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Showing contexts for: non forest purpose in Anupama Minerals vs Union Of India And Ors. on 20 December, 1984Matching Fragments
It was observed :
"Section 2 does not absolutely prohibit the use of the forest land or serve forest or any part thereof non-forest purpose. All that it says is that no State Government or other authority shall make an order directing the reserve forest or forest land or any portion thereof to be used for a non-forest purpose except with the prior approval of the Central Government (of course the section also prohibits dereservation of a reserve forest or any part thereof in a similar fashion). It must accordingly he held that the rejection of the petition filed by the petitioner for renewal of the mining lease with reference to S. 2 was invalid and irregular. What the respondents ought to do is that if they find the renewal application to be in order in all other respects they must address the Central Government, enclosing all the relevant material for its orders in terms of S. 2 of the Act and it is for the Central Government to decide on such material Whether to grant the prior approval or not. The respondents are therefore directed to take action accordingly as early as possible."
Rule 5 prescribes the matters which the Advisory Committee should take into consideration while tendering its advice to the Central Government on the proposals referred to it. The Advisory Committee is also entitled to suggest any conditions or restrictions on the use of any forest land for any non-forest purpose which in its opinion, would minimise adverse environmental impact. The factors, which the Committee ought to take into consideration while tendering its opinion, are :
"(a) Whether the forest land proposed to be used for non-forest purpose forms part of the nature reserve, national park, wildlife sanctuary biosphere reserve or forms part of the habitant of any endangered or threatened species of flora and fauna or of an area lying in severely eroded catchment;
X X X X Signature of the authorised Officer of the State Government Authority N. B. :- While furnishing details of flora and fauna, the species should be described by their Scientific name."
17. It is thus clear, on a reading of the Act and the Rules, that with effect from the date of coming into force of the Act, neither the State Government nor any other authority is entitled to permit any forest land or any portion thereof to be used for any non-forest purpose except with the prior approval of the Central Government. "Non-forest Purposes" means breaking up or clearing of a forest land or portion thereof for any purpose other than reafforestation. Indisputably using a forest land or a portion thereof for the purpose of mining is a non-forest purpose. According to R. 4, "every State Government or other authority" seeking prior approval of the Central Government shall send its proposal to the Government along with particulars specified in Annexure to the Rules. The annexure requires the authorities seeking the prior approval to furnish all relevant particulars, including the specific recommendation of the Chief Conservator of Forest, so as to enable the Central Government to take a proper and correct decision, consistent with the object and intendment, underlying the Act. In particular, Cl. (Iv) of item 7 in the prescribed pro forma requires the authority seeking prior approval of the Central Government to set out "specific recommendations of the Chief Conservator of Forests/Head of the Forest Department for accepting or otherwise of the proposal with reasons thereof." The authority is also required to append a certificate that all other alternative for the purpose have been explore and that the demand for the required are a is the minimum demand for forest land. Before the Central Government accords or refuses its approval under S. 2, it has to consult the Advisory Committee, which Committee is directed to take into consideration the several factors mentioned in R. 5 while tendering its opinion. The factor mentioned in R. 5 emphaxize the concern of the Central Government to conserve the forests. After receiving the opinion of the Advisory Committee, the Central Government is entitled to make such further enquiry, as it may consider necessary in a given matter, and either grant the approval with or without conditions or reject the request for prior approval.
