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2003 DIGILAW 652 (ORI)

Suresh Chandra Padhee v. State of Orissa

2003-11-10

A.S.NAIDU

body2003
JUDGMENT A. S. NAIDU, J. — The petitioner seeks to challenge the order dated 9.7.2002 (Annexure-11) and the order dated 22.7.2002 (Annexure-12) passed by the Divisional Forest Officer, Keonjhar directing the petitioner not to operate the mining lease until receipt of further clarification from the Government. 2. Bereft of unnecessary details, the short facts neces¬sary for effectual adjudication of the present writ petition are that a Mining Lease was executed in favour of the petitioner in respect of the Mine situated in Bholabeda under Barbil Tahasil in the district of Keonjhar for a period of 20 years by a lease deed executed on 5.7.1972. After expiry of the term of the said lease on 4.7.1992, the same was again extended for another period of 10 years by a second registered lease dated 7.1.1997 with a stipula¬tion that it would come to effect retrospectively from 5.7.1992. One year before expiry of the term of the second lease, an appli¬cation for renewal of the lease accompanying necessary documents and land particulars was submitted by the petitioner before the concerned authority i.e. the Collector, Keonjhar on 3.7.2001. Though the same was duly received and acknowledged, no action has been taken till date. According to the learned counsel for the petitioner, in consonance with Rule-24A(6) of the Mineral Con¬cession Rules, 1960, the petitioner has a right to carry out the mining operation. 3. For the sake of brevity, Rule-24A(6) is quoted hereinbelow : “If an application for renewal of a mining lease made within the time referred to in Sub-rule (1) is not disposed of by the State Government before the date of expiry of the lease, the period of that lease shall be deemed to have been extended by a further period till the State Government passes order thereon.” In course of hearing of the writ petition, Mr. Mohanty, learned Addl.Government Advocate did not dispute the aforesaid legal position. The only contention raised by Mr. Mohanty is that after promulgation of the Forest (Conservation) Act, 1980, no mining operation can be carried on in forest area. According to him, the area which was leased out to the petitioner is surround¬ed by forest and as such, without obtaining prior permission of the Central Government, no mining operation can be permitted and that is why, orders Annexure-11 and Annexure-12 were issued. 4. According to him, the area which was leased out to the petitioner is surround¬ed by forest and as such, without obtaining prior permission of the Central Government, no mining operation can be permitted and that is why, orders Annexure-11 and Annexure-12 were issued. 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 there¬with, as has been held by the Supreme Court in the case of T.N. Godavarman Thirumulkpad Vrs. Union of India and Others, AIR 1997 SC 1228 , must apply to all forests irrespective of the nature of ownership or classification thereof. The word ‘forest’ covers all statutorily recognised forests, whether it is designated re¬served, protected or otherwise for the purpose of Section 2(i) of the Forest (Conservation) Act. 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 with in the area of any forest. In consonance with Section 2 of the Act, all activities within any forest in any State throughout the country, without prior approval of the Central Government, must cease forthwith.This being the mandate of the Supreme Court, we find absolutely no justification in interfering with the two orders (Annexures-11 and 12) issued by the authorities. 5. But then, Mr. Mohanty, learned Senior Advocate submits that as has been held by the Supreme Court, no mining operation can be carried on in the forest land. The said restriction will not apply to the ‘Broken up’ area, where operation continued prior to imposition of the restriction. In other words, Mr. Mohanty submitted that restrictions are only limited to the ‘Vi¬rgin forest’ areas and not to the areas where Mining activities are continuing since prior to promulgation of the Forest (Conser¬vation) Act, 1980. In support of such contention, Mr. Mohanty relied upon a decision of the Supreme Court in the case of State of Bihar Vrs. Banshi Ram Modi and Others, AIR 1985 SC 814 . In the said decision, it has been held that the forest area which has been cleared by way of carrying out mining operation prior to the coming into force of the Forest (Conservation) Act, 1980 shall not be considered as forest. Banshi Ram Modi and Others, AIR 1985 SC 814 . In the said decision, it has been held that the forest area which has been cleared by way of carrying out mining operation prior to the coming into force of the Forest (Conservation) Act, 1980 shall not be considered as forest. The Supreme Court held as follows: “Where a mining lease was granted for winning a certain mineral prior to the coming into force of the Act, and the lessee had applied to the State Government after the coming into force of the Act for permission to win and carry any new mineral from any part of a forest area which was already utilized for non-forest purposes by carrying out mining operations before the coming into force of the Act, the prior approval of the Central Government under Section 2 for the purpose of granting such permission not necessary. Before granting permission to start mining operations on a virgin area, S.2 of the Act has to be complied with, it is not necessary to seek the prior approval of the Central Govern¬ment for purposes of carrying out mining operations in a forest area which is broken up or cleared before the commencement of the Act.” 6. Mr. Mohanty, drew our attention to the counter affida¬vit filed by the State Government and submitted that according to the opp.parties about 44.227 Hct. out of the area leased out in favour of the petitioner constitute the broken area and particu¬lars of such area have been more clearly stipulated in Annexure-C/1 to the counter filed on behalf of opp.parties 1 to 4. 7. After hearing learned counsel for the parties, in the touchstone of the ratio decided by the Supreme Court in the cases referred to above we have no hesitation to hold that the peti¬tioner shall not be entitled to continue mining operation in the lease area over which no operation had carried on prior to prom¬ulgation of the Forest (Conservation) Act, 1980 i.e. virgin forest. However, the petitioner shall confine his mining opera¬tion to the mining area which was broken up prior to 25.10.1980 when the Forest (Conservation) Act came into force. In view of the aforesaid conclusion arrived at by us, we hold that the re¬strictions imposed by the orders issued under Annexures-11 and 12 shall be confined to only the virgin forest where mining opera¬tion has not commenced. 8. In view of the aforesaid conclusion arrived at by us, we hold that the re¬strictions imposed by the orders issued under Annexures-11 and 12 shall be confined to only the virgin forest where mining opera¬tion has not commenced. 8. With our aforesaid observations, we dispose of the writ petition. SUJIT BARMAN ROY, CJ. I agree. Petition disposed of.