Farook Shaikh vs State Of Gujarat

[Cites 57, Cited by 0]

Gujarat High Court

Farook Shaikh vs State Of Gujarat

Bench: Bhaskar Bhattacharya

  
	 
	 FAROOK SHAIKH....Applicant(s)V/SSTATE OF GUJARAT
	 
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 


	C/WPPIL/1/2013
	                                                                    
	                           CAV JUDGEMNT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 1 of 2013 FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

Yes 2 To be referred to the Reporter or not ?

Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?

No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

No 5 Whether it is to be circulated to the civil judge ?

No ========================================================= FAROOK SHAIKH....Applicant(s) Versus STATE OF GUJARAT & 2....Opponent(s) ========================================================= Appearance:

MR YN OZA, Senior Advocate with MR HJ DHOLAKIA, ADVOCATE for the Applicant(s) No. 1 MR PK JANI, GOVERNMENT PLEADER with MR PARTH BHATT, AGP for the Opponent(s) No. 1 MR PS CHAMPANERI, ADVOCATE for the Opponent(s) No. 3 MR MIHIR JOSHI, Senior Advocate for NANAVATI ASSOCIATES, ADVOCATE for the Opponent(s) No. 2 NOTICE SERVED for the Opponent(s) No. 1 NOTICE UNSERVED for the Opponent(s) No. 3 ========================================================= CORAM:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :

03/05/2013 CAV JUDGEMNT (PER :

HONOURABLE MR.JUSTICE J.B.PARDIWALA)

1. This petition, in the nature of a public interest litigation, has been filed by a former Member of the Gujarat State Legislative Assembly and has prayed for the following reliefs:

[A] Your Lordship may be pleased to admit and allow the present petition.

[B] Your Lordships may be pleased to issue a writ of Mandamus or a writ in nature of Mandamus and/or any other appropriate writ/s, order/s, and/or direction/s and thereby quashing and setting aside allotment on forest land by the state government for land admeasuring 2,07,60,000 sqr. mtrs of forest land situated at Village Hazira (Suvali), Taluka Choryasi, District Surat being Survey No.434/A/1 and further be pleased to demolish the construction which has already been taken place on the said forest land and further be pleased to direct the state government to continue with those four Criminal cases filed and the same may be prosecuted.

[C] Your Lordships may be pleased to issue a writ of Mandamus or a writ in nature of Mandamus and/or any other appropriate writ/s, order/s, and/or direction/s and thereby direct the respondents to produce on record the order of allotment of land admeasuring 2,07,60,000 sqr. mtrs of forest land situated at Village Hazira (Suvali), Taluka Choryasi, District Surat being Survey No. 434/A/1 in favour of respondent No. 2 herein and quash and set aside the same by holding and declaring that to be illegal and arbitrary and further be pleased to direct the Secretary, Forest & Environment Department to take the possession of the forest land from respondent No. 2.

[D] Pending hearing and final disposal of this petition your lordship may be pleased to stay and suspend implementation, execution and operation of the order of allotment of land admeasuring 2,07,60,000 sqr. mtrs of forest land situated at Village Hazira (Suvali), Taluka Choryasi, District Surat being Survey No. 434/A/1 issued in favour of respondent No. 2.

[E] Such other and further relief/s as may be deem just and proper in the facts and circumstances of the case may please be granted in favour of the petitioner in the interest of justice.

2. The case made out by the petitioners in this petition may be summarized as under:

2.1 It has been brought to our notice that the State Government has illegally allotted 20.76 hectares i.e. approximately 2,76,000 sq.mtrs. of forest land bearing Survey No.434/A/1 situated in Village-Hazira (Suvali), Taluka-Choryasi, District-Surat, in favour of the respondent no.2 company, which is a multi-national company without any prior approval of the Central Government as required under Section 2 of the Forest (Conservation) Act, 1980 read with Forest (Conservation) Rules. It has also been brought to our notice that the company has put up construction to provide accommodation to around 650 families who are the employees and working at the Hazira plant of the company.

2.2 It is the case of the petitioner that, in his capacity as a Member of the Gujarat State Legislative Assembly, he had raised this question in the 8th Session of the Gujarat State Assembly dated 1st March 2011. He had sought clarification and explanation from the government whether government was ready to demolish the said construction and take over the possession of the land in question.

At that point of time, the petitioner was given to understand that it was true that the company had illegally acquired the land to the extent of around 2,76,000 sq.mtrs. and various offences had been registered against the company under the Indian Forest Act, 1927. The State Government also brought to the notice of the petitioner that the Deputy Secretary to the Government, Forest and Environment Department vide its letter dated 24th February 2011 addressed to the Chief Conservator of Forest, Ministry of Environment and Forest, Regional Office, Bhopal, had recommended to regularize the possession by imposing penalty of 2.5 times of the prevailing market value of the land as the CSR of the company and the company should be asked to hand over around 110 hectares of non-forest land by way of afforestation.

2.3 As heavy reliance has been placed by the petitioner on the above referred letter of the State Government dated 24th February 2011, we deem fit to reproduce the same as it contains minute details.

No.FCA-1009(10-03)S.F.-92-F Date:24/2/11 To, The Chief Conservator of Forest ( C ) Ministry of Environment & Forest, Regional Office, Western Region, Kendriya Praryavaran Bhavan, Link Road No. 3, E-5, Arera Colony, Bhopal (M.P.) 462016 Sub :

Diversion of 20.76 ha. of forest land for construction of housing accommodation and allied employees infrastructure facilities at Village Hazira (Suvali) Survey No. 434Pt. Ta.Choryasi, Dist. Surat in favour of M/s Essar Steel Ltd., Ahmedabad.

Sir, Please refer to the proposal submitted by the M/s Essar steel Ltd., Ahmedabad. The details of the proposal are as under.

Sr. No. Description of Land Total Area in Ha.

Forest Status 1 Village Hazira (Suvali) Survey No. 434Pt. Ta.Choryasi, Dist. Surat 9.66 RF 2 '' 11.1 Section-4 Total 20.76 The proposal was originally submitted by M/s Essar SEZ Ltd., for the use by Essar Steel Ltd. as SEZ at Hazira has been denotified in the meeting of Board of Approval dt. 13/07/2010, the name of the user agency is changed to Essar Steel Ltd. and necessary undertaking in this regard has been obtained.

The area involved has been declared as a Reserved Forest vide Government of Gujarat Notification No. GVN/2000/(75)/FLD/1683/4699/K, dt. 25/07/2000, and declared under section-4 vide letter No. AKH-7575-FLD-1175-61765-P, dt. 16/02/75.

It is pertinent to note here that an area of 275.59 ha. of Survey No. 434/A/1 Pt. of Village Suvali (Hazira) was declared under section-4 of the IFA, 1927 vide Govt. resolution dt. 10/02/1975. Forest Settlement Officer, Surat vide his settlement report dt. 03/07/82 mentioned that the said area of 275.59 ha. notified under section-4 is as per revenue records comes to 288.29 ha. and opined to delete 240.4514 ha area and to declare only 47.7535 ha area under section 20 of the IFA as reserved forest. Accordingly 47.7532 ha area has been notified under section-20 vide GR dt. 25/07/2000. However, for deletion of area from section-4 also, permission under FCA is required to be obtained, the legal Status of the remaining area remains that of forests. Of the proposed 20.76 ha area 9.66 ha area is part of the area notified under section -20 while 11.10 ha area is part of the area recommended for deletion by FSO, which legally is unclassed forest.

The Scheme of compensatory afforestation has been prepared for raising plantation in 20.76 ha non forest land in Survey No. 258/3 Pt. 33,23,38,39,24 of (R-2 Model), Village Sanala, Ta.Palitana, Dist. Bhavnagar. Compensatory afforestation scheme is enclosed.

The user agency has committed violation by construction and it has found that they have carried out construction as detailed below without permission under FCA, from January 2006, onwards.


 


 


 


 


 


 


 
	 
		 
			  


			Building  
			3 Nos.					4.32 ha.
			  


			Canteen
			1						0.007 ha
			  


			Garden roads
			and open area 			 16.37 ha 
			
			 
				 
					 


					Total						20.76
					ha
				
			
		
	

 


 


 


	In the

buildings constructed in the area under encroachment about 628 families were found residing. Offences under IFA 1927 had been registered vide FORs dated 19/1/07, dt. 6/2/07 and dt. 30/10/07. The work was stopped initially but again as per the joint survey by surveyors of DILR, Surat and of Vyara during 7 to 9-02-2007 the area was reported to be outside the forest area. Hence the Dy. CF. Vyara had lifted the ban on the construction in the area. However, the map prepared on the basis of the joint survey was found again to be faulty and resurvey was undertaken during dt. 16-17/11/2007, 31/12/2007 and 2-3/01/2008 during which it was found to be part of the forest area. Thus the said work appears to have taken place due to faulty survey findings and wrong boundaries of the area probably in connivance or out of lack of knowledge of the map or area. The then CF, Surat had taken opinion of the Assistant Public Prosecutor (APP) in this regard and APP had opined that following officers/employers were made responsible for the violation Shri I.M. Patil, District Surveyor, Office the DILR, Surat Shri C.B. Bengal, RFO, Survey, Office of the CF, Surat Shri U.B. Nagori RFO, Survey, Office of the Dy. CF, Vyara Shri C.F. Chaudhari, Forest Surveyor, Office of the Dy.C.F., Pajpipla (west) Division.

APP has opined that Shri V.K. Singh, representative of the user agency is also responsible for the violation. Further inquiry is going on and the matter is also being inquired by Vigilance wing of PCCF office.

