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CASE NO.: Appeal (civil)  4678-4679 of 2000

PETITIONER: State of Kerala  & Ors.                                  

RESPONDENT: Sunil Kumar S. & Ors.                                    

DATE OF JUDGMENT: 24/04/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

Challenge in these appeals is to the legality of directions  given by a Division Bench of the Kerala High Court varying the  order passed by learned Single Judge in a writ petition filed  under Article 226 of the Constitution of India, 1950 (in short  the ’Constitution’).  According to learned counsel for the  appellants, though the direction appears to be innocuous it is  contrary to law.  Learned counsel for the respondents on the  other hand submitted that no positive direction has been given  and only the appellant-State has been directed to seek "prior  approval" from the Central Government in the matter of  accepting prayer of the respondents for grant of lease.

Factual background in a nutshell needs to be noted.

An extent of 486.63 acres of land was leased out to the  predecessor of respondent No.1.  It was found by the  functionaries of the State that while the lessee was in  possession of the land leased, he had encroached upon  adjacent portions of land and the extent of such encroachment  was 230.39 acres.  The Forest Department resumed an extent  of 142.39 acres of land during the year 1976.  The balance  encroached portion remained with the lessee encroacher.  Out  of the 142.39 acres of land resumed by the Forest  Department, an extent of 38.42 acres appears to have been  cultivated with cardamom by the encroacher.  The Lessee  moved the State Government praying that the encroached land  may be regularized and a lease may be granted to the lessee of  the encroached extent.  By order dated 16.10.1980 the State  Government decided to grant 108 acres of encroached land  continuing in the possession of the lessee  and 38.42 acres of  encroached planted area already resumed by the Forest  Department on a lease to the lessee.

The State Government, therefore, decided to regularize  the encroachment in respect of 146.42 acres of Reserved  Forest and further decided to grant a lease for 20 years in  respect of the said area to be regularized.

On 10.12.1980, one V.R. Thirumalai Swami Gawndar  predecessor of the respondent herein remitted Rs.6,56,582/-  at the sub treasury as penal interest for encroachment and  cutting of the trees upto 31.12.1978.

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On 27.12.1980 the Central Government introduced the  Forest Conservation Act, 1980 (in short the ’Act’) and it came  into force with effect from 25.10.1980.

On 14.08.1983, Shri V.R. Thirumalai Swami Gawndar  filed O.P. No. 6991/83 for a Writ of Mandamus directing the  State Government to implement G.O. No. 392/80 dated  16.10.1980.

On 08.12.1987, the Hon’ble High Court dismissed O.P.  No. 6991/83 with the following findings :

"In the instant case, with the materials now  available before me I am not in a position to  hold that the forest land involved in it had  already been broken up or cleared prior to the  coming into force of the Central Act 69 of  1980.  In the absence of such details, the only  course that is open to me is to direct the  respondents to examine the question as to  whether the forest land in dispute had already  been broken prior to 1980 or not.  If it had  been so broken, the provisions of Act 69 of  1980 will not have any application to the  instant case.  In such a situation, I do not find  any sustainable ground in not complying with  the directions contained in Ext. P1.  It was also  directed that the Government should comply  with GO(MS) No. 392/80/AD dated  16.10.1980 (Ext. P1 in that OP) in case the  forest land was found to have already been  broken up and cleared prior to the coming into  force of Act 69 of 1980."

On 08.10.1988, the Government issued letter dated  8.10.1988 to the respondent stating the condition regarding  the forest land having already been broken up and cleared  prior to the coming into force of the Act is not satisfied and  therefore, the Government are unable to comply with G.O.  dated 16.10.1980 and hence the request for execution of lease  was rejected.

On 20.10.1988, Sh. Thirumala Swami Gawndar filed O.P.  No. 8653/88 before the High Court with a prayer to quash the  aforesaid Government letter dated 8.10.1988 and to further  direct the Government to execute the lease deed in terms of  G.O. dated 16.10.1980.

On 13.09.1995, the present respondent claims to have  acquired the right from Sh. G.R.Thirumalai Swami Gawndar  who died on 25.12.1988.  On 13.09.1995 the Division Bench  of the High Court dismissed the Writ Petition O.P. No. 8653.

