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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: BANSHI RAM MODI & ORS.

DATE OF JUDGMENT07/05/1985

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SEN, A.P. (J)

CITATION:  1985 AIR  814            1985 SCR  Supl. (1) 345  1985 SCC  (3) 643        1985 SCALE  (1)1201  CITATOR INFO :  D          1987 SC1073  (17,18)  D          1988 SC2187  (35)

ACT:      Forest   (Conservation)    Act,   1980,    s.    2(ii)- Interpretation of-Mining  lease granted prior to coming into force of  the Act-Minerals  not specified  in lease found in the area-Whether  permission of Central Government necessary for winning new minerals from the same area.

HEADNOTE:      Clause (ii)  of Section 2 of Forest (Conservation) Act, 1980 (for  short, the  Act) which came into force on October 25, 1980,  provides that  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 that any forest land or any portion thereof may be used for any non-forest purpose. Explanation to section 2 of the Act  defines "non-forest  purpose"  as  breaking  up  or clearing of  any forest  land or  portion  thereof  for  any purpose other than reafforestation.      Respondent No.  1, who  had been granted a mining lease in the  year 1966  for a  period of  20 years for mining and winning mica  in respect  of 80  acres of land in accordance with Mining  Concession Rules,  1960 came  across two  other minerals, namely,  felspar and  quartz during  the course of mining  operations.  Under  the  conditions  of  the  lease, Respondent No.  I applied to the State Government to include the said  minerals also in the earlier lease deed so that he could win and dispose of these minerals also. Thereupon, the State  Government   and  the   lessee  executed  a  Deed  of Incorporation on  April 6,  1983 allowing  the lessee to win and carry  away felspar and Quartz after paying the required royalty from  the area  over which he had been granted lease for mining  mica. On  August 8,  1983 the  Divisional Forest Officer wrote  a letter  to  the  lessee  stating  that  the impugned mining area was situated within the reserved forest area and  that,  since  previous  approval  of  the  Central Government had  not been  obtained for  inclusion of felspar and quartz  in the  mining lease  as required  by  the  Act. Respondent No.  I could  not be permitted to win felspar and

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quartz even  through the  Deed  of  Incorporation  had  been executed. Aggrieved  by the  said letter,  Respondent No.  I filed a  writ petition in the High Court contending that the provisions of  the Act  were not  applicable to a case where the lease  had been  entered into  prior to  the coming into force of  the Act  and that there was no need to break up or clear any forest land other than the area of only 5 acres of land where mining operations were being carried on. The High Court allowed  the writ  petition. Hence  this appeal by the State. 346      Disposing of the appeal, ^      HELD: (1)  It is clear from a reading of clause (ii) of section 2  of the  Act and  the Explanation  to that section that these  two parts  Or the  section mean  that after  the commencement of  the Act I o fresh breaking up of the forest land or no fresh clearing of the forest on any such land can be permitted  by  any  State  Government  or  any  authority without the prior approval of the Central Government. But if such permission  has been  accorded before  the coming  into force of the Act and the forest land is broken up or cleared then obviously the section cannot apply. [350 D-F]      (2) In  the instant case, it is not disputed that in an area of five acres out of eighty acres covered by the mining lease the  forest land had been dug up and mining operations were being carried on even prior to the coming into force of the Act.  If the  State Government permits the lessee by the amendment of  the lease  deed to  win and remove felspar and quartz also  in addition  to mica it cannot be said that the State Government  has violated  section 2 of the Act because thereby no  permission for  fresh breaking up of forest land is being  given. The result of taking the contrary view will be that  while the  digging for purposes of winning mica can go on, the lessee would be deprived of collecting felspar or quartz which  he may  come across  while he  is carrying  on mining operations  for winning  mica. That  would lead to an unreasonable result  which would not in any way subserve the object of the Act. [350 G-H; 351 A]      (3) While  before granting  permission to  start mining operations on  a vergin  area section 2 of the Act has to be complied with,  it  is  not  necessary  to  seek  the  prior approval of  the Central Government for purposes of carrying out mining operations in a forest area which is broken up or cleared before the commencement of the Act. [351 B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2439 of 1984.      From the  Judgment and  Order dated  18.11.1983 of  the Patna High Court in W.P. No. 1014 of 1983.      Jaya Narayan and Pramod Swarup for the Appellant.      Gaur G.  Ray, A.K  Nag, Mrs. N. Bakshi, Anil Dev Singh, P.P. Gupta and R.N. Poddar, for the Respondent.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  Respondent No. 1 Banshi Ram Modi was granted a  mining lease by the State of Bihar for mining and winning mica  in respect  of an area of eighty acres of land in the 347 villages  of   Meghatri  and  Bishuntikar  in  the  district Hazaribagh, which formed part of reserved forest area in the year 1966.  A mining  A lease  deed  was  executed  in  that

