Research › Browse › Judgment

Karnataka High Court · body

1997 DIGILAW 160 (KAR)

GANABA KASHINATH GAONKAR v. CHIEF SECRETARY, STATE OF KARNATAKA

1997-03-04

G.C.BHARUKA

body1997
G. C. BHARUKA, J. ( 1 ) THIS Writ Petition is directed against the order dated 5. 12. 1995 passed by the State government in exercise of its purported powers under Section 56 (1) of the Karnataka Minor minerals Concession Rules, 1994 (in short 'the Rules') and the notification of the even date issued under Rule 4 of the said Rules. The said order and the notification has been filed as annexure 'a' to the Writ Petition. By the impugned order the State Government has sought to relax the terms and conditions of quarrying lease specified in Sub-rule (2) of Rule 8 permitting grant of quarrying lease in respect of non-specified minor minerals, namely, sand, laterite and solly stones, from the forest areas for the purposes of construction of residential buildings and other developmental works. By the impugned notification the State Government has empowered the respective Deputy Conservators of Forest, to grant such quarrying licences in the areas falling within their jurisdictions. ( 2 ) THE petitioners herein have filed the present Writ Petition as a public interest litigation, with a complaint that the respondents under the garb of the said order and the notification are indiscriminately granting quarrying licences in forest areas in flagrant violation of the mandatory provisions contained in Section 2 of the Forest (Conservation) Act, 1980 (in short the Central act' ). This section reads as under " section 2 -- RESTRICTION ON THE DESERVATION OF FOREST 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 purposes. 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 reafforestation. 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 reafforestation. (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 treses which have grown naturally in that land or portion, for the purpose of using it for reafforestation; (v) for Explanation, the following Explanation shall be substituted, namely: explanation - For the purpose of this section 'non-forest purpose' means the breaking up or clearing of any forest land or portion thereof for (a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural 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 forest and wild life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, water holes, trench marks, boundary marks, pipelines or other like purposes. " ( 3 ) THE respondents in their statement of objections have clearly admitted that no quarrying lease can be granted pursuant to the impugned order and notification except by obtaining prior approval of the Central Government as envisaged under Section 2 of the Central Act. Therefore, there is no lis between the parties with regard to the only legal issue raised in the present proceedings. ( 4 ) RECENTLY, even the Supreme Court in its order dated 12th of December 1996 passed in T. N. GODAVARMAN THIRUMUKPAD v. UNION OF INDIA AND ORS W. P. (Civil) No. 202 of 1995 dated 12. 12. 1996. , has once again clarified the legal aspect touching upon the understanding and applicability of Section 2 of the Central Act. It has been held by their lordships that "it has emerged at the hearing, that there is a misconception in certain quarters about the true scope of the Forest Conservation Act, 1980 (for short the 'act') and the 'meaning of the word "forest" used therein. It has been held by their lordships that "it has emerged at the hearing, that there is a misconception in certain quarters about the true scope of the Forest Conservation Act, 1980 (for short the 'act') and the 'meaning of the word "forest" used therein. There is also a resulting misconception about the need of prior approval of the Central Government, as required by Section 2 of the Act, in respect of certain activities in the forest area which are more often of a commercial nature. It is necessary to clarify that position. 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 matter connected therewith, must apply to all forest 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 forest, 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 AND ORS v. STATE OF GUJARAT AND ORS. 1987 (1) SCC 213 . RURAL LITIGATION AND entitlement KENDRA v. STATE OF UP (1989 SUPPL. (1) SCC 504 ). AND recently in the order dated 29th November 1996 in W. P. (C) No. 749/95 (SUPREME COURT monitoring COMMITTEE v. MUSSORIA DEHRADUN DEVELOPMENT AUTHORITY and ORS.) The earlier decision of this Court in STATE OF BIHAR v. BANSHIRAM MODI and ORS. AIR1985 SC 814 , 1985 (1 )SCALE1201 , (1985 )3 scc643 , [1985 ]supp1 SCR345 , 1985 (17 )UJ928 (SC ) has, therefore, to be understood in the light of these subsequent decisions. AIR1985 SC 814 , 1985 (1 )SCALE1201 , (1985 )3 scc643 , [1985 ]supp1 SCR345 , 1985 (17 )UJ928 (SC ) 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 measure without any further delay. We further direct as under: i GENERAL: in view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the central Government is required for any non-forest activity within the area of any "forest". In accordance with Section 2 of the Act all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or ply-wood mills, and mining of any mineral are non-forest purposes and are therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State government must promptly ensure total cessation of all such activities forthwith. " ( 5 ) KEEPING in view the law as noticed above, it is clarified that no Deputy Conservator of Forest or for that sake any authority appointed under the Rules will be competent to grant any quarrying licence, pursuant to the impugned order and notification (Annexure 'a') in any Forest area, except under and in accordance with the prior approval granted by the Central Government in terms of Section 2 of the Central Act. It is further declared that any quarrying licence already granted without compliance with the said statutory requirement will be deemed to be void and inoperative and the respondents have to ensure that no mining operations are carried on in the forest area pursuant to such void quarrying licences. ( 6 ) THE Writ Petition is accordingly allowed in terms indicated above. No costs.