Further work had been stopped in the area then after and the area has been sealed and forest department had taken formal possession of the area. However, considering large number of families residing in the area, use of the said buildings is continued.

For the violation, penal compensatory afforestation has been proposed in 41.52 ha (i.e. twice the area under the proposal) degraded forest land in Survey No. 219, coup No. 11 of village Kanji, Ta.Songadh, Dist. Vyara of C-1 model. Dy. C.F. Vyara had given land suitability certificate for the same.

The user agency has given an undertaking to pay the cost of compensatory afforestation, penal compensatory afforestation and NPV and has also given an undertaking that in case of upward revision of NPV they will pay the difference. The user agency had volunteered to give 100 ha of land in the grassland area of Bhavnagar to make extension to the lion corridor also.

The requisite information in the prescribed proforma, Maps etc. is enclosed.

The user agency has however been an encroacher in the forest area and all work carried out is therefore without legal permission. Nodal Officer has in part IV recommended that for the violation the user agency is equally responsible and should not be allowed scot free. It is necessary to impose conditions which become exemplary and post facto regularization should not become a precedence.

The user agency had also agreed to provide additional 110 ha (almost 5 times the area under violation) of non forest land at village Sanada, Ta. Palitana, Dist. Bhavanagar which is part of Lion corridor area suitable as lions habitat.

The State Government, considering all the aspect recommend the proposal with a condition to impose levy of 2.5 times of the prevailing market value of the land as CSR of the company and 110 ha of non forest land of village Sanada, Ta. Palitana, Dist. Bhavnagar which was volunteered by user agency in addition to the standard conditions of CA, Penal CA and NPV. 2.5 times market value of the land recovered from the user agency shall be deposited in Lion Conservation Society and to be utilized for activities of Lion Conservation. Lion Conservation Society is constituted by the Government. The Government Resolution for Constitution of this society is enclosed. FCA clearances shall be subjected to clearances required under environment laws. It may here be mentioned that the user agency (a) has utilised around 5 hectors of land for construction while rest is kept open and for garden etc.

(b) The land encroached also contains 11.0 hectors which was recommended by FSO for deletion. (c) The land so encroached has arisen mainly out of non determination of boundaries of forests at the appropriate stage and in the year 2005 when it all started.

Despite all these issues, the government feels that penalty be imposed and therefore, I request you to approve the proposal under the Forest (Conservation ) Act, 1980.

Yours faithfully, sd/-

(P.M.Christian) Deputy Secretary to the Government, Forest & Environment Department 2.4 According to the petitioner, in view of the fact that the company was in unlawful possession of 2,76,000 sq.mtrs. of forest land on which huge construction had also been made by the company, it was the duty of the State Government to take immediate steps to take back the possession of the forest land after asking the company to demolish the construction. It is alleged by the petitioner that the State Government also acted hand-in-glove with the company and tried its best to protect the company thereby shielding the company from all illegalities committed by it. It is also the case of the petitioner that the land is worth around Rs.250 Crore and the State Government ought not to have recommended to the Central Government to regularize such unauthorized construction and possession. In such circumstances, referred to above, the petitioner has prayed that this Court may issue appropriate directions so as to secure the precious forest land admeasuring around 2,76,000 sq.mtrs.

3. STANCE OF THE STATE GOVERNMENT 3.1 On behalf of the State Government one Paritosh Manohar Christian, Joint Secretary, Forest and Environment Department, Government of Gujarat, has affirmed an affidavit denying all allegations levelled by the petitioner in his petition. The stance of the State Government is that the entire edifice of the petition is on a false premise that the forest land has been allotted to the respondent no.2 company at a throw away price. According to the State Government, the State had never allotted the land in question, but, some time in the year 2007, it came to the notice of the State Government that the company had illegally acquired the land in question and, therefore, some offences under the Indian Forest Act were registered against the company and its officials.

3.2 It is also the stance of the State Government that the area involved has been declared as a 'reserved forest' and it was found that buildings have been constructed by the company to accommodate around 628 families who are no other than the employees of the company working at the Hazira plan. Initially, the work was ordered to be stopped but the first joint survey by Surveyors of DILR, Surat, and of Vyara in the year 2007 revealed that the land was not a 'forest land' but was outside the forest area. On such report being filed, the Deputy Conservator of Forest, Vyara, had lifted the ban on the construction. At a later stage, it was realized that such map and the survey was faulty and, therefore, a fresh survey was undertaken which finally revealed that the land in question was a 'forest land'.

3.3 According to the State Government, four officers responsible for carrying out such a faulty survey were proceeded departmentally and action was also taken against such officers.

3.4 At that point of time a proposal was received by the State Government from the company to permit them to use the forest land for non-forest purpose. After the receipt of such proposal the State Government noticed that there were in all 628 families residing in the buildings constructed by the company. The company, in its proposal, agreed to provide additional 110 hectares (almost five times the area in question) of non-forest land at Village-Sanada, Taluka-Palitana, District-Bhavnagar, which is a part of Lion Corridor area suitable as lion's habitat.

3.5 The State Government accordingly after considering all the relevant aspects recommended to the Central Government to impose levy of penalty of 2.5 times of the prevailing market value and thereby grant approval to permit the company to make use of the forest land for non-forest purpose. According to the State Government, the company encroached upon the land mainly due to the failure on the part of the Government to fix the boundaries of the forests at appropriate stage, more particularly, in the year 2005.

3.6 According to the State Government, the land in question is also not a part of the 'Coastal Regulation Zone' and is at a distance of more than 500 meters from the high tide line.

3.7 In such circumstances, referred to above, the State Government has prayed to dismiss this petition.

4. STANCE OF THE CENTRAL GOVERNMENT 4.1 On behalf of the Ministry of Environment and Forest of the Central Government, an affidavit-in-reply has been affirmed by one Pradeep Vasudeva, the Conservator of Forests at Regional Office, Bhopal.

4.2 The relevant averments made in the affidavit-in-reply are as under:

(i) A proposal was received from the State Government of Gujarat in the office of Chief Conservator of Forests (Central), Bhopal for diversion of 20.76 ha of forest land in favour of Essar Steel Ltd., Ahmedabad (hereinafter referred to as the user agency) for housing, accommodation and allied infrastructure facilities for employees at village Hazira, Tehsil Choryasi in Surat District.

(ii) The State Government vide letter No. FCA 1009(10-03) S.F.-92-F dated 24th February 2011, has informed that an area of 275.59 ha of Survey No. 434/A/1 Pt. of village Suvali (Hazira) was declared under section-4 of the Indian Forest Act, 1927 vide Government resolution dated 10/02/1975. Forest Settlement Officer, Surat vide his settlement report dated 03/07/82 mentioned that the said area of 275.59 ha notified under section-4 is as per revenue records comes to 288.29 ha and opined to delete 240.4514 ha area and to declare only 47.7535 ha under section-20 of the Indian Forest Act, 1927 as reserved forest. Accordingly 47.7532 ha area has been notified under section-20 vide GR dated 25/07/2000. However, for deletion of area from section-4 also, permission under Forest (Conservation) Act, 1980 is required to be obtained, the legal Status of the remaining area remains that of forests. Of the proposed 20.76 ha area 9.66 ha area is part of the area notified under section-20 while 11.10 ha area is part of the area recommended for deletion by the FSO, which legally is unclassed forest. It has been also informed by the State Government that in the buildings constructed in the area under encroachment about 628 families were found residing and further work had been stopped in the area thereafter and the area had been sealed and forest department had taken formal possession of the area.

However, considering large number of families residing in the area, use of the said buildings has been in continuance.

(iii) The State Government has also informed that the user agency had violated the provisions of the Forest (Conservation) Act, 1980 for which action was being pursued by the State Government. Two first offences reports namely FOR No. 1/06-07 and for 2/06-07 dated 19/01/2007 were registered for illegal entry and construction of buildings in the forest land by the user agency. In the proposal, compensatory afforestation was proposed over 20.76 ha. Non-forest land and penal compensatory afforestation was proposed over 41.52 ha. degraded forest land. As corporate social responsibility, the user agency has been asked to provide 2.5 times the market value of the land that was prevalent in the year 2006.

(iv) The proposal was discussed, particularly in the State Advisory Group on 6.6.2012 in view of violation of Forest (Conservation) Act, 1980 was discussed at length. The State Advisory Group found that the additional conditions stipulated by State Government as compensation for the violation of the provisions of the Forest (Conservation) Act 1980 were adequate. The case was recommended to the Ministry of environment and Forests for approval. In the meantime, a copy of user agency's letter dated 31st August 2012 addressed to Nodal Officer, Gujarat was received in Regional Office and Ministry of Environment and Forest. The user agency claimed that the land in question belonged to Hazira Aapbal Ganotia Sahkari Mandali Ltd. Hazira. The construction activity on the said land was started by user agency only after they had obtained possession from the Mandali after execution of agreement. The Ministry of Environment and Forests decided to examine the matter in the light of additional information submitted by the user agency. The State Government and Nodal Officer were asked to give views on the letter of the user agency vide letter dated 03.12.2012. So far the view of the State Government has not been received on the representation of the user agency.

........

Para No. 8-10. It is stated that the Deputy Secretary to the Government Gujarat, Forest and Environment Department vide letter No. FCA-1009 (10-03) S.F.-92-F dated 24th February 2011, has forwarded and submitted the proposal to the Chief Conservator of Forests (Central), Ministry of Environment and Forests, Western Regional Office, Bhopal for diversion of 20.76 ha. of forest land for construction of housing accommodation and allied employees infrastructure facilities at Hazira (Suvali) Taluka Choryasi, District-Surat in favour of M/s Essar Steel Ltd., which is annexed as Annexure-I . This is the fact that the proposal was received in Regional Office, Bhopal on 01.03.2011 and SAG recommended the proposal with the conditions proposed by the State Government along with some standard conditions stipulated in Forest (Conservation Act 1980).

