Uttar Pradesh Gandhi Ismarak Nidhi, Vyavasthapak v. State of U. P
1987-10-26
K.C.AGRAWAL, M.P.SINGH
body1987
DigiLaw.ai
JUDGMENT K.C. Agrawal, J. - This petition under Article 226 of the Constitution has been filed by Uttar Pradesh Gandhi Ismarak Nidhi, Mirzapur for Mandamus directing the Collector Mirzapur to grant the mining lease for lime stone under the U.P. Minor Mineral '(Concession) Rules, 1963. The petitioner also has claimed a Mandamus directing the respondents not to interfere in its peace Possession over the plots, the details of which have been given in paragraph 1 of the writ petition. 2. Mirzapur Stone Mohal Act, 1886 (U.P. Act No. V of 1886) was applied to the District of Mirzapur in the North-Western Province (now known as Uttar Pradesh). The Rules were framed under this Act making an elaborate provision for grant of licence to work stone quarries and other connected matters in the district of Mirzapur. The licences used to he granted and renewed in the beginning of each year by the persons desirous of obtaining the same. 3. Subsequently, U.P. Minor Mineral,(Concession) Rules, 1963 were enforced in the district of Mirzapur with effect from 26th April, 1979. The provisions of this Rules were much more than the Rules framed under the Mirzapur Stone Mohal Act. 4. The U.P. Minor Mineral (Concession) Rules, 1963 had been framed under Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957. These rules were applied to-the whole of the Uttar Pradesh with effect from August 26, 1963 excluding the district of Mirzapur. The stone quarrying of this district continued to he governed by the Mirzapur Stone Mohal Act, 1886 and the Rules framed thereunder. Then on 26th April, 1979, the State Government issued a notification applying the U.P. Minor Mineral (Concession) Rules to the district of Mirzapur also. Rule 3(1) of these Rules provided that no person could take any mining operation in any area within the State of any minor mineral except and in accordance with the terms and conditions of a mining lease or a mining permit granted under this Act. 5. As a result of the U.P. Minor Mineral (Concession) Rules, the Stone Mohal Act, 1886 became obsolete (See Laxman Prasad v. State, 1984 All LI 367). This decision of the High Court was affirmed by the Supreme Court in an appeal preferred in Civil Misc. Writ No. 9701 of 1980.
5. As a result of the U.P. Minor Mineral (Concession) Rules, the Stone Mohal Act, 1886 became obsolete (See Laxman Prasad v. State, 1984 All LI 367). This decision of the High Court was affirmed by the Supreme Court in an appeal preferred in Civil Misc. Writ No. 9701 of 1980. The Supreme Court held : "We do not find any error in the judgment of the High Court by which it has been held that Mirzapur Stone Mohal Act, 1886 is no longer in force." 6. The petitioner and several others ,.preferred writ petition No. 12422 and others of 1986 in this Court for Mandamus directing the State Government to grant the licences/permits to them under the U.P. Minor Mineral (Concession) Rules 1963. The writ petition was disposed of on 9-1-1987 directing the respondents to give short term permits to the petitioner for a period that the applications made by them are not disposed of. While doing so, the Court was also called upon to consider the question of applicability of the Forest (Conservation) Act, 1980. The.Division Bench observed : "It has also been brought to our notice that .the provisions of Forest (Conservation) Act, 1980 may have some bearing upon the grant of leases/permit to the petitioners, while disposing of the applications of the petitioners, it goes without saying the authority concerned will (sic) the provisions of the said Act also in mind and dispose of the applications on merits and in accordance with law. If the authority decided to reject the application it should record reasons in support of its order. 6A. After the matter went back, the respondent refused to grant the mining lease on the ground that the area in question was covered by the Forest (Conservation) Act, 1980. Aggrieved, the petitioner has come to this Court. 7. The point that arises for consideration is whether Forest (Conservation) Act, 1980 (hereinafter referred to as 1980 Act') applies to the present case. 8. The argument of the petitioner was that the land in question had since not been declared under Section 20 of the Forest Act, the 1980 Act did not apply and, as such, no prior approval of the Central Government for grant of permit or lease was required.
8. The argument of the petitioner was that the land in question had since not been declared under Section 20 of the Forest Act, the 1980 Act did not apply and, as such, no prior approval of the Central Government for grant of permit or lease was required. Arguing that the Collector Mirzapur had committed an error in finding that 1980 Act applied, the learned counsel urged that for the application of the said Act it was incumbent that the Forest was a reserved forest and as it had not been notified under Section 20, the Collector acted in contravention of Section 2 of 1980 Act by finding that neither permit nor lease could be given to the petitioner in respect of the area which was in possession of the petitioner. For the purpose of appreciating the argument, reference to the object and reason of 1980 Act may be made. The objects and reasons given in the Bill were as under : "Deforestation causes ecological imbalance and leads to environmental deterioration. Deforestation had been taken place on a large scale in the country and it had caused widespread concern. 2. With a view to checking part 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 a' dereservation of reserved Forest and for use of forest land for non-forest purposes. The Ordinance also provided for the constitution of a advisory committee to advise the Central Government with regard to grant of such approval. 3. The Bill seeks to replace the aforesaid Ordinance to Gaz. of India, 2-12-1980 Pt. II- S. 2 Ext. p. 1183". 9. About the reference to object and purpose of a statute, the Supreme Court has said in Reserve Bank of India v. Peerless Company, AIR 1987 SC 1023 that : "That interpretation, is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word.
