Andhra HC (Pre-Telangana)
Hyderabad Abrasives And Minerals, ... vs The Govt. Of A.P. Forest Department, ... on 26 December, 1989
Equivalent citations: AIR1990AP257, AIR 1990 ANDHRA PRADESH 257, (1990) 1 ANDHWR 240, (1990) 1 APLJ 177, (1990) 1 ANDH LT 180
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
ORDER Jeevan Reddy, J.
1. This Writ Appeal was referred to Full Bench by a Division Bench mainly because it disagreed with certain observations made by another Bench in W. A. No. 795 of 1985, disposed of on 20-8-1985. Since the reference of this matter to Full Bench, however, the decision in W. A. No. 795/85 has been overruled by a Full Bench in G. Raghava Das v. Government of Andhra Pradesh , Even so, having regard to the importance of the question raised, namely, interpretation of Section 2 of the Forest (Conservation) Act, 1980, we proceeded to consider the matter.
2. The appellant (writ-petitioner) was granted a mining lease for Laterite, for a period of 20 years, over an extent of 318 Acres in Peddamaredimille Reserve Forest under G.O. Ms. No. 352 dated 26-3-1974. Laterite is a major mineral. The lease is governed by the Mines and Minerals (Regulation and Development) Act, 1957, and the Rules made thereunder. As required by the Act and the Rules, an agreement was executed by the appellant and the District Collector, East Godavari, representing the Government, on 1-6-1974. Later on, the appellant laid an approach road to the area leased out. On 28-2-1982 he made a representation to the Dist. Forest Officer, Kakinada, that an area of 10 to 15 Acres on the northern-most part of the hill-top has been selected by him to commence mining operations, and that he may be permitted to cut 849 trees standing in the said area to enable him to carry on the mining operations. The said area was inspected by the Range Officer, Rampachodavadam. He reported that the total area selected by the appellant for commencing J mining operations was 12.5 hectares, and that 849 trees have to be felled for the purpose. The tree growth was valued at Rs. 2,15,828.09 Ps. On receiving the report, the District Forest Officer, Kakinada, referred the matter to I Conservator of Forests, Logging Project Circle. Rajahmundry, on 19-1-1983 for ap-propriate orders, inasmuch as the value of the tree growth exceeded Rs. 1,00,000/- and, therefore, beyond his authority. The Conservator of Forests referred the matter on 15-3-1983 to the Chief Conservator of Forests, in view of the provisions of the Forest (Conservation) Act, 1980, which had come into force on, and with effect from 25-10-1980. The Chief Conservator, in turn, referred the matter to the Government of Andhra Pradesh for necessary instruction. While the matter was so pending, the appellant requested in his letter dated 19-1-1983 for permission to fell 50 trees in a particular portion of the said area pending finalisation of the matter, so as to enable him to carry on the mining operations. This permission was granted to him by the District Forest Officer, Kakinada. The respondents, however, complain that instead of felling 50 trees only, the appellant felled 105 trees. Be that as it may, finding no response to his representation, the appellant approached this Court in February, 1985 (W.P. No. 1174/85 from which the present Writ Appeal arises) for issuance of an appropriate writ, order, or direction to respondents 1, 3, and 4 (namely, (a) Government of Andhra Pradesh, in Forest Department, (b) Conservator of Forests (Logging Project Circle), Rajahmundry, and (c) District Forest Officer, Kakinada), to grant permission for clearing the tree-growth as applied for by him on 28-2-1982.
3. The appellant's case is that, according to Clause 4(iv) of the Appendix to the mining lease, he has a right to clear 20% of the forest growth on the leased area and, therefore, the Forest Department cannot refuse to grant permission therefor. Even otherwise, he has a right to clear the forest growth over the entire leased area, inasmuch as the lease in his favour was granted long prior to the coming into force of the Forest (Conservation) Act, 1980. The Act has no application to his lease. It was, therefore, not necessary for the authorities to refer the matter to the Central Government for orders under the said Act, The appellant is prepared to pay the value of the tree growth as may be assessed by the Department, Because of the respondents failure to accord necessary permission, the appellant is unable to commence the mining operations which is causing him grave prejudice.
