authority and permit clearance of naturally grown trees in a forest for reforestations without the prior approval of the Central Government. Non forest purpose has been defined in the Act and means the breaking up or clearing of any forest land or portion thereof for the cultivation of tea, coffee, spices, rubber, palms, oil bearing plants, horticultural crops, or medicinal plants or for any other purpose other than reforestation. Works related to or ancillary to conservation, development and management of forest and wild life namely the establishment of check posts,fire-lines, wireless communications and construction of fencing, bridges and culverts, dams, water holes, trench marks, boundary marks, pipelines or other like purposes will not be regarded as non forest purpose. It is important to note that the above works are non forest only if they relate to the conservation, management and development of Forest and Wild life.
Approval under Section 2 as above is accorded by the MoEF and CC as per the recommendation of the Forest Advisory Committee constituted by the Central Government. The said Committee is also empowered to deal with any matter related to the conservation of forests as may be referrals it by the Central Governments.
Penalties for non-compliance are covered under Section 3A of the Act and provide for simple imprisonment which may extend to fifteen days. The MoEF and CC has prescribed the Forest Conservation Rules in 2007 (as amended 2017). A quorum of three members has been prescribed for both the Forest Advisory Committee and the Regional Empowered Committee.
The rules have prescribed formats and procedures for application submitted.
- Form A is for seeking first time approval under the act.
- Form B is for seeking renewal of leases where approvals of the Central Government have already been obtained.
- Form C is for seeking permission for prospecting of minerals.
Applications For First Time Approvals or Renewal of Leases
- To be submitted by the user agency to the Nodal Officer of the concerned State Government or Union Territory. He is an officer not below the rank of conservator of forest authorized by the State Government to deal with forest conservation matters under the Act. The person organization or company or Department of the Central Government or the State Government requesting for such division, denotification or use of forest land for non forest purposes is designated as the user agency.
- The user agency will submit a copy of the application, along with the acknowledgement received from the Nodal Officer, to the concerned Divisional Forest Officer, District Collector, Concerned Regional Office of the MoEF and CC and to the monitoring cell of the MoEF and CC.
- The Nodal Officer, having satisfied himself on the completeness of the application and after satisfying himself that the proposal requires an approval under section 2 of the Act, shall send the proposal to the concerned DFO and the District Collector within 10 days of receipt of proposal. Incomplete proposals shall be returned within 10 days to the user agency and this time period and the time period taken by the user agency to resubmit the proposal shall not be committed for any future reference.
- The Divisional Forest officer shall examine the factual details and feasibility, certify the maps, carryout inspections and enumeration of trees and forward his findings in the specified formatto the Conservator of Forest within 30 days for Forest Lands up to 40 hectares, within forty-five days for areas between 40 hectares to 100 hectares and within 60 days for proposals involving Forest Land above 100 hectares.
- The District Collector shall complete the process of recognition and vesting of forest rights in accordance to the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forests Rights) Act 2006 for the entire forest land. The District Collector shall also obtain the consent of each Gram Sabha, having jurisdiction over the whole or part of the forest land on the division of such forest land and the compensatory and ameliorative measures and forward his findings to the Conservator of forests. This entire process shall be completed by the District Collector within the time period stipulated for grant of in-principle approval under the Act.
- The Conservator of Forests shall examine the factual details and feasibility, carryout site inspection in case the area of diversion is more than 40 Hectare and forward his recommendations to the Nodal Officer within 10 days for proposals involving less than 40 hectare and 30 days for proposals beyond 40 hectares.
- The Nodal officer, through the Principal Chief Conservator of Forest shall process and forward the proposal along with his findings and recommendations to the State Government or Union Territory Administration within 10 days for area up to 5 HA, 20 days for area between 5 and 40 Hectare, 25 days for area from 40 to 100 hectare and with 30 days for areas beyond 100 hectares.