While the matter was being decided, the project authority, Essar steel Ltd. put forward reasons/ facts vide letter dated 31/08/2012 for according approval which is annexed as Annexure II. The Central Government then vide letter No. 6-GJC 19/2011-BHO/1891 dated 03/12/2012, which is Annexed as Annexure-III sought for the views of the State Government and so far State Government has not forwarded its views.

As per provision of the Forest (Conservation) Act, 1980 prior approval of Central Government is required for diversion of Forest land for non-forestry purpose and as per guidelines to the Forest (Conservation) Act, 1980, in exceptional cases, diversion of Forest land is granted in case of violation of the above act by imposing the condition of penal afforestation.

5. STANCE OF THE RESPONDENT NO.2 COMPANY On behalf of the company, an affidavit-in-reply has been filed by one Shailesh K. Desai denying all the allegations levelled by the petitioner in his petition. According to the respondent no.2, the petition is vexatious and politically motivated. It has been alleged that the petitioner is a resident of the city of Ahmedabad and as such could not be said to be otherwise concerned with the subject matter of the petition. Although the petitioner was aware of all the facts since 2010 has thought fit to raise this issue at a belated stage only with a view to gain political mileage, more particularly, keeping in mind the Vibrant Gujarat Summit of the Government. It has been alleged that with a view to gain publicity and malign the State Government just a day before the commencement of the Vibrant Gujarat Summit, this petition was preferred so that the media would give a lot of publicity in that regard. The respondent no.2 is engaged in the business of production of steel and other allied steel products. The respondent no.2 owns and operates its plant at Village-Hazira, Taluka-Choryasi, District-Surat.

5.2 According to the company, the revenue record indicates that the land bearing Survey No.434/A/1 was a government waste land admeasuring in all 297.57 hectares (735 Acres). In the year 1960, a portion of the land admeasuring 16.19 hectares (40 Acres) was allotted by the State Government to a society named Hazira Apbal Ganotia Sahkari Kheti Mandali vide its order dated 12th March 1960 passed by the Prant Officer, Surat. At that point of time, the society was also allotted land bearing Survey No.363/A/1 which is not the subject matter of dispute in the present petition.

5.3 According to the respondent no.2, a notification dated 16th February 1975 was issued under Section 4 of the Indian Forest Act, 1927 by which it was proposed to declare certain area including 275.59 hectares, being the balance portion of land of Survey No.434/A/1 after excluding the land referred to above, as a reserved forest . In pursuance of the aforesaid notification under Section 4, the State Government issued another notification dated 25th July 2000 under Section 20 of the Act declaring 47.75 hectares of Survey No.434/A/1 as a reserved forest .

5.4 The steel plant of the respondent no.2 is located in village-Hazira near the portion of Survey No.434/A/1 which was allotted to the Hazira Apbal Ganotia Sahkari Kheti Mandali in the year 1960. Since the company was in need of additional land for its project the company had approached the said society in the year 2005 with a proposal to purchase the land from the society. The society agreed to transfer the said land at a sale price of Rs.8 Lac per Acre and accordingly passed a resolution to that effect dated 13th March 2005.

5.5 The company accordingly entered into the transaction relying upon the assurance of the society and the individuals that the subject land were excluded from the notifications issued under the Act and were not located within the area referred to in the said notifications. In such a manner, the company entered into the possession of the lands in question and commenced the work of construction of staff quarters etc. 5.6 On 24th January 2007, the Deputy Conservator of Forest ordered the company to discontinue all its activities which were being undertaken on the land in question. The company preferred a representation against such order to the Deputy Conservator of Forest and pursuant to such representation the Deputy Conservator of Forest conducted a survey and came to the conclusion that the lands in question were not part of forest area and thereby permitted the company to continue with its work of construction.

5.7 Due to lack of clarity in demarcation, once again a joint survey was conducted by the Surveyors of District Inspector of Land Records, Surat, and the Forest Department, Vyara. On completion of such joint survey, the Range Forest Officer, Dumas, vide letter dated 4th April 2007, once again informed the company that the land in question was not a forest land area and thereby lifted the ban on construction.

5.8 After almost two years i.e. some time around 2009, the forest authorities once again ordered the company to stop all its construction activities. By that time, the company had already completed construction of three residential buildings out of four. The fourth building which was under construction at the relevant point of time remains in the same condition as on today.

5.9 Thereafter, the company preferred an application dated 21st November 2008 addressed to the Deputy Conservator of Forest, Vyara Division, Vyara, for regularization of 20.76 hectares of forest land by way of diversion.

5.10 According to the company, the allegations of the petitioner that they encroached upon the land knowing fully well that the same was forest land is absolutely baseless and without any materials on record.

5.11 It is the case of the company that thereafter a proposal was put before the State Government that they were ready and willing to hand over alternate land to the Ministry of Forest and Environment, State of Gujarat. Accordingly, the company purchased land admeasuring 110 hectares at Village-Sanada, Taluka-Palitana, District-Bhavnagar, for the purpose of extension of the 'Lion Corridor'. The said lands are to be handed over by the company to the State Government as a part of the scheme for afforestation.

5.12 The Deputy Conservator of Forest, Bhavnagar Division, vide its letter dated 6th February 2010 also certified that the land at Survey No.258/2/P/3/P2 to P6 and 258/4P1/P1 to P22 admeasuring a total of 102 hectares located at Bhavnagar given in lieu for diversion of the land in question were suitable for lion habitat and is compensatory afforestation of grasses, shrubs and trees.

5.13 According to the company, on such proposal being put before the State Government, the State Government has recommended for diversion of forest land to the Ministry of Environment and Forest, Government of India vide its letter dated 24th February 2011.

5.14 According to the company, three two storey buildings for residential purposes are standing as on today on the disputed land and in all 745 individuals are residing in the said buildings since 2008.

5.15 In such circumstances, the company has prayed that the Central Government may be permitted to take an appropriate decision in the matter and this Court may not grant any of the reliefs as prayed for by the petitioner.

5.16 At this stage, it may not be out of place to state that initially after taking into consideration the pleadings of the parties and the oral submissions of the respective counsel, we were of the opinion that since the proposal of the State Government dated 24th February 2011 addressed to the Ministry of Environment and Forests of the Central Government for the use of forest land for non-forest purpose was still pending with the Central Government and as the Central Government is yet to take an appropriate decision, we should not go into the larger aspects of the matter and just ask the Central Government to take an appropriate decision in the matter as early as possible. However, Mr.Y.N.Oza, the learned Senior Advocate appearing for the petitioner very vehemently submitted before us that the pendency of the proposal of the State Government before the Central Government would be nothing but just an empty formality since the Central Government cannot grant any ex-post facto approval for diversion or use of the disputed forest land for non-forest purpose in view of the specific language used in Section 2 of the Forest (Conservation) Act, 1980. To put it in other words, according to Mr.Oza, Section 2 of the Act of 1980 speaks about prior approval and once the legislature has thought fit to use the word prior it necessarily suggests that there cannot be any ex-post facto approval. Such being the vociferous submission of Mr.Oza, we were left with no other option but to hear the petition at length and accordingly we have decided to look into the matter on merits.

6. SUBMISSIONS ON BEHALF OF THE PETITIONER 6.1 Mr.Y.N.Oza, the learned Senior Advocate appearing for the petitioner vehemently submitted that this is a gross case of violation of the provisions of the Forest (Conservation) Act, 1980. Mr.Oza submitted that the facts are very shocking as the State Government permitted a multi-national company to occupy almost 2,76,000 sq.mtrs. of forest land without any prior approval of the Central Government. According to Mr.Oza, the stance of the State Government that they were not aware about such use of forest land by the company is nothing short of an attempt to wriggle out of its duties and liabilities. Mr.Oza submitted that even according to the State Government, its officials acted in collusion with the officials of the company and had got prepared a false survey report to indicate that the land in question was not a 'forest land'. According to Mr.Oza, this would reflect on the bona fide of the State Government as well as the company. Mr.Oza very vehemently submitted before us to take into consideration the conduct of the State Government as well as the company. Mr.Oza submitted that on one hand the stance of the company is that they were not aware that the land was a forest area and on the other hand they tried their best to manage with the government officials to prepare a false survey report. According to Mr.Oza, this fact has been admitted by the State Government and on the State Government s own showing the concerned officials were proceeded with departmentally.

6.2 Mr.Oza submitted that plain language of Section 2 of the Act of 1980 speaks about prior approval of the Central Government . Such being the position, at this stage, now the Central Government has no powers to grant any ex-post facto approval in favour of the State Government on the basis of which the company could be permitted to retain the land and use the same for non-forest purpose. According to Mr.Oza, this is a fit case wherein this Court must interfere in public interest and pass appropriate orders directing the State Government to take over the possession of the land after asking the company to demolish the construction which has been put up.

6.3 Mr.Oza submitted that if at all the State Government wants the prior approval of the Central Government and the Central Government wants to consider such proposal of the State Government, then in such circumstances the condition precedent should be demolition of the construction and handing over of the possession of the forest land. It is only after the State Government takes over the possession of the forest land, it can permit the company to use the land after seeking prior approval of the Central Government under Section 2 of the Act of 1980.

