Document Fragment View

Matching Fragments

11. This view of ours is supported by the decision of the Supreme Court in State of Bihar v. Banshi Ram, , which has indeed been relied upon by the learned counsel for the appellant. For a proper appreciation of the ratio of the said decision, it is necessary to notice the facts of that case. The respondent in the appeal before the Supreme Court was granted a mining lease for mining and winning mica in respect of an area of 80 acres, which formed part of a reserved forest, The mining lease was executed in April, 1966. The lease was for a period of 20 years. At the relevant time the lessee was carrying on mining operations only in an extent of about 5 acres. While carrying out the mining operations he came across two other minerals, namely, felspar, and quartz. Under the terms of the lease, he was obliged to report to the State Government the discovery of any other mineral in the leased area; he was entitled to win and dispose of such mineral only if a lease was granted to him in that behalf. Accordingly, he intimated the authorities and a supplemental lease deed was executed, co-extensive with the original lease deed, permitting him to win and quarry the two new minerals as well. On coming to know of the same, the Government of India (Ministry of Agriculture) wrote to the Chief Secretary to the Government of Bihar, drawing his attention to the provisions of the Forest (Conservation) Act, 1980, and also stating that inasmuch as the mining area was situated within a reserved forest area, and further, inasmuch as the prior approval of the Central Government had not been obtained for inclusion of felspar and quartz in the mining lease as required by the Act, the lessee could not be permitted to win the said new minerals notwithstanding the execution of the supplemental lease deed. Aggrieved by the said letter, the respondent filed a writ petition in the High Court, which was allowed, while making it clear that if for winning felspar and quartz the lessee was required to break up or clear any forest land other than the area required for mining to win mica, he could not do so without obtaining the previous approval of the Central Government under the Act. Aggrieved by the judgment of the High Court, the State of Bihar approached the Supreme Court, The only question which the Supreme Court considered was "whether the mining operations which are being carried on in the 5 acres of land for the purpose of winning felspar and quartz are illegal by reason of the absence of the previous approval of the Central Government granted under the Act". After examining the object underlying the Act and the language of Section 2, in particular clause (ii) therein, read with the Explanation, the Court observed (at p. 816 of AIR) :

"Reading them together, these two parts of the Section mean that after the commencement of the Act no fresh breaking up of the forest land or no fresh clearing of the forest on any such land can be permitted by any State Government or any authority without the prior approval of the Central Government. But if such permission has been accorded before the coming into force of the Act and the forest land is broken up or cleared, then obviously the section cannot apply. In the instant case, it is not disputed that in an area of five acres out of eighty acres covered by the mining lease the forest land had been dug up and mining operations were being carried on even prior to the coming into force of the Act. If the State Government permits the lessee by the amendment of the lease deed to win and remove felspar and quartz also in addition to mica, it cannot be said that the State Government has violated Section 2 of the Act because thereby no permission for fresh breaking up of forest land is being given. The result of taking the contrary view will be that while the digging for purposes of winning mica can go on, the lessee would be deprived of collecting felspar or quartz which he may come across while he is carrying on mining operations for winning mica. That would lead to an unreasonable result which would not in any way subserve the object of the Act. We are, therefore, of the view that while before granting permission to start mining operations on a virgin area Section 2 of the Act has to be complied with, it is not necessary to seek the prior approval of the Central Government for purposes of carrying out mining operations in a forest area which is broken up or cleared before the commencement of the Act. The learned counsel for respondent No. 1 has also given an undertaking that respondent No. 1 would confine his mining operations only to the extent of five acres of land on which mining operations have already been carried out and will not fell or remove any standing trees thereon without the prior permission in writting from the Central Government. Taking into consideration all the relevant matters, we are of the view that respondent No. 1 is entitled to carry on mining operations in the said five acres of land for purposes of removing felspar and quartz subject to the above conditions.....".

The observations aforesaid make it clear beyond any doubt that any fresh clearing of the forest cannot be permitted by the State Government, or any other authority, without the prior approval of the Central Government, What all the judgment says is that, since 5 acres of land was already broken up and cleared, and mining operations for winning mica were going thereon, no fresh permission of the Central Government is necessary for mining and winning felspar and quartz in the very same area, If the mining operations are to be carried on beyond those 5 acres and if any forest produce is to be cleared, then prior permission of the Central Government is necessary, before it is permitted by the State Government or any other authority. Indeed, the counsel for the lessee before the Supreme Court gave an undertaking that even for felling and removing the standing trees on the said 5 acres he would obtain the prior permission of the Central Government in writing; (see para 10). Counsel for the lessee before the Supreme Court further undertook that the lessee would not carry on any mining operations on any area other than the said 5 acres which had already been utilized for non-forest purposes even before the coming into force of the Forest (Conservation) Act, for the purpose of winning felspar or quartz; (see paragraph 7).

12. Mr. P. Ramachandra Reddy, learned counsel for the appellant, however, relied upon the following sentence occurring in paragraph 7:

"It has also to be mentioned here that before the High Court the learned Standing Counsel for the Central Government had stated that the Act had no application to leases granted prior to the coming into force of the Act and that there is no repudiation of that stand before us by the Central Government. .....".

In our opinion, the said sentence cannot, and should not, be read in isolation, but in its proper context. The said sentence occurs after referring to the undertaking given by the counsel for the lessee that the lessee would confine his mining operations only to the 5 acres, and is followed by the sentence wherein the only question arising for consideration in the said appeal was posed, viz., whether the mining operations being carried on in the said 5 acres for winning felspar and quartz are illegal by reason of the absence of the previous approval of the Central Government under the Forest (Conservation) Act. We are, therefore, of the opinion that the said sentence cannot be read as saying that the grant of a mining lease is tantamount to grant of permission to break up or clear the forest land. What is material for the purpose of the Act is not the date on which the lease is granted, but the date on which the State Government or other authority permits the breaking up, or clearing of the forest land, or any portion thereof.