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Kerala High Court · body

2009 DIGILAW 180 (KER)

Joseph Kurian v. Union of India

2009-02-20

K.SURENDRA MOHAN

body2009
Judgment: Substantial questions of grave import concerning protection of forests, arise for determination in the above writ petition. The petitioner has approached this Court seeking the issue of a Writ of Certiorari, quashing Ext.P6 proceedings of the fifth respondent and Ext.P7 letter of the third respondent, as violative of the provisions of the Forest (Conservation) Act, 1980, hereinafter referred to as the ‘Act’. As per the impugned proceedings, the petitioner has been declined permission to irrigate his plantation by taking water from the Periyar river through the Reserve Forest Land. 2. According to the petitioner, he along with his brothers are the owners of 70 acres of land comprised in Survey Nos.426/1-2, 407/1, 407/2, 429 and 430 (re-survey Nos:104/4, 103/3, 114/7, 97/4, 97/7, 112/8 and block No:23) of Malayattoor Village. The property lies along the northern side of Periyar river and is separated by a strip of forest land of about 150 mtrs width (Arattukadavu tea plantation reserve). For the purpose of irrigating the said property the petitioner was taking water from the river through the forest land. As per Ext.P1 agreement dated 9.7.1954 entered into between the petitioner and the then Government of Travancore-Cochin, the petitioner was permitted to take water through the forest land by cutting channels through the forest. The agreement was subsequently renewed by Ext.P2 up to the year 1999. According to the petitioner, he has put up a pump house, has cut water channels through the Reserve Forest and has been taking water to his property for irrigation purposes, ever since. A rough sketch Ext.P3 produced by the petitioner shows the location of the property for irrigation purposes, ever since. A rough sketch Ext.P3 produced by the petitioner shows the location of the property, the pump house and the channels. 3. On 10.7.1998 the petitioner approached the fourth respondent, the Principal Chief Conservator of Forests, for a further extension of the lease, since the lease was to expire on 33.1999. The petitioner was informed that further extension of the lease could be given only with the prior permission of the third respondent, the Deputy Conservator of Forests, Ministry of Environment and Forests, Government of India and, therefore, he waited. The petitioner was informed that further extension of the lease could be given only with the prior permission of the third respondent, the Deputy Conservator of Forests, Ministry of Environment and Forests, Government of India and, therefore, he waited. Subsequently, the petitioner received Ext.P6 communication dated 6.2.2003 directing him to make alternative arrangements for the irrigation of his land and to surrender vacant possession of the land in his possession to the forest department before 28.2.2003. Ext.P6 was issued in view of the proceedings of the third respondent dated 30.12.2002 refusing to give permission for extension of the lease, that was sought for by the petitioner. The said proceedings, addressed to the Principal Secretary, Government of Kerala, Forests and Wild Life Department, is Ext.P7. Ext.P7 contains a further direction not to forward proposals catering to the individuals’ interests for approval under Section 2 of the Act in future. The petitioner filed the above writ petition challenging Exts.P6 and P7 contending that they were violative of the provisions of the Act. The complete ban of even forwarding of proposals for consideration under Section 2 of the Act is attacked as absolutely uncalled for. 4. During the pendency of the Original Petition the petitioner died and his legal representatives have been brought on record as additional petitioners 2 to 6. However, for the sake of convenience reference is made herein only to the original petitioner who was on the party array, at the time of filing of the Original Petition. 5. The Original Petition is contested by the respondents. Separate counter affidavits have been filed on behalf of respondents 1 to 3 and the 5th respondent justifying the impugned proceedings. According to the respondents, as per Ext.P1 agreement the petitioner was permitted to construct a pump house and to cut two channels inside the Reserve Forest for the irrigation of his property. As per condition No.5 of the said agreement it is made clear that the permission does, not confer any right on the petitioner in respect of the forest land. As per condition No.5 of the said agreement it is made clear that the permission does, not confer any right on the petitioner in respect of the forest land. As per Section 2(iii) of the Act, no State Government or other authority is permitted except with the prior approval of the Central Government to pass any order directing that any forest land or portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government. Accordingly the proposal of the petitioner was placed before the Central Government but, permission was not granted by the Central Government. It is contended on behalf of respondents 1 to 3 that the proposal forwarded by the State Government for diversion of forest land for non-forestry purpose in favour of the petitioner was thoroughly scrutinized by the Ministry of Environment and Forests. According to the counter affidavit, after considering all the relevant facts, the Ministry came to the conclusion that utilization of forest land by the petitioner from 35.1989 onwards is without any legal sanction. According to them, the utilization of the forest land upto 1989 itself was illegal and violative of the provisions of the Act. Therefore, they sought for dismissal of the Original Petition. 