- In case the State Government does not agree with the proposal, it shall intimate to the user agency within 30 days of the receipt of the proposal from the Nodal Officer. However, proposals from the Central Government or Central Government agencies shall be forwarded to the Central Government along with comments of the State/Union Territory.
- In case the State Government/Union Territory agrees in principle to the proposals it will forward all such cases to the Central Government within 30 days of the receipt of proposals from Nodal Officer. The State Government shall simultaneously inform the user agency of having forwarded the proposal to the MoEF and CC with recommendations. All proposals involving felling of trees on forest land for the purposes of using it for reafforestation shall be sent in the form of a working plan or working scheme or Management Plan. The time taken for transit of a proposals between various authorities at the State/Union Territory shall not exceed 20 days over and above the time period specified for processing.
- Proposals of less than 40 Hectare and all linear project, irrespective of the area shall be forwarded to the concerned Regional Officer while proposals beyond 40 hectare (other than linear project) shall be forwarded to the Secretary, MoEF and CC Proposals involving cleaning of trees for the purposes of reafforestation shall be sent to the concerned Regional Officer.
- In case of delays at the State Government/Union Territory Administration, the proposal shall be considered by the Central Government only if an explanation for the delay is submitted to the satisfaction of the Central Government together with action against the individual found responsible for the delay.
Application for prospecting of Mineralsin areas having not more than 10% crown density.
- Application for prospecting of minerals without felling of trees, construction of new roads or paths in mining blocks outside protected areas, within eco-sensitive zones or tiger corridors and having not more than 10% crown density have to be sent to the nodal officer by the user agency in a letter from with a geo referenced map indicating important locations with respect to prospecting holes, roads boundaries etc and a certificate that the proposal satisfies the criteria of submission in a letter from.
- The Nodal Officer, having satisfied himself that the proposal is in order, shall send the proposal to the Divisional Forest Officer within a period of 10 days. If the same is not found to order, the same shall be returned to the user agency within 10 days and these 10 days and the time taken not counted for any future reference.
- The Divisional Forest Officer on receipt of proposal from Nodal Officer shall authenticate the georeferenced map and certificate submitted by the user agency and forward the same within thirty days of its receipt to the State Government or Union Territory administration or to an officer not below the rank of the Nodal Officer as authorized by the State Government/Union Territory to finally dispose such proposals.
- The State Government/Union Territory or the Officer authorized as above by the State Government / Union Territory shall finally grant permission for the prospecting of minerals or reject the same within 25 days of receipt of the proposal from the DFO and communicate the same to the DFO within next five days (Sub rule 5 of the rules does not speak of permissions to other proposed activities like roads etc. but only speaks of prospecting).
Applications for Prospecting where the Crown density is not more than 40%
- Applications involving permissions for prospecting without felling of trees, construction of new roads or paths in mining blocks outside protected areas, within eco-sensitive zones or tiger corridors and having not more than 40% crown density would also have to be made to the Nodal Officer who will return it in 10 days if not found to order or will forward if to the DFO within 10 days.
- The DFO shall send the proposals back to the Nodal Officer within 30 days after authenticating the geo referenced map and the certificate.
- The Nodal Officer through the Principal Chief Conservator or Forest shall forward the proposal with recommendations to the State Government/Union Territory admin within 10 days for areas up to 5 Hectare, 20 days for areas between 5 and 40 hectare, 25 days for areas from 40 to 100 hectare and within 30 days for areas beyond 100 Hectares.
- In case the State Government decides not to agree with the proposed it may intimate the user agency within 30 days of receipt of proposal from the Nodal Officer. Proposals from the Central Government/Central Government undertaking would however have to be forwarded to the Central Government with comments before such refusal. In case the State Government/Union Territories agrees to the proposals it will forward the same to the Central Government within 30 days of receipt from Nodal officer and inform the User agency about forwarding the application to the MoEF and CC.
