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PETITIONER: M/S HYDERABAD ABRASIVES & MINERALS (P) LTD.REPRESENTED BY SH

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT:       11/07/1997

BENCH: G. B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      Leave granted.      This appeal  by special  leave is  directed against the judgment of the Andhra Pradesh High Court dated 27.8.1993 in writ petition  No.3734 of  1993. The  present appellant  was respondent No.6  before the  High Court.  SAKTI, a voluntary social organisation  for the  upliftment of  tribals in east Godavari District  find the  writ  petition  in  the  Andhra Pradesh  High   Court  praying   therein  that   the  mining activities which  are carried  on by the respondents 6 to 10 in the  said writ  petition should be immediately stopped as the  grant   of  mining   leases  in   their  favour  is  in contravention of  Section 3  of the Andhra Pradesh Scheduled Areas Land,  Transfer Regulation, 1959 (hereinafter referred to as  the ‘Regulation’)  as well as section 2 of the Forest (Conservation) Act,  1980 (hereinafter  referred to  as  the ’Conservation Act’).  It was  averred in  the writ  petition that the  villages where  the mining  activities  are  being carried on  were notified as protected forests under Section 24 of  the Andhra  Pradesh Forest Act, 1967 with effect from 8.9.1975  and   within  the  said  forest  area  it  is  not permissible to  continue any  mining activity in view of the provisions of  the conservation  Act which prohibits user of forest land for non-forest purpose.      Respondents 1  to 4 before the High Court, who were the public officers  of the  State Government supported the case of the petitioner and took the stand that a joint inspection report had  been conducted  after surveying  the  area  over which the  mining activities  are being  carried   on by the respondents 6  to 10 and the said report reveals that mining leases have granted over the forest area which is prohibited under the  conservation Act  without prior  approval of  the Central Government.      Respondent No.6  the present  appellant took  the stand that the lease having been granted much prior to the area in question was  included as  a protected  forest, the  embargo contained in the provisions of the Conservation Act will not apply and  in this  connection reliance  was placed  on  the decision of  this Court  in the  case of  STATE OF BIHAR Vs.

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BANSHI RAM,  (199) 3  SCC 643.  It was  also contended  that Section 3 of the regulation has no application to a transfer by the Government in respect of its land in favour of a non- tribal and  the word  ‘person’ in  Section  3  of  the  said regulation will  not  include  the  Government.  It  is  not necessary for us to examine the stand taken by other private respondents, namely respondents 7 to 10.      The High  Court by  the impugned  judgment came  to the conclusion that  the transfer  of any land in scheduled area to a  non-tribal is  void under Section 3 of the Regulation, and therefore, the lease in favour of respondent no 6 within the scheduled  area is  void. The  High Court  came  to  the conclusion that  the word  ‘person’  in  section  3  of  the Regulation includes  the Government,  and therefore,  leases granted by  the State Government in scheduled area to a non- tribal is  void .  On the  question of  applicability of the conservation  Act  the  high  Court  also  relied  upon  the decision of  this court in the Banshi Ram’s case (supra) and came to  the conclusion  that for grant of mining lease in a protected forest  area  for  non-tribal  purpose  the  prior approval of  the Central  Government is  mandatory and since the Government  did not  obtain the  approval of the Central Government, leases  are in contravention of section 2 of the Forest  Conservation   act,  1980.   Having  considered  the judgment of  this Court  in AMBIKA QUARRY WORKS Vs. STATE OF GUJARAT (1987)  1 SCC  213 and  taking into account the fact that respondent  no. 6  had completed  the mining  operation over 42  acres the  High Court permitted the said respondent no. 6  to remove the dug up mineral in the presence of joint Collector of  the District,  Assistant Director of Mines and Geology  and  the  District  of  Surveyor  of  the  Forests. Respondent No.6,  the present  appellant was prohibited from mining operation  in the  area with the aforesaid conclusion and thus the appeal by special leave.      Learned counsel for the appellant argued with vehemence that the conclusion of the High Court that the word ’Person" in Regulation  3 (1)  (a) includes  the State Government and the transfer of any land within the scheduled area in favour of a  non-tribal is null and void is wholly erroneous as the embargo in  question is applicable in respect of transfer of land belonging  to the scheduled Castes and scheduled Tribes and not  to land  belonging to  the  State  Government.  The learned  counsel   also  urged  that  the  restrictions  and prohibitions  in   the  Conservation   Act  will   have   no application to  an existing lease and the lease in favour of the appellant  having been  granted much prior to the coming into force of the Conservation Act, the High Court committed error in  holding that  the leases  are in  violation of the Conservation Act.  Both these questions have been considered in detail  by us in Civil Appeal Nos. arising out of S.L.P @ Nos.17080-81 of  1995 and  for the reasons given therein and in view of the conclusions in the said appeals to the effect that the word ‘person’ used in Section 3(1)(a) of regulation does not  include the  State Government,  and therefore, the prohibitions contained in the said Regulation with regard to transfer of land in favour of a non-tribal will not apply to the transfer  of land made by the Government for the purpose of mining  lease, the  conclusion of  the High Court on this score  is   erroneous.  But   so  far  as  the  question  of applicability of  the conservation Act is concerned, in view of our  conclusion on  the  said  question  in  the  appeals arising out  of SLPs  referred to earlier (Samatha Vs. State of A.P.  & Ors.) the conclusion of the Court in the impugned judgment has  to be sustained. In view of the inquiry report and the  stand taken  by the  state Officials  the land over

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which  the  appellant  was  permitted  to  carry  on  mining activities is  a forest  land and  before grant  of lease in favour  of   the  appellant   no  approval  of  the  Central Government  has  been  taken.  It  is  no  doubt  true  that Conservation Act  came into  force much later than the grant of mining  lease in  favour of the appellant, but in view of the  general   directions  issued  by  this  court  in  T.N. GODAVARMAN THIRUMULKPAD  Vs. UNION  OF INDIA  & ORS. in Writ Petition No. 202 of 1995, the mining activities being a user of the  forest land for non-forest purpose has to be stopped and in case it is intended to continue the mining activities the same  can be done only after referring the matter to the appropriate authority  of the Central Government and getting the permission  of the  same. In this View of the matter the conclusion of the high Court in the impugned judgment so far as  violation   of  conservation   Act   is   concerned   is unexceptionable,  and  therefore,  the  said  conclusion  is upheld. Necessarily, therefore, the ultimate direction given by  the   High  Court   remains  unaffected  notwithstanding conclusion of  the High  Court on  the first  question  with regard  to  the  applicability  of  the  provisions  of  the regulation having  been reversed  by us.  In the premises as aforesaid this  appeal is dismissed but in the circumstances there will be no order as to costs.