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connection by  the lessee  and the State Government on April 25, 1966  in accordance  with the  Mineral Concession Rules, 1960. The  lease deed  was registered  on May  30, 1966. The period of  lease was  fixed at 20 years. The said lease will expire on  April 24, 1986 unless it is renewed in accordance with law.      During his  mining operations  which are admittedly now being carried  on in  about five acres only Respondent No. 1 came across  two other  minerals namely  felspar and  quartz which are  commonly known to be associated minerals of mica. Under the  conditions of  the lease the lessee had to report to the  State Government the discovery in the leased area of any mineral  not specified in the lease within sixty days of such discovery and if any mineral not specified in the lease was so  discovered in  the leased  area he could not win and dispose of  such mineral unless such mineral was included in the  lease  or  a  separate  lease  was  obtained  therefor. Accordingly, on  discovery of felspar and quartz in the area where the  mining operations were being carried on for mica, Respondent No.  I applied to the State Government to include the said  minerals also  in the  lease executed on April 25, 1966, so  that he  could win  and dispose  of these minerals also. On  the State  Government agreeing to do so, a Dead of Incorporation dated  April 6,  1983 was duly executed by the parties to the original lease. By the said Deed, felspar and quartz were included in the original lease as minerals which the lessee  could  win  and  carry  away  after  paying  the required royalty  from the  area  over  which  he  had  been granted lease  for mining  mica. All other conditions of the lease including  the period  of lease  remained the same. In fact it  was not  a new mining lease for a fresh period. The lease  is  to  exp  re  on  April  24,  1986  as  originally stipulated.      It may  be mentioned here that the State Government did not obtain  the previous  approval of the Central Government for the  inclusion of  the two  new minerals in the original lease  under   clause  (ii)  of  section  2  of  the  Forest (Conservation) Act,  1980  (Act  69  of  1980)  (hereinafter referred to as ’the Act’) which was deemed to have come into force on October 25, 1980. The relevant part of section 2 of the Act reads thus:-          "2.  Restriction on the dereservation of forests or      use   of    forest   land   for   non-forest   purpose-      Notwithstanding 348      anything contained  in any other law for the time being      in A  force in  a State,  no State  Government or other      authority shall make, except with the prior approval of      the Central Government, any order directing,-       ...    ...     ...    ....         (ii) that any forest land or any portion thereof may      be used for any non-forest purpose.            Explanation-For the  purpose of this section ’non      forest purpose’  means breaking  up or  clearing of any      forest land  or portion  thereof for  any purpose other      than reafforestation."      It would appear that after the coming into force of the Act the  Government of India (Ministry of Agriculture) wrote to the  Chief Secretary  to the  Government of Bihar drawing his  attention  to  the  provisions  of  the  Act,  and  the prohibitions contained  therein. Perhaps, as a result of the said letter  the Divisional  Forest Officer,  Kodarma Forest Division, Kodarma, within whose jurisdiction the mining area of Respondent  No. 1 was situated, wrote to Respondent No. I on August  8, 1983 stating that the mining area was situated