- Proposals involving forest land upto 40 hectare, all proposals related to linear projects and proposals involving clearing of trees for the purpose of using it to reafforest shall be forwarded by the State Government/Union Territory to Regional Officer of the MoEF and CC. Proposals more than 40 Hectare other than linear projects shall be sent to the Secretary Environment Forests and CC, Government of India.
- Delays in time will have to be accounted for and explained before the Central Government considers proposals where the processing times have been exceeded.
Processing of Proposals at Central Government
The Regional Officer of MoEF&CC shall–
- Determine completeness of proposal within 5 working days
- Return incomplete proposals within 05 days to the concerned State Government/ Union Territory.
- After examining the proposals which involve less than 5 Hectare of Forest Land (except mining, encroachments and hydel project) and which are complete in all respects grant in principle approval or reject the same within 25 days of its receipt from the State Government/Union Territory and communicate the same within the next five days.
- Sub clause 2(b) of rule 7 provides that if a proposed involves forest land of more than 100 hectare or renewal of lease, the Regional Officer shall within 45 days inspect the forest land and prepare a site report. A site inspection by the Regional Officer is also mandated for prospecting proposals where the areas of forest land required for construction of Roads, paths, drilling of boreholes and all such non forest purpose is more than 100 hectare.
- The Regional Officer shall refer all proposals from 5 Hectare to 40 Hectare as received by it, all proposals upto 5 hectare which involve mining, encroachments and hydel projects and all proposals related to linear projects which are complete in all respects along with site inspection report where necessary to the Regional Empowered Committee within 10 days of receipt from the State Government and where to be accompanied by the site inspection report within 5 days of the receipt of the site inspection report.
The Regional Empowered Committee shall-
- Examine proposal submitted to it within 30 days of receipt and after due enquiry grant in principle approval (other than proposals related to mining, encroachment and Hydel project) or reject the same and the Regional Officer shall communicate the decision of the Regional Empowered Committee within the next five working days.
- Within 30 days examine the proposals related to mining, encroachments and Hydel projects involving diversion of Forest Land up to 40 hectare and tender its advice to the Regional Officer and this advice would include restrictions and condition that would minimize adverse environmental impact. The Regional Office would forward the advice so received to the Secretary MoEF and CC within 5 days (with an additional 05 days for format) of the receipt of the same from the Regional Empowered Committee.
- The Central Government after considering this advice and after making such enquiry as deemed necessary shall grant in principle approval, or reject the proposal within 30 days of its receipt from the Regional Office and Communicate to the State Government/Union Territory within the next 05 days.
- All proposals involving clearing of trees in forest land for the purpose of using it for the purposes of afforestation shall be disposed off by the Regional Office within 60 days of receipt from the State Government after ensuring that the Final decision is in conformity with the National Forest Policy, working plan guidelines and other relevant rules and guidelines of the Government of India.
- The Regional Office would however seek prior clearance of the Ministry of Environment, Forests and climate change whenever a proposal involves clear felling of forest land having crown cover of 40% irrespective of the area involved or clear felling of forest area of size more than 20 hectare in the plains and 10 hectares in the hilly Regions.
The Ministry of Environment and Forest shall
- Determine the completeness of the proposal within 10 days and return incomplete proposals to the concerned State Government/Union Territory Administration within this period of 10 days. This time period and the time taken by the State Government for resubmission shall not be counted for any future reference.
- Within 10 days of the receipt of the proposal complete in all respects request the concerned Regional Officer to inspect the forest land if the area to be diverted is more than 100 hectare or the proposal involvesrenewal of lease and submit its report with 45 days. However, prospecting proposals may only involve a site inspection if the forest land actually required for construction of roads, paths drilling of bore holes and all such non forest purposes is more than 100 Hectare. The time taken by the Regional Office to submit its report will not be more than 10 days over and above the 45 days as provided for site inspection.
- Refer every proposal which is complete in all respects to the committee (FAC) for its advice which shall be provided within 30 days of receipt of the said proposals.