6. I have heard the counsel for the petitioner Mr. M.S. Unnikrishnan and the Govt. Pleader appearing on behalf of the respondents. 7. It is to be noted at the very outset that the petitioner has no right to get any portion of the Reserve Forest Land either by way of a fresh lease or by way of renewal of the earlier lease. It is trite that, in the absence of any right that enjoys the protection of law, the petitioner cannot invoke the jurisdiction of this Court under Art.226 of the Constitution. 8. Further, the issue in the present case is essentially contractual in nature. It is a settled proposition of law that the jurisdiction of this Court under Art.226 of the Constitution is not available to settle contractual disputes. 9. Apart from the above, the lease agreements Exts.P1 and P2 show that they were granted for a specific purpose, on the express condition that the petitioner shall not raise any claim of easement in respect of the forest land. 9. Apart from the above, the lease agreements Exts.P1 and P2 show that they were granted for a specific purpose, on the express condition that the petitioner shall not raise any claim of easement in respect of the forest land. The condition was accepted by the petitioner and he was utilizing the land subject to the said condition, which is contained in clause 5 of Ext.P1. It is further stipulated in clause 11 of Ext.P2 as follows: “The Government shall have the full control over the land on which the pump house is created and through which the channel is opened and the lessee shall surrender the area covered by the pump house and channel is and when required by the Government without claiming any compensation, after dissantling the structures, is any at his own cost and risk. The right will be terminated is so required by the Department and the lessee can not claim any compensation for the same.” Therefore, the petitioner has also agreed to surrender the land covered by the pump house and channel as and when demanded by the Government without claiming any compensation. In view of the above clause in the agreement, the petitioner cannot claim any right in respect of the land covered by the agreement. Nor can he claim any right to get the lease renewed. 10. After the coming into force of the Forest (Conservation) Act, 1980, renewal of the lease Ext.P2 could be granted by the State Government only with the prior approval of the Central Government. It is in the above circumstances that the proposal for renewal of lease was forwarded to the Central Government. It has been stated in Ext.P7 that “after careful consideration of the proposal of the State Government, I am directed to convey Central Government’s inability to approve the proposal in the interest of Conservation of Forests”. Therefore the proposal for renewal of lease submitted by the petitioner has been rejected after careful consideration, on the ground of conservation of forests. No material has been produced by the petitioner to show that the decision of the Central Government was motivated by any extraneous consideration or interest. Therefore, it cannot be said that Ext.P7 has been issued without considering the proposal of the petitioner or without application in mind. 11. No material has been produced by the petitioner to show that the decision of the Central Government was motivated by any extraneous consideration or interest. Therefore, it cannot be said that Ext.P7 has been issued without considering the proposal of the petitioner or without application in mind. 11. Further, as noticed above the petitioner does not have a right to get the lease renewed in his favour since it is an admitted fact that the land is forest land covered by the Act. The counsel for the petitioner has placed reliance on the decision reported in State of Kerala v. Moosa Haji (1984 KLT 494 (F.B.). According to the counsel it has been laid down in paragraph 22 of the said decision that even as regards deforestation, there is no prohibition in the Central Act. All that it says is that, before passing an order permitting use of forest land for non-forest purposes, the State Government should get the prior approval of the Centre. The Central Act is thus not designed to ban all deforestation, but only to permit it in an orderly manner, with such controls as the Central Government may seek to enforce. The decision relied on by the counsel for the petitioner does not place any fetters on the power of the Central Government to grant or refuse permission to carry on any activity with respect to forest land. In this case also what has been done by the Central Government is only to refuse permission, for valid reasons, remaining well within the ambit of the power conferred on it by the Act. Counsel for the petitioner further submitted that the proceedings, Ext.P7 have gone to the extent of banning even consideration of future proposals for utilization of forest land by private individuals. The same is contended to be absolutely without authority. For the said reason it is contended that the order requires to be set aside and a direction to consider Ext.P8 representation should be issued by this Court. 