Jaipur: In a move to further dilute the 2019 order of the Ministry of Environment, Forest and Climate Change (MoEFCC) that facilitated 'temporary' use of forest land by private persons even without the consent of the Union government, the Andaman and Nicobar forest department has issued an order to constitute a committee that would 'recommend' the divisional forest officer (DFO) to grant permission for such 'temporary' activities.

The order dated February 28, 2020, states that the committee would comprise of a deputy commissioner of the territory at the revenue department as its chairman, head of the department of the requisitioning department and the DFO as its members. The DFO of the area would decide on the proposal "subject to" the recommendation of this committee.

Environmentalists have termed this order illegal and a clear case of non-application of mind.

Ritwick Dutta, environment lawyer and founder of Legal Initiative for Forest and Environment (LIFE) says, "The same person [DFO] is at two places. The union territory administration has formed a committee where the person responsible to take a decision [DFO] will make a recommendation to his/her own self [DFO as member of the committee] This is absurd."

The fundamental problem with the committee is that its chairman, who has to 'recommend', is a coordinating authority among various departments in the district, which indicates that the recommendation would be binding upon the DFO.

"In any district, the district magistrate or deputy commissioner (as called in Andaman and Nicobar islands) is the head and all authorities are below him/her," said Dutta.

Inclusion of officials from the revenue department and the requisitioning department (that would be using the forest land, for instance, a private person applies to seek land for setting up a tent for an event over the forest land, therefore, the tourism department would be the requisitioning department in that case) to 'recommend' use of forest land for temporary purpose also emerges as a clear case of conflict of interest.

"There is no denial that the revenue department has a role in the forests. In fact, under the Indian Forest Act, 1927 and the Wildlife Protection Act, 1972, it's the revenue department that notifies the wildlife sanctuaries and national parks but the point is that why a user agency [the requisitioning department] would deny the usage of forest land," added Dutta.

He suggests that the committee should have comprised of the forest department, NGOs or some independent institutions to scrutinise the proposal.

Speaking to The Wire, Sudharshan Bhandari, PCCF (principal chief conservator of forests) at the Andaman and Nicobar forest department, who has issued the order, insisted that the committee's recommendation would not be binding on the DFO. "It [decision to constituting a committee] has been issued as per [Centre's] order but the final say would be of DFO only," said Bhandari.

When asked if the inclusion of the revenue department and the requisitioning department would result in a conflict of interest, he replied, "That would be handled by the district, I can't comment on it."

Andaman and Nicobar forest ... by The Wire on Scribd

The Andaman and Nicobar islands is an ecologically sensitive region with rich biodiversity. As per a recent publication of the Zoological Survey of India, the islands comprise of about 0.25% of the country’s geographical area and is home to 11,009 species.

Last month, the Uttarakhand forest department had issued a proposal to transfer 778 hectares of Rajaji National Park and Narendra Nagar Forest division to the Kumbh Mela Samiti in order to initiate ‘temporary’ construction for the Kumbh Mela scheduled in 2021.

This proposed area of the national park intended to remain with the Kumbh Mela Samiti for over nine months, beginning from September 1, 2020, to May 31, 2021.

These moves by the state forest departments are a consequence of an October 2019 order issued by the MoEFCC that permitted the temporary use of forest land – which is not a part of a protected area – without the prior approval of the Central government.

The order had also authorised the DFO to have jurisdiction over the proposed forest land to accord permission for such temporary use.

In January 2020, MoEFCC had added that temporary use of forest land can only be permitted if it is ensured that such use of forest land is 'unavoidable' for public purpose and there is no 'alternate' non-forest land available for the proposed temporary use.

The time period for temporary use of forest land was fixed for a period not exceeding two weeks.

This drew severe criticism from the environmentalists, who claimed that the order was a 'clean chit' to violate the Forest Conservation Act, 1980.

Questioning the 2019 MoEFCC order, Dutta says, "The Forest Conservation Act has used the word 'non-forest use' but the law doesn't make a distinction between 'temporary' and 'permanent' use. Therefore, the ministry delegating the power to permit 'temporary' use of forest land for a non-forest purpose to state government is in violation of the Act."

He also pointed out that the order has not included breaking up or clearing of forest land while granting it for temporary use, something which is not avoidable.

"For instance, if one has to set up a tent or make parking area in a forest, the person would be required to clear the area, mark it and drill holes. In such a case, breaking and clearing of land is inevitable," said Dutta. This would defeat the purpose of the Forest Conservation Act.

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