- On receipt of the advice from the Committee and after due enquiry within 30 days, grant in principle approval with conditions as it may stipulate, or reject the same and communicate to the State Government/ Union Territory administration within the next 05 days.
The Forest Advisory Committee shall consider the following matters before giving its advice
- Whether the forest lands proposed to be used for non-forest purposes form part of a nature reserve, national park, wildlife sanctuary, bio sphere reserve or form part of the habitat of any endangeredspecies of flora or fauna or of an area lying in severely eroded catchment.
- The proposed use of diverted forest land whether it is for agriculture or for rehabilitation of persons displaced from their residences by reason of any river valley or hydroelectric project.
- Whether the concerning State Government/ Union Territory has certified that it has examined all possible alternatives and no other alternative is feasible and also that the needed area is minimum for the purpose.
- Whether the State Government/Union Territory has undertaken to provide at its cost, acquisition of land of an equivalent area and afforestation of land of an equivalent area and afforestation thereof.
- Whether the per unit requirement of forest land is significantly higher than the national average for similar projects.
- Whether the State Government/Union Territory Administration has considered all issues having direct and indirect impact of the diversion of Forest land on forest wildlife and environment.
Grant of Final Approval
- Nodal officer within 05 days of receipt of the In-principle approval endorse a copy of the same to the concerned Divisional Forest Officer and the Conservator of Forests.
- Within 10 days of receipt of the copy of the In principle approval, the Divisional Forest Officer shall prepare and communicate to the user agency a demand note containing item wise compensatory levies like compensatory afforestation, Net Present Value, Cost of implementation of catchment area treatment plan or wild life conservation plan etc. to be required to be paid by the user agency along with a list of documents required from the user agency in compliance to the conditions of the in principle approval.
- The user agency within 30 days of receipt of demand note and list of documents required shall submit a compliance report to the demand note to the Divisional Forest Officer.
- The Divisional Forest Officer shall determine the completeness of the compliance report within a period of 15 days of its receipt from the user agency and forward the compliance report to the Conservator of Forest within this period. In case the compliance report is in complete, the DFO shall communicate the shortcomings or the short comings in the compliance report to the user agency within these 15 days.
- The Conservator of Forests shall determine the completeness of the report in 15 days from its receipt from the Divisional Forest Officer. In case the compliance report is complete, the Conservator of Forests shall forward this report to the Nodal Officer along with the report received from the District Collector with regards to the completion of process of recognition and vesting of forest rights and consent of each Gram Sabha. In case the compliance report is found in complete, the Conservator of Forests shall communicate the shortcomings or short comings in the compliance report to the user agency and the Divisional Forest Office within a period of 15 days of its receipt from the Divisional Forest Officer.
- The Nodal officer will examine the completion of the report sent to him by the Conservator of Forests within 15 days of its receipt. In case it is found complete, it shall be forwarded to the State Government/ Union Territory Administration within these 15 days or, if so authorized by the State Government/Union Territory Administration, the Nodal Officer may forward it directly to the MoEF and CC or the Regional Officer as the case may be. In case the report is found incomplete by the Nodal Officer, he shall communicate the short comings or shortcomings in the compliance report to the user agency, the Conservator of Forests and the Divisional Forest Officer within a period of 15 days of its receipt from the Conservator of forests.
- The State Government or the Union Territory (Administration) shall examine the report received from the Nodal Officer for its completeness within 15 days of its receipt and on finding it complete shall forward it to the MoEF and CC or the Regional Officer as the case may be within 15 days of its receipt from the Nodal Officer. In case the same is found incomplete it shall communicate the short comings to the user agency, the Nodal officer, the Conservator of Forests and the Divisional Forest Officer within 15 days of its receipt from Nodal Officer.
- The MoEF and CC will examine the report for completeness within 15 days and on finding it complete accord the final approval under the Act and communicate, within these 15 days, such approval to the State Government or Union Territory Administration as the case may be. In case the report is found to be incomplete the short comings or short comings in the compliance report shall be communicated to the State Government or the Union Territory Administration as the case may be and to the Nodal Officer and the user agency within a period of 20 days of the receipt of the compliance report.