12. I do not think that the said statement in Ext.P7 affects the rights of the petitioner in any way. The said statement has been made after considering and rejecting the proposal for renewal forwarded by the State Government with respect to the petitioner’s agreement. The proceedings show that there has been application of mind. 12. I do not think that the said statement in Ext.P7 affects the rights of the petitioner in any way. The said statement has been made after considering and rejecting the proposal for renewal forwarded by the State Government with respect to the petitioner’s agreement. The proceedings show that there has been application of mind. It is further contended that respondent No.4 has issued Ext.P7 on the mistaken impression that the proposal of the petitioner was to erect a pump house and to construct irrigation channels through forest land whereas, the pump house and channels have been in existence in the forest land from the date of Ext.P1 onwards. The above contention is raised relying on the subject portion of Ext.P7. Since the request of the petitioner has been considered property in the body of Ext.P7, the said error in the description of the subject in Ext.P7 does not affect the validity of the said proceedings. As already noticed, Ext.P7 mentions in its body that the proposal of the petitioner has been considered in detail and there is no material or evidence available, to discredit the said statement. 13. Conservation and preservation of the environment has long ceased to be the luxury of the developed nations and has become an imperative obligation of all, for preserving the humanity. The planet earth is in peril and the environmental depredation can be reversed only by positive efforts, concerted action and carefully planned initiatives implemented with determination. It is a realization of this grave situation that has led to the enactment of the Forest (Conservation) Act, 1980. The legislature has in its wisdom decided that conservation was too important a matter to be left to the localized decision making of the respective states and has entrusted the Central Government with the said duty. The duty has to be approached in the National and Global perspective. Section 2 of the Act confers over-riding powers on the Central Government in supersession of all other enactments, to implement the policy of conservation of forests. Forests constitute the invaluable wealth not only of our Nation but the entire humanity, which are to be preserved not only for the present generation but also for the future generations and for posterity. For realizing the above objective it is open to the Central Government to even ban all activities of private persons inside the forests. Forests constitute the invaluable wealth not only of our Nation but the entire humanity, which are to be preserved not only for the present generation but also for the future generations and for posterity. For realizing the above objective it is open to the Central Government to even ban all activities of private persons inside the forests. Therefore, the prohibition contained in Ext.P7 is well within the powers of the Central Government under the Act. 14. The learned Govt. Pleader relied on the decision of the Supreme Court in Ambica Quarry Works v. State of Gujarat and Others (AIR 1987 SC 1073) and submitted that the Government had the power to grant or refuse the renewal of a lease under the Act. In the said case, the State Government rejected an application for renewal of a mining lease and the rejection was sustained on the ground that the same was in conformity with the purpose of the Forest (Conservation) Act, 1980. The above decision applies on all fours to the present case also. 15. The counsel for the petitioner submitted that by virtue of the order of stay granted by this Court he had been using the water from the river Periyar for his irrigation purposes during the pendency of this Original Petition. He therefore prays for some time to make alternative arrangements. The Govt. Pleader has no objection in a reasonable time being granted. In the above circumstances considering his long occupation, time is granted to the petitioner till June 2009 to make alternative arrangements for irrigating his land. 16. As already noticed, the petitioner has not been able to show that Exts.P6 and P7 suffer from any infirmity or that the said proceedings are ultravires the powers of the Central Government under the Act. In view of the above the writ petition fails and is dismissed with the above directions. No costs.