6.4 In such circumstances, Mr.Oza prays that appropriate directions be issued in that regard against the State Government as well as the company. In support of his submissions, Mr.Oza has relied on plethora of decisions, which are as under:

(A) Raghunath Rai Bareja and Another v. Punjab National Bank and Others reported in (2007) 2 SCC

230.

(B) Promoters & Builders Association of Pune v. Pune Municipal Corporation and Others reported in (2007) 6 SCC 143 (C) Beed District Central Coop.

Bank Ltd. v. State of Maharashtra and Others reported in (2006) 8 SCC 514.

(D) Union of India and Another v. Hansoli Devi and Others reported in (2002) 7 SCC 273.

(E) Grid Corporation of Orissa Limited and Others v. Eastern Metals and Ferro Alloys and Others reported in (2011) 11 SCC 334.

(F) D.Velusamy v. D. Patchaiammal reported in (2010) 10 SCC 469.

(G) Nature Lovers Movement v.

State of Kerala and Others reported in (2009) 5 SCC 373.

(H) K. Balkrishnan Nambiar v.

State of Karnataka and Others reported in (2011) 5 SCC 353 (I) Babu Verghese and Others v.

Bar Council of Kerala and Others reported in (1999) 3 SCC 422.

(J) Lafarge Umiam Mining Private Limited T.N.Godavarman Thirumulpad v. Union of India and Others reported in (2011) 7 SCC 338.

(K) T.N.Godavarman Thirumulpad v. Union of India and Others reported in (1997) 2 SCC 267.

(L) Michigan Rubber (India) Limited v. State of Karnataka and Others reported in (2012) 8 SCC

216. (M) Union of India and Others v. Vinod Kumar and Others reported in (1996) 10 SCC 78.

(N) T.N.Godavarman Thirumulpad (through K.M. Chinnappa) v. Union of India and Others reported in (2002) 10 SCC 606.

(O) Tarun Bharat Sangh, Alwar v. Union of India and Others reported in 1993 suppl. (3) SCC 115.

(P) Ambica Quarry Works v.

State of Gujarat and Others reported in (1987) 1 SCC 213.

(Q) M.I.Builders Pvt. Ltd. v.

Radhey Syam Sahu and Others reported in (1999) 6 SCC 464.

(R) Tej Pal Singh v. State of UP and Another reported in (1986) 3 SCC 604.

(S) Ashok Kumar Das and Others v. University of Burdwan and Others reported in (2010) 3 SCC 616.

(T) Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Others reported in (1997) 1 SCC 35.

(U) T.N.Godavarman Thirumulpad (57) v. Union of India and Others reported in (2008) 16 SCC 337.

(V) Dudhganga Vikas Seva Sanstha Maryadit v. District Collector, Kolhapur and Others reported in (2006) 5 SCC 250.

(W) Jamshed N. Guzdar v. State of Maharashtra and Others reported in (2005) 2 SCC 591.

(X) State through Central Bureau of Investigation v. Parmeshwaran Subramani and Another reported in (2009) 9 SCC 729.

(Y) Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority and Others reported in (1997) 11 SCC 605.

(Z) M/s. Sharma Transports v.

State of Maharashtra reported in AIR 2011 SC 3279.

(A1) Under Article 143 (1) of the Constitution v. Union of India reported in 2012 JX (SC) 432.

(A2) B. Saraswathi and Others v. The Tahsildar, Poonamallee Taluka reported in (1998) 3 MLJ 21.

7. SUBMISSIONS ON BEHALF OF THE STATE GOVERNMENT 7.1 Mr.P.K.Jani, the learned Government Pleader appearing for the State Government submitted that this petition is lacking in bona fide. This petition has been preferred by a politician who was the former Member of the Gujarat State Legislative Assembly. According to Mr.Jani, the issues raised in this petition are nothing short of political questions and the entire petition has been preferred with a view to gain political mileage and publicity. Mr.Jani requested us to take note of the time during which this petition was preferred. According to Mr.Jani, the petitioner was aware of the facts since 2010 but thought fit to circulate this petition just a day or two before the Vibrant Gujarat Summit 2013. The whole attempt on the part of the petitioner was to malign the State Government by highlighting that the government had indulged in serious illegal activities of protecting a multi-national company, who has been accused of using 2,76,000 sq.mtrs. of forest land without any prior approval from the Central Government.

7.2 Mr.Jani submitted that this petition should not be entertained only on the ground that the same has been preferred by a politician. Mr.Jani submitted that however genuine a cause brought before a Court by public interest litigant may be, the Court must decline its examination at the behest of a person like the present petitioner, who, in fact, is not a public interest litigant and whose bona fides and credentials are in doubt.

7.3 Mr.Jani, in support of his submissions, relied upon the following decisions.

(i) State of Madhya Pradesh v.

Narmada Bachao Andolan and Another reported in (2011) 7 SCC 639.

(ii) State of Uttaranchal v.

Balwant Singh Chaufal and Others reported in (2010) 3 SCC 402.

(iii) Sudhir C. Shah and Another v. Gujarat Urja Vikas Nigam Ltd. through Managing Director and Others reported in 2012 (2) GLR 1337.

8. SUBMISSIONS ON BEHALF OF THE CENTRAL GOVERNMENT 8.1 Mr.Pankaj Champaneri, the learned Assistant Solicitor General of India appearing on behalf of the Central Government vehemently submitted that his client is yet to take a final decision in the matter of proposal of the State Government dated 24th February 2011. Mr.Champaneri submitted that the proposal was tentatively discussed in the State Advisory Group on 6th June 2012. The State Advisory Group found that the additional conditions stipulated by the State Government as compensation for violation of the provisions of the Forest (Conservation) Act 1980 were adequate. Accordingly, the case was recommended to the Ministry of Environment and Forest for final approval. Mr.Champaneri submitted that in the meantime a copy of user agency s letter dated 31st August 2012 addressed to the nodal officer, Gujarat, was received in the Regional Office of the Ministry of Environment and Forests. The user agency claimed that the land in question belonged to Hazira Apbal Ganotia Sahkari Mandali Limited. The construction activity on the said land was commenced by the company only after obtaining possession from the said society.

8.2 Mr.Champaneri submitted that, in such circumstances, his client has decided to examine the matter in the light of additional information submitted by the company. The State Government and the nodal officer have been asked to express their views on the letter of the company dated 3rd December 2012 but so far his client has not received the views of the State Government in that regard. Mr.Champaneri submitted that since the matter is at large before the Ministry of Environment and Forests, Union of India, this Court may not interfere and pass any orders which may ultimately come in the way of his client to take appropriate decision in the matter. Mr.Champaneri submitted that the issue raised by the petitioner as regards prior approval may also be left to be decided by his client and no opinion be expressed by this Court in that regard.

8.3 Mr.Champaneri assured us that his client will take decision only after examining the entire matter threadbare and keeping in mind the provisions of law, more particularly, the Forest (Conservation) Act, 1980. Mr.Champaneri also submitted that although the State Advisory Group recommended to the Ministry of Environment and Forests for approval, it does not necessarily mean that the government will act solely on such opinion of the State Advisory Group. In such circumstances, Mr.Champaneri prays that the decision be left to the Ministry of Environment and Forests, Union of India, and no orders be passed in the present petition.

9. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2 COMPANY 9.1 Mr.Mihir Joshi, the learned Senior Advocate appearing for Nanavati Associates very vehemently submitted that this petition should not be entertained having regard to the fact that the same has been preferred by a politician and is politically motivated. Mr.Joshi submitted that it is very apparent that only with a view to gain some political mileage and publicity that such petition has been preferred by the petitioner. Mr.Joshi submitted that a true public interest litigation is one in which selfless citizen having no personal motive of any kind except either compassion for the weak and disabled or deep concern of stopping serious public injury approaches the Court for either of the following purposes.

Enforcement of fundamental rights of those who genuinely do not have adequate means of access to the judicial system or statutory provisions incorporating the directive principles of State policy for amelioration of their condition.

Preventing or annulling executive acts and omissions violative of the Constitution or law resulting in substantial injury to the public interest.

9.2 Mr.Joshi submitted that it is beyond controversy that the petitioner is an active political worker affiliated to Congress (I) Party and a former Member of the Gujarat State Legislative Assembly. Mr.Joshi also contended, as contended by Mr.Jani, the learned Government Pleader, that however genuine a cause brought before a Court by a public interest litigant may be, the Court must decline its examination at the behest of a person like the present petitioner, who, in fact, is not a public interest litigant and whose bona fides and credentials are in doubt. Mr.Joshi submitted that the Court may take judicial notice of the fact that public spirited litigants rush to Court to file cases in profusion under its attractive name of public interest. Such persons must inspire confidence in Courts and among the public. They must be above suspicion.

9.3 Mr.Joshi also laid stress on the fact of the time during which the petition was filed and circulated. As submitted by Mr.Jani, the learned Government Pleader, Mr.Joshi also submitted that just a day or two before the Vibrant Gujarat Summit, 2013 this petition was circulated with the sole intention to malign the State Government.

9.4 On merits, Mr.Joshi submitted that his client, by any stretch of imagination, could not be termed as an encroacher or a land grabber as sought to be projected by the petitioner. Mr.Joshi submitted that even according to the State Government due to failure in fixing the boundaries and exact survey, the company had no idea at the relevant point of time when they bought the land from the society that the land was part of the forest area and without seeking prior approval they could not have obtained possession of the same.

