Full Judgment Text
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PETITIONER:
STATE OF BIHAR
Vs.
RESPONDENT:
BANSHI RAM MODI & ORS.
DATE OF JUDGMENT07/05/1985
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
SEN, A.P. (J)
CITATION:
1985 AIR 814 1985 SCR Supl. (1) 345
1985 SCC (3) 643 1985 SCALE (1)1201
CITATOR INFO :
D 1987 SC1073 (17,18)
D 1988 SC2187 (35)
ACT:
Forest (Conservation) Act, 1980, s. 2(ii)-
Interpretation of-Mining lease granted prior to coming into
force of the Act-Minerals not specified in lease found in
the area-Whether permission of Central Government necessary
for winning new minerals from the same area.
HEADNOTE:
Clause (ii) of Section 2 of Forest (Conservation) Act,
1980 (for short, the Act) which came into force on October
25, 1980, provides that notwithstanding anything contained
in any other law for the time being in force in a State, no
State Government or other authority shall make, except with
the prior approval of the Central Government, any order
directing that any forest land or any portion thereof may be
used for any non-forest purpose. Explanation to section 2 of
the Act defines "non-forest purpose" as breaking up or
clearing of any forest land or portion thereof for any
purpose other than reafforestation.
Respondent No. 1, who had been granted a mining lease
in the year 1966 for a period of 20 years for mining and
winning mica in respect of 80 acres of land in accordance
with Mining Concession Rules, 1960 came across two other
minerals, namely, felspar and quartz during the course of
mining operations. Under the conditions of the lease,
Respondent No. I applied to the State Government to include
the said minerals also in the earlier lease deed so that he
could win and dispose of these minerals also. Thereupon, the
State Government and the lessee executed a Deed of
Incorporation on April 6, 1983 allowing the lessee to win
and carry away felspar and Quartz after paying the required
royalty from the area over which he had been granted lease
for mining mica. On August 8, 1983 the Divisional Forest
Officer wrote a letter to the lessee stating that the
impugned mining area was situated within the reserved forest
area and that, since previous approval of the Central
Government had not been obtained for inclusion of felspar
and quartz in the mining lease as required by the Act.
Respondent No. I could not be permitted to win felspar and
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quartz even through the Deed of Incorporation had been
executed. Aggrieved by the said letter, Respondent No. I
filed a writ petition in the High Court contending that the
provisions of the Act were not applicable to a case where
the lease had been entered into prior to the coming into
force of the Act and that there was no need to break up or
clear any forest land other than the area of only 5 acres of
land where mining operations were being carried on. The High
Court allowed the writ petition. Hence this appeal by the
State.
346
Disposing of the appeal,
^
HELD: (1) It is clear from a reading of clause (ii) of
section 2 of the Act and the Explanation to that section
that these two parts Or the section mean that after the
commencement of the Act I o fresh breaking up of the forest
land or no fresh clearing of the forest on any such land can
be permitted by any State Government or any authority
without the prior approval of the Central Government. But if
such permission has been accorded before the coming into
force of the Act and the forest land is broken up or cleared
then obviously the section cannot apply. [350 D-F]
(2) In the instant case, it is not disputed that in an
area of five acres out of eighty acres covered by the mining
lease the forest land had been dug up and mining operations
were being carried on even prior to the coming into force of
the Act. If the State Government permits the lessee by the
amendment of the lease deed to win and remove felspar and
quartz also in addition to mica it cannot be said that the
State Government has violated section 2 of the Act because
thereby no permission for fresh breaking up of forest land
is being given. The result of taking the contrary view will
be that while the digging for purposes of winning mica can
go on, the lessee would be deprived of collecting felspar or
quartz which he may come across while he is carrying on
mining operations for winning mica. That would lead to an
unreasonable result which would not in any way subserve the
object of the Act. [350 G-H; 351 A]
(3) While before granting permission to start mining
operations on a vergin area section 2 of the Act has to be
complied with, it is not necessary to seek the prior
approval of the Central Government for purposes of carrying
out mining operations in a forest area which is broken up or
cleared before the commencement of the Act. [351 B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2439 of
1984.
From the Judgment and Order dated 18.11.1983 of the
Patna High Court in W.P. No. 1014 of 1983.
Jaya Narayan and Pramod Swarup for the Appellant.