4. In the counter-affidavit filed by the Asst. Conservator of Forests on behalf of respondents 1, 3 and 4, it is submitted that, according to Clause 4(iv) of the Appendix to the lease deed, the clearance of tree growth cannot be in excess of 20% of the number of trees in the leased area, and that, even for clearing the said 20%, permission of the Forest Department is necessary. The appellant (petitioner) wishes to remove the entire tree growth which, if permitted, is likely to cause ecological embalance in the area, since the area selected by the appellant is situated on steep hill-slopes. The Forest (Conservation) Act is attracted in the matter, and in that view it was referred for orders to the Central Government. The matter is pending consideration of the Government of India.
5. The learned single Judge agreed with the respondents that before permitting the clearance/ cutting of 849 trees as requested by the appellant, it was obligatory upon the State Government to obtain prior approval of the Central Government as required by Section 2 of the Forest (Conservation) Act. The learned Judge disagreed with the appellant's contention that because the lease in his favour was executed prior to the coming into force of the said Act, the prior approval of the Central Government need not be obtained even where the permission to cut the forest-growth is sought for after the coming into force of the Act. Accordingly, the writ petition was dismissed. The correctness of the view taken by the learned single Judge is questioned in this Writ Appeal.
6. When the appeal came up before a Division Bench, the appellant relied upon certain observations made by a Division Bench in W. A. No. 795/85, disposed of on 20-8-1985. According to the appellant, those observations supported his argument that where a lease is granted prior to the coming into force of the Act, prior approval of the Central Government need not be obtained under section 2 of the said Act for clearing the forest growth on the leased area. But, as stated above, the said Bench decision has been overruled by a Full Bench of this Court in G. Raghava Das v. Government of A. P. AIR 1966 Andh Pra 166. We must, however, state that the main question arising in the Bench decision, and also in the case before the Full Bench, was whether an application for renewal of lease should be treated as an application for fresh lease. While the Bench held, purporting to follow the decision of the Supreme Court in State of Bihar v. Banshi Ram , that for granting renewal of a lease, prior approval of the Central Government under Section 2 of the Forest (Conservation) Act is not necessary, the Full Bench held that, since a renewal is also a grant, such approval is necessary. In this case, we are not concerned with the renewal of lease, nor are we concerned with the question whether before granting a renewal, prior approval of the Central Government need be obtained under Section 2 of the Forest (Conservation) Act. The question before us is where a mining lease has been granted prior to the coming into force of the said Act but the forest growth thereon is sought to be cut/cleared after the coming into force of the Act, whether such permission cannot be granted by the Forest authorities without obtaining prior approval of the Central Government under Section 2 of the 1980 Act?
7. The A. P. Forest Act, 1967, has been enacted by the Legislature of the State of Andhra Pradesh to consolidate and amend the law relating to protection and management of forests in the State of Andhra Pradesh. Chapter II containing Sections 3 to 23 provides the procedure for declaring any land as a reserved forest, and the consequences flowing therefrom. Once a land is declared as a reserved forest, no person can clear or break-up any land for any purpose whatsoever, except under a permission granted by the competent authority; and if he does so, he is liable to be prosecuted in a Criminal Court, in addition to being made liable for the damage caused to the forest. Chapter III deals with protected forests, while Chapter III-A contains provisions for preservation of private forests. Even the owner of a forest is not entitled to alienate, or cut and remove the forest growth except under the permission of a competent authority. Chapter IV regulates the transit and possession of timber and other forest produce. The other provisions in the Act are machinery provisions and need not be referred to.
8. The Forest (Conservation) Act was enacted by the Parliament in 1980. It replaces an Ordinance issued on 25-10-1980. The statement of objects and reasons appended to the Bill, read as follows :--
"Deforestation causes ecological embalance and leads to environmental deterioration. Deforestation had been taking place on a large scale in the country and it had caused widespread concern.
With a view to checking further deforestation, the President promulgated on the 25th October, 1980, the Forest (Conservation) Ordinance, 1980. The Ordinance made the prior approval of the Central Government necessary for de-reservation of reserved forest and for use of forest land for non-forest purposes. Ordinance also provided for the constitution of an Advisory Committee to advise the Central Government with regard to grant of such approval.
The Bill seeks to replace the aforesaid Ordinance .... .".