9.5 Mr.Joshi submitted that there is no merit in the argument of Mr.Oza that the Central Government has no powers to grant ex-post facto approval to the State Government to permit the company to use the forest land for non-forest purpose. Mr.Joshi submitted that it is no doubt true that Section 2 of the Act of 1980 speaks about prior approval but the argument of Mr.Oza would merit consideration only if the land would have been allotted by the State Government in favour of the company and the State Government thereafter goes before the Central Government to seek prior approval . According to Mr.Joshi, such is not the position so far as the present case is concerned. The State Government, at no point of time, passed any order of allotment of the land in question and it is for the first time that pursuant to the representation of his client that the State Government has sought prior approval of the Central Government. Such being the position, the argument of Mr.Oza that the Central Government has no powers to grant ex-post facto approval is without any merit.

9.6 Mr.Joshi also laid much stress on the Forest (Conservation) Rule 2003. According to Mr.Joshi even the Rules contemplate grant of prior approval in relation to mining and encroachments. A lot of emphasis has been placed by Mr.Joshi on Rule-6, Clause (4) of the Rules 2003.

9.7 Mr.Joshi has also invited our attention to Appendix Form-A, which is for seeking prior approval of the proposals under Section 2 by the State Government and other authorities. Mr.Joshi has drawn our attention to Part-2 of Form-A which seeks information as regards details of compensatory afforestation scheme and also details as regards whether any work in violation of the Act had been carried out.

9.8 Mr.Joshi submitted that this issue of prior approval may be best left to be determined by the Ministry of Environment and Forests of the Central Government and the Central Government may be permitted to take an appropriate decision in the matter.

9.9 In such circumstances, Mr.Joshi submitted that this Court may not interfere and prays for dismissal of this petition.

9.10 In support of his submissions, Mr.Joshi has relied upon the following decisions.

(A) Lafarge Umiam Mining Private Limited v. Union of India and Others (2011) 7 SCC 338.

(B) T.N.Godavarman Thirumulpad v. Union of India (2007) 15 SCC 273.

(D) Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority. (1997) 11 SCC

605. (E) Ashok Kumar Pandey v. State of West Bengal, (2004)3 SCC 349.

(F) Dr. B.Singh v. Union of India, (2004) 3 SCC 363 .

(G) Kunga Nima Lepcha and Others v. State of Sikkim, (2010) 4 SCC 513.

(H) Muni Suvrat-Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad (2006) 8 SCC 590.

(I) Indian Charge Chrome Ltd.

v. Jagdish Rai Puri and Others, (2009) 14 SCC 351.

(J) Union of India and Another v. Bilash Chand Jain and Another, (2009) 16 SCC 601.

(K) Sri Bagawati Tea Estates Ltd. and Another v. Government of India and Others, (1995) 2 SCC 452.

(L) State of U.P. and Others v.

Babu Ram Upadhya, AIR 1961 SC 751.

(M) Principal Chief Conservator of Forests and Another v. J.K.Johnson and Others, (2011) 10 SCC 794.

(N) Raghunathrai Bareja and Another v. Punjab National Bank and Others, 2007 (2) SCC 230.

(O) Jaya Chandra Mohapatra v.

Land Acquisition Officer, Rayagada, 2005 (9) SCC, 123.

(P) Life Insurance Corporation of India v. Escorts Limited and Others, 1986 (1) SCC 264.

10. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for our consideration is whether we should decline to entertain this petition and look into the allegations leveled by the petitioner only on the ground that the petitioner is a politician and a former Member of the Gujarat State Legislative Assembly or we should consider the merits of the petition and pass appropriate orders in that regard.

: A N A L Y S I S :

11. Ordinarily, the court would allow litigation in public interest if it is found :

(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;

(ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;

(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;

(iv) That such person or group of persons is not a busy body or a meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;

(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;

(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;

(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;

(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;

(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;

12. That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.

13. In the case of Shri Sachidanand Pandey Vs. State of West Bengal, reported in AIR 1987 SC 1109, the Supreme Court observed as follows :-

Today public spirited litigants rush to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicion. Public Interest Litigation has now come to stay. But one is led to think that it poses a threat to Courts and public alike. Such cases are now filed without any rhyme or reason. It is therefore necessary to lay down, clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of Public Interest Litigation, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves Administrative and executive functions. This does not mean that traditional litigation should stay out. They have to be tackled by other effective methods, like decentralizing the judicial system and entrusting majority of traditional litigation to Village Courts and Lok Adalats without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying disposal of cases....

It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basis human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially the Supreme court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. It is necessary to have some self-imposed restraint on Public Interest Litigants.

14. In a recent pronouncement of the Hon'ble Supreme Court in the case of State of Uttaranchal Vs. Balwant Singh Chaufal and Ors., reported in (2010) 3 SCC 402, in paragraphs 178, 179, 180 and 181, the Supreme Court laid down the following guidelines relating to Public Interest Litigation:-

178. We must abundantly make it clear that we are not discouraging the Public Interest Litigation in any manner, what we are trying to curb is its misuse and abuse. According to us, this is a very important branch and, in a large number of PIL petitions, significant directions have been given by the Courts for improving ecology and environment, and the directions helped in preservation of forests, wildlife, marine life etc. It is the bounden duty and obligation of the Courts to encourage genuine bonafide PIL petitions and pass directions and orders in the public interest which are in consonance with the Constitution and the laws.

179. The Public Interest Litigation, which has been in existence in our country for more than four decades, has a glorious record. This Court and the High Courts by their judicial creativity and craftsmanship have passed a number of directions in the larger pubic interest in consonance with the inherent spirits of the Constitution. The conditions of marginalized and vulnerable section of society have significantly improved on account of Court's directions in PIL.

180. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other Courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:

(1) The Court must encourage genuine and bonafide PIL and effectively discourage and curb the PIL filed for extraneous consideration.

(2) Instead of every individual judge devising his own procedure for dealing with the Public Interest Litigation, it would be appropriate for each High Court to properly formulates rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to the Secretary General of this Court immediately thereafter.

(3) The Courts should prima-facie verify the credentials of the petitioner before entertaining a PIL.

(4) The Courts should be prima-facie satisfied regarding the correctness of the contents of the petition before entertaining petition.

(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.

(6) The Court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.

(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the Public Interest Litigation.

(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

15. In a much recent pronouncement of the Hon'ble Supreme Court in the case of P.Seshadri Vs. S.Mangati Gopal Reddy and Ors., reported in (2011) 5 SCC 484, has observed that :-

Public Interest Litigation can only be entertained at the instance of bonafide litigants. It cannot be permitted to be used by unscrupulous litigants to disguise personal or individual grievances as Public Interest Litigations. The Supreme Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals i.e. busybodies, having little or not interest in the proceedings. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard. Otherwise the petition is liable to be dismissed at threshold.

16. It is beyond controversy that the petitioner is an active political worker, affiliated with Congress (I) Party and a former Member of the Gujarat State Legislative Assembly. It is also not in dispute that the petitioner, at the relevant point of time, in his capacity as the Member of the Gujarat State Legislative Assembly, had raised this issue in the 8th Session of the Gujarat State Legislative Assembly dated 1st March 2011. It is also not in dispute that the petitioner had addressed a letter dated 4th March 2010 to the Honourable the Chief Minister of the State of Gujarat, highlighting the illegal occupation of 'forest land' by the company.

17. Could it, however, be said that his background as a politician carries with it any odium so as to dis-entitle him to espouse public causes, if otherwise they are entertainable by this Court? We are of the opinion that this petition should not be thrown out merely on the ground that the same has been filed by a political worker belonging to a political party opposed to the ruling party. This writ petition contains serious allegations touching the matters of great public importance. We should not ignore or overlook the fact that as on today the company is in occupation of 2,76,000 sq.mtrs. of forest land without any prior approval from the Central Government. We should also not overlook or ignore the fact that the company is in possession since past almost six years and no steps have been taken till this date by the State Government except forwarding a proposal seeking prior approval in the year 2011. There is no denial to the fact that the land is a forest land and as it has been used for the purpose of construction much damage must have been caused to the environment.

18. For the purpose of locus standi, what is really relevant is the substance of the breaches of the Constitution complained of or any other law enforced, not the antecedents or the status of the person who conveys the information to the Court. We are quite mindful that the Supreme Court in the case of T.N.Godavarman v.

Union of India (supra) has taken the view that however genuine a cause brought before the Court by a public interest litigant may be, the Court has to decline its examination at the behest of a person, who, in fact, is not a public interest litigant and whose bona fides and credentials are in doubt. At the same time, the Supreme Court also took the view that in a given exceptional case where bona fides of a public interest litigant are in doubt, the Court may still examine the issue having regard to the serious nature of the public cause and likely public injury by appointing amicus curiae to assist the Court, but under no circumstances with the assistance of a doubtful public interest litigant.

19. The questions raised in this writ petition, in our considered view, are not political questions. If the acts alleged are in violation of the rule of law or the provisions of the Constitution, or any statutory law, it is no answer to say that because it has been preferred by a politician it becomes a political question and, therefore, should not be adjudicated.

20. It is totally unrealistic to characterize any espousal of cause in a Court of law by a politician on behalf of the general public complaining of Constitutional and statutory violations by the political executive as a politically motivated adventure.