Gaur G. Ray, A.K Nag, Mrs. N. Bakshi, Anil Dev Singh,
P.P. Gupta and R.N. Poddar, for the Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. Respondent No. 1 Banshi Ram Modi was
granted a mining lease by the State of Bihar for mining and
winning mica in respect of an area of eighty acres of land
in the
347
villages of Meghatri and Bishuntikar in the district
Hazaribagh, which formed part of reserved forest area in the
year 1966. A mining A lease deed was executed in that
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connection by the lessee and the State Government on April
25, 1966 in accordance with the Mineral Concession Rules,
1960. The lease deed was registered on May 30, 1966. The
period of lease was fixed at 20 years. The said lease will
expire on April 24, 1986 unless it is renewed in accordance
with law.
During his mining operations which are admittedly now
being carried on in about five acres only Respondent No. 1
came across two other minerals namely felspar and quartz
which are commonly known to be associated minerals of mica.
Under the conditions of the lease the lessee had to report
to the State Government the discovery in the leased area of
any mineral not specified in the lease within sixty days of
such discovery and if any mineral not specified in the lease
was so discovered in the leased area he could not win and
dispose of such mineral unless such mineral was included in
the lease or a separate lease was obtained therefor.
Accordingly, on discovery of felspar and quartz in the area
where the mining operations were being carried on for mica,
Respondent No. I applied to the State Government to include
the said minerals also in the lease executed on April 25,
1966, so that he could win and dispose of these minerals
also. On the State Government agreeing to do so, a Dead of
Incorporation dated April 6, 1983 was duly executed by the
parties to the original lease. By the said Deed, felspar and
quartz were included in the original lease as minerals which
the lessee could win and carry away after paying the
required royalty from the area over which he had been
granted lease for mining mica. All other conditions of the
lease including the period of lease remained the same. In
fact it was not a new mining lease for a fresh period. The
lease is to exp re on April 24, 1986 as originally
stipulated.
It may be mentioned here that the State Government did
not obtain the previous approval of the Central Government
for the inclusion of the two new minerals in the original
lease under clause (ii) of section 2 of the Forest
(Conservation) Act, 1980 (Act 69 of 1980) (hereinafter
referred to as ’the Act’) which was deemed to have come into
force on October 25, 1980. The relevant part of section 2 of
the Act reads thus:-
"2. Restriction on the dereservation of forests or
use of forest land for non-forest purpose-
Notwithstanding
348
anything contained in any other law for the time being
in A force in a State, no State Government or other
authority shall make, except with the prior approval of
the Central Government, any order directing,-
... ... ... ....
(ii) that any forest land or any portion thereof may
be used for any non-forest purpose.
Explanation-For the purpose of this section ’non
forest purpose’ means breaking up or clearing of any
forest land or portion thereof for any purpose other
than reafforestation."
It would appear that after the coming into force of the
Act the Government of India (Ministry of Agriculture) wrote
to the Chief Secretary to the Government of Bihar drawing
his attention to the provisions of the Act, and the
prohibitions contained therein. Perhaps, as a result of the
said letter the Divisional Forest Officer, Kodarma Forest
Division, Kodarma, within whose jurisdiction the mining area
of Respondent No. 1 was situated, wrote to Respondent No. I
on August 8, 1983 stating that the mining area was situated
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within the reserved forest area and that since previous
approval of the Central Government had not been obtained for
inclusion of felspar and quartz in the mining lease as
required by the Act, Respondent No. 1 could not be permitted
to win felspar and quartz, even though the Deed of
Incorporation had been executed.
Aggrieved by the said letter of the Divisional Forest
Officer, Respondent No. I filed a writ petition on the file
of the High Court of Patna (Ranchi Bench) contending that
the provisions of the Act were not applicable to a case
where the lease had been entered into prior to the coming
into force of the Act and that there was no need to break up
or clear any forest land other than the area where mining
operations were being carried on. The High Court after
hearing the parties allowed the writ petition holding that
the Act had no application to the instant case and he could
win and take away felspar and quartz from the mining area.
But it however made clear that if for winning felspar and
quartz the lessee was required to break up or clear any
forest land other than the area required for mining to win
mica, he could not do so without obtaining the previous
approval of the Central Government under the Act.
349
Aggrieved by the judgment of the High Court, the State
of Bihar has filed this appeal by special leave.
In this case it has to be mentioned that the learned
counsel for Respondent No. 1 has stated that Respondent No.