The preamble to the Act says that it is enacted to provide for the conservation of forests and for matters connected therewith, and ancillary or incidental thereto. The Act consists of only five Sections. The substance of the Act is to be found in Section 2. It reads :
"2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose :
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 --
(i) that any reserved forest (within the meaning of the expression 'reserved forest', in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(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".
9. Section 2 opens with a non obstante clause. The provision contained therein applies notwithstanding anything contained in any other law for the time being in force in a State. The Section prohibits a State Government, or for that matter, any other authority, from making any order dereserving a reserved forest, or permitting use of a forest land or any portion thereof, for any non-forest purpose, except with the prior approval of the Central Government. The Explanation to the Section defines "non-forest purpose". It means, breaking up, or clearing of any forest land or portion thereof for any purpose other than reafforestation. Breaking up or clearing a forest for mining purposes is thus a 'non-forest purpose' within the meaning of the Act. Now, in this case, we are not concerned with de-reserving any reserved forest and, therefore, clause (i) in Section 2 need not be considered. The only question is, whether the State Government is obliged to seek the prior approval of the Central Government before permitting the clearing and cutting of forest growth on the land leased out to the appellant? The contention of the appellant is that inasmuch as the lease was granted prior to the commencement of the Act, the State Government need not seek such prior approval before permitting the clearing of forest over the leased area, while according to the respondents, what is relevant is not the date of the mining lease, but the date on which the permission to cut the forest growth is being given.
On a plain reading of the Section, we are inclined to agree with the respondents. The grant of a mining lease is not tantamount to grant of permission to cut and clear the forest growth. The mining lease granted to the appellant does not empower him to cut and clear the forest growth without the permission of the Forest Department. The leased area is situated in a reserved forest. No forest growth therein can be cut or removed except in accordance with the provisions of the A. P. Forest Act, and the Rules made thereunder. There is nothing in the lease deed to show that such permission is not necessary, or that the application of the provisions of the A. P. Forest Act and the Rules made thereunder, is dispensed with vis-a-vis the leased area assuming that such a stipulation is permitted in law. On the contrary, the lease deed makes it repeatedly clear that the permission of the Forest Department has to be obtained. Clause 4 in the Appendix to the mining lease says :
(a) The lessee shall not enter upon or commence mining operations in any reserved forest situated upon the said land without thirty days previous notice in writing to the District Forest Officer, and without obtaining the written sanction of that officer which may be with such conditions as that officer may impose in his reasonable discretion.
(b) "The lessee shall not cut any trees or growth on the area granted in excess of 20 per cent of the number of trees on the whole area under lease without the previous permission of the District Forest Officer .....". The District Forest Officer shall determine the value of such trees, which shall be paid by the lessee; (vide sub-clause (iv) of Clause 4).
(c) "The lessee shall not construct any new road in Government forest without the previous sanction of the Divisional Forest Officer".
10. At this stage, we may mention that there is a difference of opinion between the appellant and the respondents as to the interpretation of clause 4(iv) of the Annexure to the lease deed. While the appellant says that he need not obtain the permission of the Forest Department to the extent of 20% of the number of trees on the leased area, and that he need obtain such permission only if he proposes to cut trees over and above 20% the respondents say that the appellant can cut only up to 20%, and even for that 20% cutting he requires permission. Reading the said clause in the light of the statutory provisions contained in Chapter II of the A. P. Forest Act, we must hold that for any and every permission to cut and clear the forest growth, the lessee is obliged to obtain permission of the competent authority under the said Act and the Rules made thereunder. We must also mention in this connection that neither the Mines, and Minerals (Regulation and Development) Act, 1957, nor the Rules made thereunder (Mineral Concession Rules, 1960) provide for consultation with, or concurrence of the forest authorities where the leased area I is situated in a reserved, protected, or private forest. The grant of lease under the said Act and the Rules does not empower the lessee to refuse to abide by the provisions of the A. P. Forest Act, and the Rules made thereunder.
We are thus of the opinion that permission of the authority under the A. P. Forest Act has to be obtained before any forest growth is cut and cleared in a reserved forest, and that the authority granting the permission shall not only have to abide by the provisions of the A. P. Forest Act and the Rules made thereunder, but also with the provisions of the Forest (Conservation) Act, 1980, and the Rules made thereunder. It is not possible to agree that grant of a lease under the Mines and Minerals (Regulation and Development) Act, 1957 and the Rules made thereunder, amounts to, or is equivalent to grant of permission to cut and clear the forest growth in a reserved forest, or for that matter, in any other forest. A lessee under a mining lease has still got to abide by the provisions of the A. P. Forest Act which, in turn, brings in the Forest (Conservation) Act. 1980, before he cuts and removes any forest growth in a reserved forest.