21. By a further affidavit filed on behalf of the respondent no.2 company, few paper cuttings have been placed on record to highlight how publicity was given through the media about the present petition. However, that, by itself, will not make the respondent a busy body or a interloper. It was also sought to be vociferously contended that it was within the knowledge of the petitioner that the land in question is in possession of the respondent no.2 company since 2011 whereas the petition came to be preferred after a period of two years i.e. in the year 2013. We are not impressed by such submission of Mr.Joshi as well as Mr.Jani, although Mr.Oza tried to explain that in the year 2011 the petitioner was a Member of the Gujarat State Legislative Assembly and in view of an order passed by the Honourable Supreme Court, wherein the Supreme Court observed in a petition filed by one of the Members of the Gujarat State Legislative Assembly that questions of the present nature should be raised before the House of the Legislative Assembly and, in such circumstances, the petition was not filed immediately. We are not going into aforesaid the question as we are convinced that although there may be some delay in filing this petition but the fact that the respondent no.2 company is in possession of 2,76,000 sq.mtrs. of forest land without any prior approval of the Central Government is not disputed in the present case. For us such a fact is important.

22. In such circumstances, we overrule the preliminary contention raised on behalf of the respondent no.2 company as well as the State Government and proceed to consider the matter on merits, so far as the other issues which have been raised during the course of the hearing of this petition are concerned.

23. The second question that falls for our consideration is whether the Central Government has powers at this stage to consider the proposal forwarded by the State Government dated 24th February 2011 and to pass appropriate orders in terms of Section 2 of the Act of 1980 permitting the respondent no.2 company to use the forest land for a non-forest purpose. According to Mr.Oza, the learned Senior Advocate appearing for the petitioner the stage for the Central Government to consider the proposal of the State Government dated 24th February 2011 has gone in light of the specific terms of Section 2 of the Act of 1980. According to Mr.Oza, the Legislature has thought fit to use the words prior approval and once the word prior is used it rules out grant of any ex-post facto approval. In such circumstances, according to Mr.Oza, the Central Government will have no other option but to reject the proposal and, if such be the case then, according to Mr.Oza, it would be an empty formality and, therefore, Mr.Oza insisted that this Court should put an end to the matter directing that the respondent no.2 company should demolish the construction and hand over the possession of the occupied forest land to the extent of 2,76,000 sq.mtrs. to the State Government. To appreciate this argument, we need to look into few relevant provisions of the Forest (Conservation) Act, 1980. This Act of 1980 was enacted to provide for the conservation of forests and for the matters connected therewith or ancillary or incidental thereto. The statement of objects and reasons of the Act reads as under:

Statement of objects and reasons Deforestation causes ecological imbalance 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 dereservation of reserved forests and for use of forest land for non-forest purposes. The Ordinance also provided for the constitution of an advisory committee to advice the Central Government with regard to grant of such approval.

The Bill seeks to replace the aforesaid Ordinance.

24. In T.N. Godavarman Thirumulpad v. Union of India and others [(1997) 2 SCC 267], the Supreme Court adverted to the misconception entertained in certain quarters about the true scope of the 1980 Act and the meaning of the word "forest" used therein and held as under

in paragraph 4 :

The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest" must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State of Gujarat, Rural Litigation and Entitlement Kendra v. State of U.P. and recently in the order dated 29-11-1996 (Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this Court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay."

25. In T.N.Godavarman Thirumalpad (through Shri K.M.Chinappa) (supra) while explaining the importance of environment and forests, the Supreme Court made following observations in paragraph 17.

17. Article 48-A in Part IV (Directive Principles) of the Constitution of India, 1950 brought by the Constitution (42nd Amendment) Act, 1976, enjoins that "State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country." Article 47 further imposes the duty on the State to improve public health as its primary duty. Article 51-A(g) imposes "a fundamental duty" on every citizen of India to protect and improve the natural "environment" including forests, lakes, rivers and wild life and to have compassion for living creatures. The word "environment" is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance." It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including the right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the manmade and the natural environment. Therefore, there is constitutional imperative on the Central Government, State Governments and bodies like Municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measure to promote, protect and improve the environment man-made environment and natural environment.

26. The Supreme Court in Tarun Bharat Sangh, Alvar (supra), while explaining the effect of an area being declared as protected forest made the following observations in paragraph 18.

18. Once an area is declared as a protected forest it comes within the purview of the Forest (Conservation) Act, 1980. It becomes a forest land within the meaning of Section 2. The effect of this position is that non-forest activity can be carried on in the said area except with the prior approval of the Central Government. Even the State Government cannot carry on any such non-forest activity in the said area without such prior approval. That the mining activity amounts to non-forest purpose is beyond dispute. Thus the grant of mining leases/licenses and their renewal by the State Government, without obtaining the prior approval of the Central Government in respect of the mines situated within the protected forest after January 1, 1975 is contrary to law. All the mines listed in Appendix A to the Committee s Report do fall within the areas declared as protected forest while the mines listed in Appendix-B fall partly within and partly outside such areas. According to rule 4(6) of the Rajasthan Minor Mineral Concession Rules, 1986 too, no mining lease could have been granted or renewed within the forest "without clearance from the Central Government in accordance with the Forest (Conservation) Act, 1980 and the Rules made there-under. Admittedly, no such prior approval or clearance of Central Government was obtained. The Chairman of the Committee, Shri Justice M.L.Jain has recommended that 215 mines mentioned in Appendix 'A' to his report, which are situated wholly within the protected forest should be closed forthwith. There can hardly be any valid objection in law to the said recommendation. Similarly, with respect to 47 mines mentioned in Appendix 'B' to the report, the learned Chairman has recommended that they should be closed forthwith insofar as they fall within the protected forest. To this recommendation also, there can be no valid objection in law.

27. What is discernible from the above referred decisions of the Supreme Court is that the object of the Act of 1980 is conservation of forests and to prevent depletion thereof. As held by the Supreme Court in Nature Lovers Movement (supra), the Court is bound to interpret the provisions of that Act in a way which would further the object of the legislation. After enforcement of the Act of 1980, the State Governments were denuded of suo motu powers to deal with 'reserved forests' or 'forest land' and permit use thereof for non-forest purposes. They could do so only after obtaining prior approval of the Central Government.

28. We shall now look into the statutory provisions of the Act of 1980. Section 2 of the Act reads as under:

2. Restriction on the dereservation 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;

[(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.] [Explanation. -

For the purposes of this section non-forest purpose means the breaking up or cleaning of any forest land or portion thereof for-

(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants;

(b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.] [2A. Appeal to National Green Tribunal.---Any person aggrieved, by an order or decision of the State Government or other authority made under section 2, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.]

29. Section 3 of the Act provides as under:

3. Constitution of Advisory Committee.--- The Central Government may constitute a Committee consisting of such number of persons as it may deem fit to advise that Government with regard to --

(i) the grant of approval under section 2; and

(ii) any other matter connected with conservation of forests which may be referred to it by the Central Government.

[3A. Penalty for contravention of the provisions of the Act.--Whoever contravenes or abets the contravention of any of the provisions of section 2, shall be punishable with simple imprisonment for a period which may extend to fifteen days.] [3B. Offence by authorities and Government departments.--(1) Where any offence under this Act has been committed--

(a) by any department of Government, the head of the department; or

(b) by any authority, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the authority for the conduct of the business of the authority as well as the authority, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render the head of the department or any person referred to in clause (b), liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

Notwithstanding anything contained in sub-section (1), where an offence punishable under the Act has been committed by a department of Government or any authority referred to in clause (b) of sub-section (1) and it is proved that the offence has been committed with consent or connivance of, or is attributable to any neglect on the part of, any officer, other than the head of the department, or in the case of an authority, any person other than the persons referred to in clause

(b) of sub-section (1), such officer or persons shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.]

30. Section 2 of the Act imposes restrictions on the use of forest land for non-forest purposes and it will not be confined to reserved forests alone. The Act can have no application to the territories administered by the Central Government. The object of Section 2 of the Act is to give an overall power reserved to Central Government to supervise the acts of State Government in respect of the conservation of forest. Since all Acts and Orders in Union Territory are that of Central Government there can be no question of Central Government passing order with prior approval of itself. Section 3A of the Act imposes penalty for contravention of the provisions of Section 2 of the Act. The Act applies to renewal of mining lease as well and even if there was provision for renewal in lease agreement on exercise of lessees option requirements of the Act had to be satisfied before grant of renewal.

31. In the decision reported in M. C. Mehta v. Kamal Nath (1997) 1 SCC 388, it has been held that the doctrine of public trust is invoked and applied by the Courts in India in that all natural resources including forest belonging to the people and that the Government will be the custodian of such natural resources. In the above case, a private company, Span Motels Private Limited had built a club at the bank of River Beas by encroaching land including substantial forest land which was later regularised and leased out to the company when Kamal Nath was the Minister. The Supreme Court took note of the news items because the facts disclosed therein pertain to serious act of environmental degradation on the part of the Motel. The main allegation in the said news item was that the course of the river was being diverted to save the Motel from future floods. Disposing of the writ petition, the Supreme Court has held as follows :

"The notion that the public has a right to expect certain lands and natural areas to retain their natural characteristic is finding its way into the law of the land. The ancient Roman Empire developed a legal theory known as the 'Doctrine of the Public Trust.' The Public Trust Doctrine Primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes......"

A mere reading of Section 2 of the Act clearly shows that prior approval of the Central Government is mandatory as well as a pre-condition of the grant of lease of forest lands for non-forest purposes. It is the well known principle of interpretation of law that the expressed intention of the statute must be given its full effect and that such an expressed intention should not be tinkered with, by introducing something which runs counter to the said intention.