1 would not in any event carry on any mining operations on
any area other than the five acres of land which had already
been utilised for non-forest purpose even before the Act
came into force by breaking up the land, for the purpose of
winning felspar or quartz. It has also to be mentioned here
that before the High Court, the learned Standing Counsel for
the Central Government had stated that the Act had no
application to leases granted prior to the coming into force
of the Act-and that there is no repudiation of that stand
before us by the Central Government. In view of the above
statements the only question which remains to be considered
in this appeal is whether the mining operations which are
being carried on in the five acres of land for the purpose
of winning felspar and quartz, are illegal by reason of the
absence of the previous approval of the Central Government
granted under the Act.
In order to appreciate the contentions of the parties
on the limited question before us, it is necessary to
ascertain the object of the Act. As its Statement of Objects
and Reasons indicates, the Act was passed with a view to
checking deforestation which had been taking place in the
country on a large scale and which had caused ecological
imbalance and thus led to environmental deterioration. It is
well-known that breaking up of the soil or the clearing of
the forest land affects seriously reafforestation or
regeneration of forests and therefore such breaking up of
the soil can only be permitted after taking into
consideration all aspects of the question such as the
overall advantages and disadvantages to the economy of the
country, environmental conditions, ecological imbalance that
is likely to occur, its effects on the flora and the fauna
in the area etc. The Act having stated in section 2 thereof
that no dereservation of forests or use of forest land for
non-forest purposes can be permitted without the previous
approval of the Central Government has further provided for
the constitution of an Advisory Committee to advise the
Central Government on all cases in which the question of
granting permission required by section 2 of the Act arises.
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The Act is intended to serve a laudable purpose and it has
got to be enforced strictly for the benefit of the general
public. The Act applies not merely to cases of mining lease
granted in respect of areas within the reserved forests
350
but to all cases where forest land is sought to be used for
non-forest A purposes.
The question before us is a narrow one and that is
whether in the case of a mining lease which has been granted
for winning a certain mineral prior to the coming into force
of the Act, if the lessee applies to the State Government
after the coming into force of the Act for permission to win
and carry any new mineral from any part of a forest area
which is already utilised for non-forest purposes by
carrying out mining operations before the coming into force
of the Act, the prior approval of the Central Government has
to be obtained under section 2 of the Act for the purpose of
granting such permission.
The relevant parts of section 2 of the Act which have
to be construed for purposes of this case are clause (ii) of
and the Explanation to that section. Clause (ii) of section
2 of the Act provides that notwithstanding anything
contained in any other law for the time being in force in a
State, no State Government or other authority shall make,
except with the prior approval of the Central Government,
any order directing that any forest land or any portion
thereof - may be used for any non-forest purpose.
Explanation to section 2 of the Act defines "non-forest
purpose" as breaking up or clearing of any forest land or
portion thereof for any purpose other than reafforestation.
Reading them together, these two parts of the section mean
that after the commencement of the Act no fresh breaking up
of the forest land or no fresh clearing of the forest on any
such land can be permitted by any State Government or any
authority without the prior approval of the Central
Government. But if such permission has been accorded before
the coming into force of the Act and the forest land is
broken up or cleared then obviously the section cannot
apply. In the instant case it is not disputed that in an
area of five acres out of eighty acres covered by the mining
lease the forest land had been dug up and mining operations
were being carried on even prior to the coming into force of
the Act. If the State Government permits the lessee by the
amendment of the lease deed to win and remove felspar and
quartz also in addition to mica it cannot be said that the
State Government has violated section 2 of the Act because
thereby no permission for fresh breaking up of forest land
is being given. The result of taking the contrary view will
be that while the digging for purposes of winning mica can
go on, the lessee would be deprived of collecting felspar or
quartz which he may come across
351
while he is carrying on mining operations for winning mica.
That would lead to an unreasonable result which would not in
anyway A subserve the object of the Act. We are, therefore,
of the view that while before granting permission to start
mining operations on a virgin area section 2 of the Act has
to be complied with it is not necessary to seek the prior
approval of the Central Government for purposes of carrying
out mining operations in a forest area which is broken up or
cleared before the commencement of the Act. The learned
counsel for Respondent No. 1 has also given an undertaking
the Respondent No. 1 would confine his mining operations
only to the extent of five acres of land on which mining
operations have already been carried out and will not fell
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or remove any standing trees thereon without the prior
permission in writing from the Central Government. Taking
into consideration all the relevant matters, we are of the
view that Respondent No. I is entitled to carry on mining
operations in the said five acres of land for purposes of
removing felspar and quartz subject to the above conditions.
With the above modification, the judgment of the High
Court is affirmed. The appeal is accordingly disposed of but
with no order as to costs.
M.L.A Appeal disposed.
352