On 09.12.1996, the Special Leave Petition (Civil) No.  568/96 filed by the respondent against judgment in O.P. No.  8653/88 was dismissed by this Court.

On 12.03.1997 the Forest Department resumed  possession of the forest land in dispute after preparing  mahazar.

On 20.03.1997, O.P. No. 5523/97 was filed by the  respondent.

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By order dated 16.02.1998, O.P. No. 5523/97 was  dismissed by the High Court.  The respondent preferred writ  appeal No. 641/98 before the Division Bench of the High  Court.

The respondent thereafter filed O.P. No. 6376/2000 with  a prayer for directing the State Government to get the approval  of the Central Government under Section 2 of the Act for grant  of lease of the forest land measuring 146.42 acres of the  respondent.

The Division Bench by the impugned judgment in the  Writ Appeal and the O.P. directed the State Government to  seek the approval of the Central Government under Section 2  of the Act for lease of 146.42 acres of land within 2 months  from 21.3.2000.

The directions impugned in the present appeal reads as  follows :

"In the result, both the Writ Appeal and  the writ petition are disposed of accordingly.  Prayer (a) in O.P. 5523/97 and prayer (b) in  O.P. 6376/2000 are ordered as prayed for.   Since the prayer is made in the revised and  comprehensive rules and guidelines under the  Forest Conservation Act, 1980 for  regularization of Pre 1980 encroachment of  forest land, prayer (a) made in O.P. 5523/97  and prayer (b) in O.P.  6376/2000 are  grantable.  Accordingly, both the Writ Appeal  and Original Petition are disposed of.  No  costs.

Government of Kerala is directed to seek  the approval of the Central Government under  Section 2 of the Forest Conservation Act, 1980  for lease of 146.42 acres of land within two  months from today."

As noted above, learned counsel for the appellant-State  and its functionaries submitted that there is a statutory  restriction on deforestation of forests or use of forest land for  non forest use in terms of Section 2 of the Act, which reads as  follows :-

"Restriction on the de-reservation of forests 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 \026

(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; (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 organization not owned,  managed or controlled by Government;

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(iv)    that any forest land or any portion thereof may  be cleared of tress which have grown naturally  in that land or portion, for the purpose of  using it for re-forestation.

In the instant case, the State Government does not want to  lease any part of the forest land.  Therefore, the question of  seeking prior approval of the Central Government does not  arise.  The High Court proceeded on the basis as if prior  approval has to be taken from the Central Government even  when the State Government does not want to lease the land in  question.  There is no vested right on the applicant to seek  approval.  Though learned counsel for the respondent did not  dispute the position that there was no vested right in such  matter,  according to her, in view of the peculiar position and  the fact that the applicant had deposited more than Rupees  six lakhs as penalty in respect of encroached land an equitable  approach is imperative.  It is pointed out that there was no  direction to the Central Government to accord approval.  It is,  therefore, submitted that if the State Government seeks  approval it is open to the Central Government to deny the  request for approval.  On a mere technical ground the State  Government should not take the stand that in such matters  approval is not necessary or it is not required to seek approval.    As rightly pointed out by learned counsel for the State,  the question of approval arises only when the State  Government makes a request for such approval in respect of  cases falling under the enumerated categories in Section 2. A  bare perusal of Section 2 of the Act makes the position clear  that it has no application when the State Government does not  intend to do any of the enumerated acts. The Section starts  with a non-obstante clause.  It deals with restriction on de- reservation of forests or use of forest land for non-forest  purpose. It provides in positive terms that no order in respect  of the enumerated actions can be made except with prior  approval of the Central Government. It does not even remotely  suggest that even when State Government does not want to  take action it shall yet be required to seek prior approval. In  the instant case, the State Government has made its intention  clear that it did not want to grant any lease in respect of the  concerned encroached property. Challenge to such decision at  different points of time has not yielded any success to the  applicant. That being so, view of the Division Bench of the  High Court that even for its decisions not to grant lease the  State Government has to seek prior approval of the Central  Government is not correct. The view is clearly contrary to the  express language of Section 2 of the Act. The inevitable  conclusion is that the High Court was not justified in giving  impugned direction. The impugned judgment of the Division  Bench is set aside, and the Writ Petitions are dismissed.  The  appeals are allowed. No costs.