20. Since under the F. C. Rules, 1981 prior approval has to be sought for either by the State Government or other authority, as clarified above, it is not correct to contend that the Forest Department of the State Government alone is the proper authority to seek prior approval, in the prescribed pro forma, i.e., under S. 2 of the Act. Indeed the Forest Department of the State Government does not directly come into picture, except probably in a case where the Forest Department itself wants to use the Forest land or portion thereof for a non-forest purpose. The prior approval has to be sought for in the prescribed pro forma by the authority which requires a forest land or a portion thereof to be used for a non-forest purpose, which, in this case, means the Deputy Director of Mines and Geology. No doubt, such authority shall have to ask for and collect all necessary information required to be stated in the pro forma from the Forest Dept., he was also got to obtain the specific opinion of the Chief Conservator of Forests with respect to his proposal and forward it to the Central Government, as clarified above. But, what is clear is that the pro forma has to be sent by and the prior approval has to be sought, by the authority which requires a forest land or a portion thereof for a non-forest purpose. This aspect we are emphasizing in view of the contention urged before us by the learned Government Pleader that once the F. C. Act and the Rules come into force, the prior approval has to be sought for only by the Forest Department and not by any other authority. The learned Government Pleader relies upon a letter No. 8-480-PRY (Coord) (Pt) from Sri. M. V. Kesavan, Under Secretary to the Government of India, Ministry of Agriculture, (Department of Agriculture and Co-opn.) New Delhi, dated 9th Sep., 1981 addressed to the Forest Secretaries of all States and Union Territories. The letter states that the practice of individual departments of the State Governments, addressing the Central Government for prior approval, is not correct and that "it is the administrative responsibility of the Forest department, which is the real custodian and owner of the forests in each State, to correspond with the Central Government regarding transfer of forest areas etc., under the Act." The letter further states that it would not be proper to shift this responsibility to other Departments of the State after issuing a "No objection certificate." The letter finally states, "it has accordingly been decided that proposals for deservations etc., under the Forest (Conservation) Act, 1980 will be entertained by this Ministry only from the Forest department of State/Union Territories." Reliance is also placed by the learned Government Pleader upon another letter from the same officer of the Central Government dated 26-10-1981 addressed to the Chief Secretaries of the State Governments in Union Territories stating that "proposals for this purpose (under S. 2 of the Act) should be submitted through the Forest Department of the respective State/Union Territory in the prescribed pro forma enclosed with this letter." We are, however, of the opinion that the said officer appears to have not correctly appreciated the import of the procedure prescribed by the rules. The Rules nowhere say that the prior approval of the Central Government should be sought for only by the Forest Department. On the other hand, R. 4 speaks of permission being sought for by the 'State Government or other authority." Moreover, the prescribed form requires the authority to mention the specific recommendations of the Chief Conservator also in the said pro forma. The difficulty in agreeing with the view expressed in the aforesaid letter of the Central Government is that in a case where an authority seeks the prior approval of the Central Government and it is obliged to sent the proposals through the Forest Department. The Forest Department may sit tight over the proposal and may choose not to forward the same to the Central Government at all, in case it is not agreeable to the proposal. It would mean practically conferring a power of veto on the Forest Department of the State in such matters. The Act contemplates the prior approval to be granted or refused by the Central Government and not by the State Government to take a decision in the matter on the basis of the material furnished in the prescribed proforma. The opinion of the Advisory Committee and such further material as it may gather in the further enquiry which it may choose to make in a given case. For this purpose, it is equally necessary that the opinion of the authority seeking permission must also be before the Central Government. The authority seeking the permission may state the reasons why the forest land or a portion thereof should be used for a non-forest purpose. It is not difficult to imagine a case where the public interest itself demands that a particular forest land or a portion thereof is put to a non-forest use. Take a case where a very valuable mineral is found in the reserve forest. Public interest demands that it should be quarried, or take a case where a railway line has to be paid or a power plant has to be established through or in a forest land; the concerned authority till give reasons why it is necessary to use the forest land for such a non-forest purpose. These reasons must also be before the Central Government as also the opinion of the Forest department. All this constitutes the relevant material upon which the Central Government has to take a decision. For the above reasons, we are of the opinion that the prior approval has to be sought for either by the State Government or by an authority, whoever it is, who proposes to use the forest land or portion thereof for a non-forest purpose. The State Government or such other authority can send the proposal directly to the Central Government, it need not route it through the forest Department of the State Government. Of course, as clarified above, the proforma has to give full information required by it including the specific recommendation of the Chief Conservator (whether for or against the proposal) and must also be enclosed by a copy of the recommendation of the Chief Conservator as clarified by us.