- The report, on fulfillment of short comings in the compliance report, shall be reprocessed as per the procedures specified for the compliance report.
- In case the compliance to the conditions in the in-principle approval is awaited from the State Government/Union Territory as the case may be for more than 05 years, the in-principle approval may be summarily revoked.If the user agency is still interested in the project after its revocation, it may submit a fresh proposal which shall be considered de-novo. However, for valid and cogent reasons if the user agency, State Government or the Union Territory administration as the case may be is not able to comply with one or more conditions of the in-principle approval for availing final approval, the Central Government may extend the period of compliance of such conditions by a further period as it deems fit.
- If the validity of a mining lease expires before a compliance report to the conditions of the in-principle approval is submitted by the State Government/Union Territory Administration as the case may be or before grant of final approval by the Central Government within 05 years from the date of the in-principle approval, there may be no need for submission of a de-novo proposal but while submitting the compliance report the State Government or the Union Territory administration as the case may be, may seek final approval for the original period of the mining lease for which in principle approval has already been accorded and also renewal of mining lease for a period as specified by the State Government/Union Territory Administration as the case may be but not exceeding 25 years.
A compliance to statutes, circulars or directives, as applicable to the proposal, which have come into force after the grant of in-principle approval shall also be submitted to the Central Government along with the compliance to conditions stipulated in the in principle approval.
Apart from granting final approval for the original period of the mining lease, the Central Government on the advice of the Forest Advisory Committee or the Regional Empowered Committee and after making due enquires, grant final approval to the Proposal of the State Government/Union Territory Administration, as the case may be for renewal for a period as specified by the Central Government not exceeding twenty years with appropriate conditions or reject the same.
These procedures will also apply if the in Principle approval has been accorded on a day prior to 05 years from the date of expiry of the lease and for valid and cogent reasons it has not been possible for the user agency or the State Government or Union Territory Administration to comply with one or more conditions stipulated in the in principle approval and obtain final approval within five years of the in principle approval provided that such in principle approval has not already been summarily revoked by the Central Government. The State Government/Union Territory Administration will for these cases, have to submit reason or reasons for delay in compliance to conditions/stipulated in the in principle approval.
These procedures would also apply where a mining lease expires or has already expired within a period of 10 years from the date of in- principle approval even if final approval has been granted prior to expiry of mining lease. Provided that here, instead of a compliance report to the in principle approval, a compliance report to the final approval during the validity period of the original lease period shall be submitted to the Central Government by the State Government, Union Territory Administration.
- Cost benefit analysis.
- Rehabilitation Plan.
- Draft undertaking regarding cost of compensatory afforestation as well as cost for protection and regeneration of safety zone to be submitted on behalf of user agency.
- Report on type of Forest, Legal status, Density of vegetation, crown density species wise and dia meter wise enumeration of trees.
- Report on vulnerability of Forest area to erosion
- Report on details and status with reference to location in National Park, Wild life sanctuary, biosphere reserve, tiger reserve, elephant corridor etc.
- Report on rare/endangered/unique species of flora and fauna found in the area.
- Report on study of alternatives, requirement of land being unavoidable and barest minimum for the project.
- Report on Compensatory afforestation including detailed compensatory afforestation scheme with total financial outlay.
- Mining plan for major minerals/CMPDI plan with subsidence analysis reports.
- Report onthe conformity to current laws and procedures.
- Report on non-availability of the same mineral in surrounding area as certified by District Mining Officer.
- A report on the all approvals/leases held by the company in the source state along with current status.
- Impact of project on land use, permanent or temporary change.
- Report on methodology to be followed for prospecting.
- Compliance status to approvals received in the past.
- Working Plan
- Detailed compensatory afforestation scheme.
–Guidelines for seeking recommendations of the Standing Committee of National Board for Wild Life for activities in protected areas