A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context". 10. If the objects are taken into account it would be found that the Parliament desired to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto. With that end in view, Section 2 imposes restriction on the de-reservation of forests or use of forest land for non-forest purpose. This section reads as under : "2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose - Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing (i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to he reserved, (ii) that any forest land or any portion thereof may he used for any non-forest purpose. Explanation - For the purposes of this section "non-forest purposes" means breaking up or clearing of any forest land or portion thereto for any purpose other than re-afforestation". 11. For the State, the argument was that it was not necessary for applying 1980 Act the land must have been declared-as a reserved forest under Section 20 of the Forest Act. Counsel urged that Section 2 applies to any forest land irrespective of the fact that it had been declared as reserved or not. 12. We are of opinion that the submission of the State is well founded. What did the legislature intend was that no forest land should be used for breaking up or clearing for any purpose other than reforestation. This controversy has been decided by us in another writ petition of which judgment is being delivered along with this one.
12. We are of opinion that the submission of the State is well founded. What did the legislature intend was that no forest land should be used for breaking up or clearing for any purpose other than reforestation. This controversy has been decided by us in another writ petition of which judgment is being delivered along with this one. We need not elucidate the said point further excepting pointing out that the 1980 Act could apply to any forest land. Its declaration as a reserved forest under Section 20 of the Forest Act is not necessary for the application of the same. 13. For the petitioner, the argument was made that in similar matters like the one involved in the present case, division benches have been directing to decide the applications for lease/permit irrespective of the provisions contained in the Forest (Conservation) Act. One of such orders is as follows : "For grant of permit to quarry stone and stone gritts etc. the petitioner had applied to the Collector, Mirzapur. It is claimed that although royalty etc. has been deposited, but no orders have been passed presumably because of the provisions of the Forest Conservation Act 1980. Having heard the learned counsel for the parties, we are of the opinion that the application filed by the petitioner should be disposed of expeditiously irrespective of the provisions contained in the Forest Conservation Act. The petition is disposed of accordingly". 14. True it is that not in the aforesaid case but also in the other writ petitions similar directions have been issued. We find that the observations made by this Court in writ petition No. 12422 of 1986, the direction was to the contrary. 15. However, whatever has been said by us above should not detain us in' observing that what is binding on a Court is the ratio of a decision. This Court while giving the direction that the applications for grant of permit would be disposed of irrespective of. the Forest (Conservation) Act, 1980 did not decide the controversy about applicability of 1980 Act to the land in question. The question of its applicability was not challenged. The Court assumed that the 1980 Act applied. No reason about the conclusion arrived at has been given. A decision is an authority for what it actually decides.
the Forest (Conservation) Act, 1980 did not decide the controversy about applicability of 1980 Act to the land in question. The question of its applicability was not challenged. The Court assumed that the 1980 Act applied. No reason about the conclusion arrived at has been given. A decision is an authority for what it actually decides. For that purpose, it is necessary to find the principle of law actually presented to a Court for consideration and its determination. If a point has been considered the decision would be a precedent and will have a binding nature. Inasmuch as what is binding is the ratio decidendi that is the ground of decision or the point in a case which determines the judgment. But where the Court does not decide any controversy and proceeds to conclude a case before it by assuming certain courses of law or interpretation of a statute, that would not be said to be a binding decision. 16. Counsel urged that right or wrong the decision given in cases relied upon by him, although were based on assumption, were binding on the State Government and as such, the State Government cannot wriggle out of the same by setting the excuse which has been narrated by us above. The submission ignores the difference between the res judicata and judicial precedence. There is an essential difference between the two. By virtue of the former, a final decision of a concrete issue between the parties, by any Court having jurisdiction to determine that issue is given and that may preclude either party from raising the same issue against the other party to the decision, whether before the .same Court, or before any Court exercising a higher or lower jurisdiction. The doctrine of judicial precedent, on the other hand, is not concerned with concrete issues as between the parties. Its effect is to declare the law, not the facts, and to declare it so as to be binding upon all persons, whether parties to the proceedings or not in all courts of inferior and in cases of same jurisdiction. The doctrine of precedent depends upon desirability and uniformity in the law. Since we are of the opinion that 1980 Act applies the petitioner is not entitled to any of the reliefs claimed. 17. The writ petition is dismissed r summarily.