Rajasthan High Court - Jaipur
Ratan Lal Sharma vs The Secretary To The Government, Forest ... on 9 July, 1986
Equivalent citations: AIR1987RAJ129, 1986(2)WLN651
ORDER M.B. Sharma, J.
1. The main contention of the learned counsel for the petitioner a holder of mining lease of 'Cheja Pather', in challenging the action of the non-petitioner is that the mining lease had been sanctioned to the petitioner before coming into force of the Forest (Conservation) Act, 1980 for short the 'Act' and as such, Section 2 of the Act will not apply.
2. A mining lease of 'Cheja Fatthar' for an area measuring 70 X 70 Sq. Meters was sanctioned to one Panchu Ram s/o late Shri Ram Sahai Mali, respondent of Gandhi Nagar Choraha, Jaipur, under the order dt. 27th Sept. 1980 by the Mining Engineer Jaipur. The lease holder Panchu Ram was required to pay an yearly dead rent under the Minor Mineral Concession Rules, 1977. The period of lease was 10 years. Later with the permission of the Mining Department the lease was transferred by the lease holder to the petitioner and the transfer deed was registered on 18-8-1984. Thereafter the petitioner has been excavating the mineral and was paying royalty and dead rent.
3. The case of the petitioner is that all of a sudden the employees of the Forest Department i.e. respondents 3 and 4, without any prior intimation and without any notice to the petitioner started interfering in the working of the Mines and prevented the petitioner from excavating stones from the area. On an enquiry from the officials of the Forest Department the petitioner was not communicated any reason for their interference with the working out the mining lease by the petitioner. The employees of the Forest Department have fixed boundary wall with fencing wires, resulting in deprivation of the petitioner for excavating the minerals from the mining area and loss of dead rent and of huge amount which has been invested by him. According to the petitioner no objection certificate was issued to Shri Panchu Ram by the Forest Department for grant of mining lease for a period of 10 years. A show cause notice was issued to the non-petitioners and a reply was filed by respondent 2. In the reply filed by respondent 2, a case has been set up that this mining tease was executed by Panchu Ram on 29-12-80 within the Forest Area as determined by the State Government by notification dt. April, 1966 published in Rajpatra dt. 22nd Dec., 1966 Part 1.1 Kh. but in view of the Act, the petitioner could not be granted the mining lease unless prior approval of the Central Government is obtained. No such approval was obtained and the petitioner cannot operate the mines. The Forest Department according to the reply fixed wire fencing with pole all along the hill in order to protect the 30-35,000 plants which were planted in 50 Hects, area. The Forest Department is said to be taking action within the ambit of law.
4. The very fact that the petitioner has given out that no objection certificate was obtained from the Forest Department and the Divisional Forest Officer issued it goes to show that there could not be dispute that the area in dispute is forest area. That apart as stated earlier in the reply of respondent 2, the State Government by notification dated April 7, published in Raj Patra on Dec. 22, 1966 Part-I Kh. declared the area as reserved forest area. It is also clear from Khasra Map Ex. R-3 and from Gazette notification (Ext. R-2). The mining lease was granted to Shri Panchu Ram and the same has been filed as (Annexure R-1, page 17). A perusal of Annexure R-1 would show that the lease deed was executed on 29th December, 1980 between Panchu Ram and the Convenor of the State of Rajasthan and as per Clause (1)(c) the lease (lessee ?) shall hold the premises granted and demised from the date of registration for a period of 10 years. It cannot be disputed that the lease deed was registered after the Act came into force i.e. after Oct. 25, 1980. Section 2 of the Act provides, 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.e. any forest land or any portion thereof may be used for any non-forest purpose. 'Non-forest purpose' means breaking up or clearing of any forest land or portion thereof or any purpose other than reafforestation. It cannot be disputed that under the explanation of sub-section of Section 2 of the Act, the grant of the area for mining lease will be a non-forest purpose. Thus after coming into force of the Act, without the prior approval of the Central Government no part of the forest land could be used for any non-authorised purpose.
Merely because the lease was sanctioned under Order dt. 27th Sept., 1980 by the Mining Engineer, it cannot be said that the Mining lease came into operation before the Act came into force. As already stated earlier, a bare perusal of the Clause (1)(c) of the copy of the Mining lease will make it clear that it was for a period of 10 years commencing from the date of registration and there can be no dispute that the registration of lease and its execution took place after 25th Oct., 1980. Therefore, the mere fact that no objection was received from the forest department before the Act came into force will not confer a right on the petitioner to excavate 'Cheja Pathar' from the area in dispute which lies in protected forest land as it is not disputed that no prior approval of the Central Government was obtained. In State of Bihar v. Banshi Ram Modi, AIR 1985 SC 814 their Lordships of the Supreme Court have held that if the mining lease has been granted before the coming into force of the Act, then Section 2 of the Act will not come in the way of the lease (lessee ?). In that case, the lease (lessee ?) had been granted a mining lease much before the Act came into force. That ruling does not apply to the instant case. Consequently because the lease in this case was granted after the coming into force of the Act and prior approval of the Central Government was not taken for the use of the part of the protected forest for non-forest purpose, in view of Section 2 of the Act, the petitioner cannot be allowed to operate the mine. I find no substance in this writ petition and it is hereby dismissed.