33. The prior approval of the Central Government is an essential pre-condition, as laid down by the Apex Court in the following decision cited by Mr.Y.N.Oza, learned senior counsel for the petitioner. In the decision reported in Ambica Quarry Works v. State of Gujarat (1987) 1 SCC 213 : (AIR 1987 SC 1073) it has been held as follows :

"The said section makes it obligatory for the State Government to obtain the permission of the Central Government for (1) dereservation of reserved forest and (2) for use of forest land for non-forest purposes. It is apparent, therefore, that the two dual situations were intended to be prevented by the legislation in question, namely dereservation of reserved forest, and use of forest land for non-forest purposes. (para 7)"

"In that view of the matter and the scheme of the Act, in our opinion, the respondents were right and the appellants were wrong. All interpretations must subserve and help implementation of the intention of the Act. This interpretation, in our opinion, will subserve the predominant purpose of the Act." (para 20) In the decision reported in Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504 : (AIR 1989 SC 594), the Supreme Court held that the requirement of obtaining approval of Central Government under S. 2, a mandatory condition precedent to grant as well as renewal of mining leases in forest area.

35. Further, the provisions of Sections 3A and 3B provide for contravention of the provisions of the Act as well as offence by the authorities and Government Departments. When once the consequence of non-observance of a condition is also provided, then the said condition is mandatory and there could be no question of countenancing any substantial compliance. The reasons requiring such prior approval even before such grant of lease is not far to seek. It is absolutely essential that the State Government if it decides to grant the lease in respect of forest land for non-forest purposes, must first approach the Central Government for its prior approval for grant of such lease and thereafter individual applications for grant of lease have to be taken up and considered, as otherwise it will open the door for corruption, manipulation and nepotism as has been held by the Supreme Court in respect of a stage carriage permit under the Motor Vehicles Act in the decision reported in R. O. Naidu v. Addl. S.T.A.T., Madras, AIR 1969 SC 1130 in which the need for grant of permit should first be determined and thereafter only the applications must be taken up and considered. In the said decision, the Supreme Court has observed in paras 4 and 5 of its judgment as follows :

"4. Sub-section (3) of S. 47 of the Act requires the Regional Transport Authority to limit the number of stage carriage permits that may be granted in a route having regard to the matters mentioned in sub-section (1) of that section. The question for determination is whether the determination as to the number of stage carriages required on a route should be done at a stage anterior to that of entertaining applications for stage carriage permits or that it could be done at the time it considers applications made by operators for stage carriage permits in that route. The R.T.A. has proceeded on the basis that that question can be decided while considering the applications made to it for permits by operators whereas the Appellate Tribunal and the High Court have taken a contrary view.

5. Sub-section (3) of S. 47 of the Act if read by itself does not throw any light on the controversy before us but if Ss. 47 and 57 of the Act are read together it appears to us to be clear that the view taken by the Appellate Tribunal and the High Court is the correct view. If contrary view is taken, it will throw open the door for manipulations and nepotism. There may be possibility of the personality of the applicant influencing the decision of the R.T.A. on the question of need for a stage carriage permit in the route and thereby public interest which should be the main consideration while taking a decision under S. 47(3) may suffer. If we accept the view taken by the R.T.A. as correct, an operator, who happens to apply for the route first will be in a commanding position. The R.T.A. will have no opportunity to choose between competing operators and hence public interest might suffer."

36. Therefore, we are of the view that whenever a statute prescribes that a particular act is to be done in a particular manner, and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory.

37. We shall now look into the Forest (Conservation) Rules, 2003. Rule 6 of the Rules reads as under:

6.

Submission of proposals seeking approval of the Central Government under Section 2 the Act.-(1) Every User Agency who wants to use any forest land for non-forestry purposes, shall make its proposal in the relevant Form appended to these rules, i.e. Form A for proposals seeking first time approval under the Act, and Form B for proposal seeking renewal of leases, where approval of the Central Government under the Act had already been obtained, to the Nodal Officer of the concerned State Government or the Union Territory Administration, as the case may be, along with requisite information and documents, complete in all respects.

(2) The User Agency shall endorse a copy of the proposal, along with a copy of the receipt obtained from the office of the Nodal Officer, to the concerned Divisional Forest Officer or the Conservator of Forests, Regional Office as well as the Monitoring Cell of the Forest Conservation Division of the Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, New Delhi-110 003.

(3) (a) After having received the proposal, the State Government or the Union Territory Administration, as the case may be, shall process and forward it to the Central Government within a period of two hundred and ten days of the receipt of the proposal including the transit period.

(b) The Nodal Officer of State Government or as the case may be, the union Territory Administration, after having received the proposal under sub-rule (1) and on being satisfied that the proposal is complete in all respects and requires prior approval under Section 2 of the Act, shall send the proposal to the concerned Divisional Forest Officer within a period of 10 days of the receipt of the proposal:

Provided that on the determination regarding completeness of the proposal or the expiry of ten days, whichever is earlier, the question of completeness or otherwise of the proposal shall not be raised.

If the Nodal Officer of the State Government or the Union Territory Administration, as the case may be, finds that the proposal is incomplete, he shall return it within the period of ten days as specified under clause (b), to the User Agency and this time period shall not be counted for any future reference.

(d) The Divisional Forest Officer or the Conservator of Forests shall examine the factual details and feasibility of the proposal, certify the maps, carry out site inspection and enumeration of the trees and forward his findings in the Format specified in this regard to the Nodal Officer within a period of ninety days of the receipt of such proposals from him.

(e) (i) The Nodal Officer, through the principal Chief Conservator of Forests, shall forward the proposal to State Government or the Union Territory Administration, as the case may be, along with his recommendations, within a period of thirty days of the receipt of such proposal from the Divisional Forest Officer or the Conservator of Forests.

The State Government or the Union Territory Administration, as the case may be, shall forward the complete proposal, along with its recommendations, to the Regional Office or the Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, New Delhi- 110 003, as the case may be, in the specified Forms within a period of sixty days of the receipt of the proposal from the Nodal Officer:

Provided that all proposals involving clearing of naturally grown trees on the forest land or a portion thereof for the purpose of using it for reforestation shall be sent in the form of Working Plan or Management Plan.

Provided further that the concerned State Government or as the case may be, the Union Territory Administration, shall simultaneously sent the intimation to the User Agency about forwarding of the proposal, along with its recommendations, to the Regional Office or the Ministry of Environment and Forests, as the case may be.

(f) If the proposal, along with the recommendations, is not received from the concerned State Government or the Union Territory Administration, as the case may be, till fifteen days of the expiry of the time limit as specified under clause (a), it shall be construed that the concerned State Government or as the case may be, the Union Territory Administration, has rejected the proposal and the concerned State Government or the Union Territory Administration shall inform the User Agency accordingly:

Provided that in case the State Government or the Union Territory Administration, as the case may be, subsequently forward the proposal, along with its recommendations, to the Regional Office or the Ministry of Environment and Forests, as the case may be, the proposal shall not be considered by the Central Government unless an explanation for the delay to the satisfaction of the Central Government is furnished, together with action taken against any individual held to be responsible for the delay.

The proposal referred to in clause (e) (ii) of sub-rule (3), involving forest land upto forty hectares shall be forwarded by the concerned State Government or as the case may be, Union Territory Administration, along with its recommendations, to the Chief Conservation of Forests or the Conservator of Forests of the concerned Regional Office of the Ministry of Environment and Forests, Government of India, who shall within a period of forty-five days of the receipt of the proposal from the concerned State Government or the Union Territory Administration, as the case may be (a) decide the diversion proposal upto five hectares other than the proposal relating to mining and encroachments, and (b) process, scrutinize and forward diversion proposals of more than five hectares and up to forty hectares including all proposal relating to mining and encroachments upto forty hectares, along with the recommendations, if any, to the Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, New Delhi-110 003, for obtaining the decision of the Central Government and inform the State Government or the Union Territory Administration, as the case may be, and the User Agency concerned.

(5) The Regional Empowered Committee shall decide the proposal involving diversion of forest land up to forty hectares other than the proposal relating to mining and encroachments, within forty-five days of the receipt of such proposal from the State Government or the Union Territory Administration, as the case may be:

Provided that the Central Government may, if consider it necessary, enhance or reduce the limit of the area of the forest land.

(6) The proposal referred to in clause (e) (ii) of sub-rule (3), involving forest land of more than forty hectares shall be forwarded by the concerned State Government or as the case may be, the Union Territory Administration, along with its recommendations, to the Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, New Delhi-110 003 .

38. In the present case, indisputably there is no order passed by the State Government or other authority directing that the forest land which the respondent no.2 is occupying as on today may be used for non-forest purpose. Even if the State Government or any other authority wants to pass any such order directing that any of the forest land or any portion thereof may be used for any non-forest purpose, prior approval of the Central Government is necessary. This is very much evident on plain reading of the Section 2 itself and there cannot be any debate on this issue. The only question with which we are confronted in the peculiar facts of the present case is whether the Central Government at this stage can grant the prior approval or the same would amount to ex-post facto approval which is not permissible in law.

39. Mr.Oza has invited our attention to the decision of the Supreme Court in the case of Ashokkumar Das and Others (supra) in which the Supreme Court has explained the word approval and what would be the effect if prior is attached before the word approval . The Supreme Court in paragraphs no.11, 12, 13, 14 and 15 of the judgment observed as under:

11. In Black s Law Dictionary (Fifth Edition), the word approval has been explained thus:

Approval.-The act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another. Hence, approval to an act or decision can also be subsequent to the act or decision.

12. In U. P. Avas Evam Vikas Parishad (supra), this Court made the distinction between permission, prior approval and approval. Para 6 of the judgment is quoted hereinbelow:

6. This Court in Life Insurance Corpn. of India v. Escorts Ltd. [(1986) 1 SCC 264], considering the distinction between special permission and general permission , previous approval or prior approval in para 63 held that:

63. we are conscious that the word prior or previous may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29(1) of the Act.

Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act. As to the word approval in Section 32 (2) (b) of the Industrial Disputes Act, it was stated in Lord Krishna Textile Mills Ltd. v. Workmen [AIR 1961 SC 860], that the Management need not obtain the previous consent before taking any action. The requirement that the Management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in Section 33(1).

13. Following the decision in U. P. Avas Evam Vikas Parishad (supra), this Court again held in High Court of Judicature for Rajasthan v. P. P. Singh & Ors. (supra) in para 40:

40. When an approval is required, an action holds good. Only if it is disapproved it loses its force. Only when a permission is required, the decision does not become effective till permission is obtained. (See U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd.).

14. Section 21

(xiii) of the Burdwan University Act, 1981 is quoted herein below:-

21. Powers and functions of the Executive Council.- Subject to the provisions of this Act, the Executive Council shall exercise the following powers and perform the following functions:

(i) to (xii) &&&&&&&&

(xiii) to determine, with the approval of the State Government, the terms and conditions of service of Librarians and non-teaching staff.

15. The words used in Section 21 (xiii) are not with the permission of the State Government nor with the prior approval of the State Government , but with the approval of the State Government . If the words used were with the permission of the State Government , then without the permission of the State Government the Executive Council of the University could not determine the terms and conditions of service of non-teaching staff. Similarly, if the words used were with the prior approval of the State Government , the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff without first obtaining the approval of the State Government. But since the words used are with the approval of the State Government , the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise.

40. Mr.Oza submitted that literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language. The literal rule of interpretation as held by the Supreme Court in Raghunathray Bareja (supra) is not only followed by Judges and lawyers but it is also followed by the layman in his ordinary life. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule. Even if the literal interpretation results in hardship or inconvenience, it has to be followed. Mr.Oza deriving support from the decision of the Supreme Court in the case of Ashokkumar Das and Others (supra) contends that since the expression prior approval has been used in contradistinction to the word approval , the approval cannot be ex-post facto. According to Mr.Oza, once we hold so then there is no question thereafter for the Central Government to consider the proposal of the State Government for grant of ex-post facto approval.

41. The submissions of Mr.Oza although, in the first blush, appears to be attractive but on close scrutiny of the same we are afraid, we should not take the view as suggested by Mr.Oza.

42. We are of the opinion that even if the Central Government at this stage decides to look into the proposal of the State Government for permitting the respondent no.2 company to occupy 2,76,000 sq.mtrs. of forest land, it will not amount to granting ex-post facto approval. The reason is plain and simple. This principle which Mr.Oza has tried to highlight would have been applicable only in the event, had any order or permission been granted by the State Government or other authority permitting the respondent no.2 company to use the forest land or any portion thereof for any non-forest purpose. Had it been so, then in such circumstances, Mr.Oza would have been quite justified in submitting that the State Government now cannot pray for necessary approval as the same would amount to ex-post facto approval which is not recognized in law in view of the expression prior approval in Section 2 of the Act of 1980.

43. However, we are unable to accept the extreme argument of Mr.Oza that in all cases of encroachment the Union will have no power or jurisdiction to regularize the same if it has been prayed for in the peculiar facts and circumstances of the case. Even going through the entire Rule 6 as well as Form-A, which we have referred to above, such a construction is not permissible.

44. In the present case, the State Government has made its stance very clear. According to the State Government, they had not passed any order directing that the forest land or any portion thereof may be used by the respondent no.2 for non-forest purpose. According to the State Government, it came to their notice in the year 2007. Thereafter, an inquiry was initiated, and in the first round of inquiry it was revealed that the land occupied and in possession of the respondent no.2 company was not a part of the forest area but the same was outside the forest area. The second round of inquiry revealed that the land occupied and in possession of the respondent no.2 company was a forest area and the respondent no.2 company could not have put up any construction without prior approval of the Central Government. It is only when the State Government received a proposal from the respondent no.2 company to permit them to remain in occupation and possession of the land in question that the State Government thought fit to seek prior approval of the Central Government in that regard.

45. Mr.P.K.Jani, the learned Government Pleader has also made his stance very clear. According to Mr.Jani, the State Government has forwarded the proposal and it is for the Central Government now to take into consideration the relevant aspects of the matter and take an appropriate decision. If the Central Government finally decides that no case has been made out for grant of prior approval in the facts of the case, then in such circumstances the State Government will definitely see to it that the construction is demolished and the possession of the forest land is taken over by the State Government. On the other hand, if the Central Government decides to grant approval in favour of the State Government permitting the respondent no.2 company to occupy and possess the land, then in such circumstances the Central Government may consider whether the proposal of the respondent no.1 for payment of penalty to the tune of 2.5 times the market value of the land in question and taking over possession of 110 hectares of land at Palitana for the purpose of afforestation is adequate or not.

46. We are of the view that it is ultimately for the Central Government to take an appropriate decision in the matter and we should not usurp its jurisdiction. All that we have decided in this petition is that the Central Government will have the jurisdiction to consider the proposal forwarded by the State Government. How to consider, what to consider and what should be the ultimate decision is left best to the wisdom of the Central Government. We are sure that in taking an appropriate decision, the Central Government will keep in mind the object of the Forest (Conservation) Act, 1980 as well as the law laid down by the Supreme Court in various decisions in that regard.

47. At this stage, we may also consider the submission of Mr.Joshi, the learned Senior Advocate appearing on behalf of the respondent no.2 company to the effect that an ex-post facto approval has been recognized by the Supreme Court in the case of Lafarge Umiam Mining Limited (supra).

It is true that the Supreme Court in that case did approve the grant of ex-post facto approval but the same was in peculiar facts of the case. We do not want to go in detail so far the decision of the Supreme Court in Lafarge Umiam Mining Limited (supra) is concerned, as we have already expressed our opinion in that regard. Mr.Joshi also laid stress on the observations made by the Supreme Court in paragraph 8 of Bagavati Tea Estates Limited (supra) in which the Supreme Court took the view that the Forest (Conservation) Act does not prohibit the clearance of forests altogether. All that it says is that no such clearance shall take place without the prior approval of the Central Government. The Supreme Court further held that the power was not an absolute one but qualified. The Supreme Court took the view that it was not possible to agree with the submission of the learned counsel for the petitioners of that case that the Central Government was bound to decline prior approval under Section 2 of the Forest (Conservation) Act, 1980. The Court took the view that it should not decide for the Central Government nor the Court could presume so and invalidate the Act on that ground. In light of the view which we have taken, it is not necessary for us to consider and deal with the other decisions relied upon by Mr.Joshi in support of his submissions.

48. It may not be out of place to state that out of 28 decisions relied on by Mr.Oza in support of his submissions most of them are on the principle that the language implied in a statute is the determinative factor of the legislative intent and the legislature is presumed to have made no mistake. Where the legislative intent is clear from the language, the Court should give effect to it and the Court should not seek to amend the law in the garb of interpretation. In the present case, we have followed such principle and there cannot be any dispute as regards proposition of law. Our view is that there is still some scope for the Central Government to consider the proposal of the State Government as regards grant of prior approval to the State Government.

49. The other decisions relied upon by Mr.Oza are concerning the environment issues and few relevant decisions we have considered and discussed. It is not necessary for us to deal with other decisions in light of the view which we have taken.

50. Before concluding, we would like to observe that occupation and possession of 2,76,000 sq.mtrs. of forest land by the respondent no.2 company without any prior approval is a matter of serious concern. Although the company appears to be in possession of the land since 2007 no final decision has been taken till this date, even after a lapse of almost six years. It appears from the materials on record that the State Advisory Group of the Central Government has taken a formal decision recommending approval to the Ministry of Environment and Forests, Central Government, subject to certain terms and conditions but the Ministry of Environment and Forest of the Union Government is yet to take a final decision in the matter. It appears from the affidavit-in-reply filed on behalf of the Central Government that they are waiting for the view of the State Government on the representation which has been made by the respondent no.2 company. If the views as called for by the Central Government from the State Government vide letter dated 3rd December 2012 have not been sent, then in such circumstances, the State Government is directed to express its view on such representation of the respondent no.2 company and forward the same to the Ministry of Environment and Forests, Union of India, within a period of two weeks from today. On receipt of such views of the State Government, the Ministry of Environment and Forests, Union of India, is hereby directed to take a final decision in the matter within a period of four weeks thereafter without fail. Matters of the present nature concerning environment and forests should not be kept in limbo as that would frustrate the very object of the enactment of the Act of 1980 and other forest legislations.

51. We also clarify that in the event the Central Government in its Ministry of Environment and Forests, takes the view that no case has been made out for grant of approval and thereby rejects the proposal of the State Government dated 24th February 2011, then in such circumstances the respondent no.2 company shall demolish the construction which has been put up on the forest land within a period of six weeks from the date of communication of such decision by the Central Government and hand over vacant and peaceful possession of the land to the State Government immediately thereafter, subject to the right of the respondent no.2 company to challenge such a decision before the appropriate forum in accordance with law. We also direct the State Government to immediately take steps for demolition and taking over of the possession of the land, in the event the Central Government decides not to grant approval and regularize the possession of the respondent no.2 company.

52. It is needless to state that if the petitioner is aggrieved in any manner by the decision which the Central Government may take in the matter then it will be open for the petitioner to challenge such a decision before the appropriate forum in accordance with law.

53. With the above observations and directions, we close this Public Interest Litigation and dispose of the same accordingly. Let this matter be notified before this Court on 27th June 2013 to report compliance of our directions. Certified copy be given by 6th May 2013, if applied for.

(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) *malek Page 72 of 72

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