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2007 DIGILAW 1287 (PAT)

Sri Kaushlendra Singh v. State Of Bihar

2007-08-06

NAVIN SINHA

body2007
Judgment 1. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel appearing on behalf of Department of Mines. 2. The petitioner is a lessee of private lands. He was granted mining rights on the same by the respondents. The lands were contiguous to forest lands. This necessitated a clarification from the Department of Forests, whether the lands fell within the forest requiring clearance under Section 2 of the Forest (Conservation) Act. The Department of Forest on 14.11.2000 reported that though the lands are recorded in the khatian as shrubs but presently on a part of the lands agricultural operations were being carried out and rest of the lands were barren. This was reconfirmed by the Forest Department in its communication dated 25.11.2000 that the lands on which mining was proposed was outside the boundary of the notified forest. 3. The submission on behalf of the petitioner is that thereafter he was granted a mining lease by the Department of Mines on 31.1.2001 for a period of 10 years. The petitioner has suddenly been served with a communication from the Department of Forest dated 14.6.2002 that the lands in question on which he was carrying out mining operation was recorded in the Government records as forest and shrubs and, therefore, it fell within the category of forest land and in the light of the order passed in Writ Petition No. 202 of 1995 the provisions of Forest (Conservation) Act were applicable on the subject lands and that no mining could be done on the lands without clearance under the Forest (Conservation) Act. He was therefore directed to suspend mining operations till clearance under the Forest Act be not obtained. This has been followed by the communication of the Department of Mines dated 24.2.2003 terminating his lease for the aforesaid reason. 4. The counter affidavit filed on behalf of Department of Forest in paragraph 4(c) states that the plot in question is outside the boundary of the protected forest. Paragraph 4(d) states that the lease granted to the petitioner is just outside the boundary of the Rajgir protected forest. Paragraph 4(h) states that the demarcation of the leased area was done and the pillar were fixed to avoid any confusion. Paragraph 4(d) states that the lease granted to the petitioner is just outside the boundary of the Rajgir protected forest. Paragraph 4(h) states that the demarcation of the leased area was done and the pillar were fixed to avoid any confusion. Sub-paragraph (O) states that the mining lease granted to the petitioner was just outside the boundary of the protected forest of Rajgir and the vegetation and the nature of the land within the Forest and leased area is alike. 5. On the contrary, Annexure-B to the counter affidavit of the Forest Department also appended as Annexure-2 to the writ application contains a report of the Forest Department itself, which has been noticed above, that the lands were partly being used for agricultural purpose and the rest was lying vacant. Quite obviously the statement made in the counter affidavit with regard to the present status of the lands is clearly contrary to what their own inspection report of the Department of Forest is. It is not in controversy that the lands were recorded as shrubs in the khatian prepared years ago. 6. Reliance was placed by the Respondents on the judgment of the Supreme Court in the case of T.N. Godavarman Thirumulkpad vs. Union of India & Ors., reported in (1997)2 S.C.C. 267 to submit that the word forest has been given a liberal interpretation by the Apex Court to mean and include not only the forest as in dictionary sense but also any area recorded as forest in the Government record irrespective of the ownership and that it must apply to all forest irrespective of the classification thereof. 7. In the present case, it is the stand of the Forest Department itself that whatever may have been the nature of the lands originally the same has undergone a change. The boundary of the forest has been demarcated. Pillars have been fixed. The lands which were sought to be classified as lands akin to a forest by reasons of existence of shrubs has changed its nature and no more survives in its original form. It now constitutes lands outside the forest area on which agricultural operations are being carried and there exist no shrubs. The latter finding is based on a report at Annexure-B itself that the land was "PARTI". 8. It now constitutes lands outside the forest area on which agricultural operations are being carried and there exist no shrubs. The latter finding is based on a report at Annexure-B itself that the land was "PARTI". 8. Based on the aforesaid discussions, this Court arrives at the conclusion that the impugned order at Annexure-9 issued by the Department of Forest dated 14.6.2002 in so far as it requires the petitioner to obtain clearance under the Forest (Conservation) Act is arbitrary. In view of the stand of the Respondents themselves, this Court is satisfied that the lands in question do not fall within the arena of the orders passed in the case of T.N. Godavarman Thirumulkpad vs. Union of India & Ors. (supra). The order, therefore, is bad in so far as it directs the present petitioner to stop his mining activities without clearance under the Forest (Conservation) Act. The order is, accordingly, set aside. In the result, the consequential order at Annexure-11 in so far as it purports to cancel the granting of lease of the petitioner for reasons of Annexure-9 is also set aside. 9. There is another aspect of the matter. The lands on which mining operations are being carried out are contiguous to the protected forest. The counter affidavit of the Forest Department alleges intrusion by the petitioner for mining into protected forest lands. The Forest (Conservation) Act prevents grants of lease for mining in the safety zone area of the protected forest. The Supreme Court in repeated orders passed in the case of T.N. Godavarman Thirumulkpad vs. Union of India & Ors. (supra) has emphasised that safety zone of the protected forest be demarcated and no mining be permitted in the same. The respondents before permitting any resumption of mining activities by the petitioner shall ensure demarcation of the safety zone and that no mining activity shall be permitted therein. 10. The writ application is allowed to the extent indicated.