The Ministry of Environment, Forest and Climate Change has notified the Forest (Conservation) Rules, 2022 (“Rules”) in supersession of Forest (Conservation) Rules, 2003. The Rules essentially lay down the procedural framework to obtain prior approval from the Union Government for the use of forest land for non-forest purposes as provided in the Forest (Conservation) Act, 1980 (“Act”). Such non-forest purposes may include diversion of forest land for a commercial or infrastructure project, de-reservation of land recognized as forest or assignment of forest land to any private person by way of lease. The Rules constitute different authorities at the Union and State / Union Territory level to advise the Union Government in matters involving use of forest land for non-forest purposes. These authorities will advise the Union and State Governments or Union Territory Administration to accept or reject such proposals.
Since such proposals result in the reduction of forest cover in India, the Union Government had earlier provided a framework for compensatory afforestation, wherein afforestation was done on another land in lieu of the loss of forest cover due to the use of forest land for non-forest purposes. The mechanism involved inter alia payment of compensatory afforestation levies by the person making such proposals and handing over of another land identified for compensatory afforestation to the relevant forest department. The size of the land to be handed over was determined as per the Rules. The Union Government was not expected to grant final approval for the use of forest land unless the requirement for compensatory afforestation was fulfilled.
The Rules have introduced certain important aspects related to compensatory afforestation, some of which are described below:
The Rules have allowed compensatory afforestation to be undertaken in States or Union Territories other than the one in which forest land is being diverted, de-reserved or leased. As per the Rules, compensatory afforestation can be done in another State or Union territory (having forest cover less than twenty per cent of its total geographical area) in case the forest land to be diverted is in a hilly or mountainous State or Union territory (having forest cover of more than two-third of its geographical area) or in any other State or Union territory (having forest cover of more than one-third of its geographical area). Earlier, there was no mechanism providing for this option. For instance, for forests being diverted in Andaman & Nicobar Islands, compensatory afforestation can be undertaken in Haryana or Punjab. This activity will be subject to the consent of relevant State Governments or Union Territory Administrations. This provision seems to satisfy the concerns raised by some States and Union Territories regarding the effect on their projects in cases where diversion of forest land was not possible due to the lack of land for compensatory afforestation.
These Rules have also introduced an accredited compensatory afforestation mechanism. The purpose is to encourage people to raise vegetation on its land and sell it to persons who need to meet compensatory afforestation targets under the Act. This policy is expected to act as an incentive for persons to develop plantations and undertake agro-forestry.
Accredited compensatory afforestation means a system of proactive afforestation which can be used instead of fulfilling obligations for compensatory afforestation. To avail this, a person should have: (a) established afforestation over land on which the Act is not applicable and is free from all encumbrances; (b) planted trees having canopy density of 0.4 or more and those trees are at least five years old; and (c) afforested over one-hectare area with 0.4 or more canopy density.
The Rules permit accredited compensatory afforestation to be used in lieu of compensatory afforestation (which involves various steps including handing over of land to forest department and payment of levies) if it: (a) covers a block of at least ten hectares and has been fenced as per specified norms; (b) is situated around land declared or notified as forest, protected area, tiger reserve or is within a recognized tiger or wildlife corridor; and (c) is earned out of vacation of non-forest lands on account of voluntary relocation of a village from a national park, wildlife sanctuary, tiger reserve or recognized tiger or wildlife corridors.
The Rules further provide that such area shall be handed over to the forest department of the relevant State Government or Union Territory Administration free from all encumbrances. It should also be notified as protected forest under Indian Forest Act, 1927 before the final approval is granted under the Act. The Union Government will introduce detailed guidelines required for implementation of this mechanism.
The Rules have also permitted a State Government or Union Territory Administration to create a land bank that will consist of land identified or earmarked for compensatory afforestation. Moreover, lands covered under accredited compensatory afforestation mechanism may also be included in the land bank.
The Union Government has stated that these Rules are intended to streamline the process to obtain prior approval for the use of forest land for non-forest purposes and to reduce the time and costs involved in this process. However, the Rules have also been criticized by activists and experts on various grounds. It is noteworthy that these Rules have introduced new aspects in relation to compensatory afforestation intending to make it more attractive, practical, and legally compliant. The focus on compensatory afforestation in these Rules indicates that it is a critical area of concern for the Union Government, which is mindful that there is a need for improving the mechanism. However, it remains to be seen as to how the Rules are implemented to remove the challenges and shortcomings in the earlier process to improve the forest cover in the country through compensatory afforestation.
This article was originally published in Mondaq on 27 July 2022 Co-written by: Nawneet Vibhaw, Partner; Himanshu Pabreja, Associate. Click here for original article
Contributed by: Nawneet Vibhaw, Partner; Himanshu Pabreja, Associate
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