11. This view of ours is supported by the decision of the Supreme Court in State of Bihar v. Banshi Ram, , which has indeed been relied upon by the learned counsel for the appellant. For a proper appreciation of the ratio of the said decision, it is necessary to notice the facts of that case. The respondent in the appeal before the Supreme Court was granted a mining lease for mining and winning mica in respect of an area of 80 acres, which formed part of a reserved forest, The mining lease was executed in April, 1966. The lease was for a period of 20 years. At the relevant time the lessee was carrying on mining operations only in an extent of about 5 acres. While carrying out the mining operations he came across two other minerals, namely, felspar, and quartz. Under the terms of the lease, he was obliged to report to the State Government the discovery of any other mineral in the leased area; he was entitled to win and dispose of such mineral only if a lease was granted to him in that behalf. Accordingly, he intimated the authorities and a supplemental lease deed was executed, co-extensive with the original lease deed, permitting him to win and quarry the two new minerals as well. On coming to know of the same, 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 Forest (Conservation) Act, 1980, and also stating that inasmuch as the mining area was situated within a reserved forest area, and further, inasmuch as the prior approval of the Central Government had not been obtained for inclusion of felspar and quartz in the mining lease as required by the Act, the lessee could not be permitted to win the said new minerals notwithstanding the execution of the supplemental lease deed. Aggrieved by the said letter, the respondent filed a writ petition in the High Court, which was allowed, while making it 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. Aggrieved by the judgment of the High Court, the State of Bihar approached the Supreme Court, The only question which the Supreme Court considered was "whether the mining operations which are being carried on in the 5 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". After examining the object underlying the Act and the language of Section 2, in particular clause (ii) therein, read with the Explanation, the Court observed (at p. 816 of AIR) :
"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 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. 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 that 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 or remove any standing trees thereon without the prior permission in writting from the Central Government. Taking into consideration all the relevant matters, we are of the view that respondent No. 1 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.....".
The observations aforesaid make it clear beyond any doubt that any fresh clearing of the forest cannot be permitted by the State Government, or any other authority, without the prior approval of the Central Government, What all the judgment says is that, since 5 acres of land was already broken up and cleared, and mining operations for winning mica were going thereon, no fresh permission of the Central Government is necessary for mining and winning felspar and quartz in the very same area, If the mining operations are to be carried on beyond those 5 acres and if any forest produce is to be cleared, then prior permission of the Central Government is necessary, before it is permitted by the State Government or any other authority. Indeed, the counsel for the lessee before the Supreme Court gave an undertaking that even for felling and removing the standing trees on the said 5 acres he would obtain the prior permission of the Central Government in writing; (see para 10). Counsel for the lessee before the Supreme Court further undertook that the lessee would not carry on any mining operations on any area other than the said 5 acres which had already been utilized for non-forest purposes even before the coming into force of the Forest (Conservation) Act, for the purpose of winning felspar or quartz; (see paragraph 7).
12. Mr. P. Ramachandra Reddy, learned counsel for the appellant, however, relied upon the following sentence occurring in paragraph 7:
"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 our opinion, the said sentence cannot, and should not, be read in isolation, but in its proper context. The said sentence occurs after referring to the undertaking given by the counsel for the lessee that the lessee would confine his mining operations only to the 5 acres, and is followed by the sentence wherein the only question arising for consideration in the said appeal was posed, viz., whether the mining operations being carried on in the said 5 acres for winning felspar and quartz are illegal by reason of the absence of the previous approval of the Central Government under the Forest (Conservation) Act. We are, therefore, of the opinion that the said sentence cannot be read as saying that the grant of a mining lease is tantamount to grant of permission to break up or clear the forest land. What is material for the purpose of the Act is not the date on which the lease is granted, but the date on which the State Government or other authority permits the breaking up, or clearing of the forest land, or any portion thereof.
13. For the above reasons, the Writ Appeal fails and is, accordingly, dismissed; but, in the circumstances, without costs. Advocate's fee Rs.500/-.
Appeal dismissed.