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within the  reserved forest  area and  that  since  previous approval of the Central Government had not been obtained for inclusion of  felspar and  quartz in  the  mining  lease  as required by the Act, Respondent No. 1 could not be permitted to  win   felspar  and  quartz,  even  though  the  Deed  of Incorporation had been executed.      Aggrieved by  the said  letter of the Divisional Forest Officer, Respondent  No. I filed a writ petition on the file of the  High Court  of Patna  (Ranchi Bench) contending that the provisions  of the  Act were  not applicable  to a  case where the  lease had  been entered  into prior to the coming into force of the Act and that there was no need to break up or clear  any forest  land other than the area where  mining operations were  being carried  on.  The  High  Court  after hearing the  parties allowed  the writ petition holding that the Act  had no application to the instant case and he could win and  take away  felspar and quartz from the mining area. But it  however made  clear that  if for winning felspar and quartz the  lessee was  required to  break up  or clear  any forest land  other than  the area required for mining to win mica, he  could not  do so  without obtaining  the  previous approval of the Central Government under the Act. 349      Aggrieved by  the judgment of the High Court, the State of Bihar has filed this appeal by special leave.      In this  case it  has to  be mentioned that the learned counsel for  Respondent No. 1 has stated that Respondent No. 1 would  not in  any event carry on any mining operations on any area other than the five acres of land which had already been utilised  for non-forest  purpose even  before the  Act came into  force by breaking up the land, for the purpose of winning felspar  or quartz. It has also to be mentioned here that before the High Court, the learned Standing Counsel for the Central  Government had  stated  that  the  Act  had  no application to leases granted prior to the coming into force of the  Act-and that  there is  no repudiation of that stand before us  by the  Central Government.  In view of the above statements the  only question which remains to be considered in this  appeal is  whether the  mining operations which are being carried  on in  the five acres of land for the purpose of winning  felspar and quartz, are illegal by reason of the absence of  the previous  approval of the Central Government granted under the Act.      In order  to appreciate  the contentions of the parties on the  limited question  before  us,  it  is  necessary  to ascertain the object of the Act. As its Statement of Objects and Reasons  indicates, the  Act was  passed with  a view to checking deforestation  which had  been taking  place in the country on  a large  scale and  which had  caused ecological imbalance and thus led to environmental deterioration. It is well-known that  breaking up  of the soil or the clearing of the  forest   land  affects   seriously  reafforestation  or regeneration of  forests and  therefore such  breaking up of the  soil   can  only   be  permitted   after  taking   into consideration all  aspects  of  the  question  such  as  the overall advantages  and disadvantages  to the economy of the country, environmental conditions, ecological imbalance that is likely  to occur,  its effects on the flora and the fauna in the  area etc. The Act having stated in section 2 thereof that no  dereservation of  forests or use of forest land for non-forest purposes  can be  permitted without  the previous approval of  the Central Government has further provided for the constitution  of an  Advisory Committee  to  advise  the Central Government  on all  cases in  which the  question of granting permission required by section 2 of the Act arises.

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The Act  is intended  to serve a laudable purpose and it has got to  be enforced  strictly for the benefit of the general public. The  Act applies not merely to cases of mining lease granted in respect of areas within the reserved forests 350 but to  all cases where forest land is sought to be used for non-forest A purposes.      The question  before us  is a  narrow one  and that  is whether in the case of a mining lease which has been granted for winning a certain mineral prior to the coming into force of the  Act, if  the lessee  applies 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  is   already  utilised  for  non-forest  purposes  by carrying out  mining operations before the coming into force of the Act, the prior approval of the Central Government has to be obtained under section 2 of the Act for the purpose of granting such permission.      The relevant  parts of  section 2 of the Act which have to be construed for purposes of this case are clause (ii) of and the  Explanation to that section. Clause (ii) of section 2  of   the  Act   provides  that  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 that  any forest  land or  any  portion thereof  -   may  be   used  for   any  non-forest  purpose. Explanation to  section 2  of the  Act  defines  "non-forest purpose" as  breaking up  or clearing  of any forest land or portion thereof  for any purpose other than reafforestation. Reading them  together, these  two parts of the section mean that after  the commencement of the Act no fresh breaking up of the forest land or no fresh clearing of the forest on any such land  can be  permitted by  any State Government or any authority  without   the  prior   approval  of  the  Central Government. But  if such permission has been accorded before the coming  into force  of the  Act and  the forest  land is broken up  or cleared  then  obviously  the  section  cannot apply. In  the instant  case it  is not  disputed that in an area of five acres out of eighty acres covered by the mining lease the  forest land had been dug up and mining operations were being carried on even prior to the coming into force of the Act.  If the  State Government permits the lessee by the amendment of  the lease  deed to  win and remove felspar and quartz also  in addition  to mica it cannot be said that the State Government  has violated  section 2 of the Act because thereby no  permission for  fresh breaking up of forest land is being  given. The result of taking the contrary view will be that  while the  digging for purposes of winning mica can go on, the lessee would be deprived of collecting felspar or quartz which he may come across 351 while he  is carrying on mining operations for winning mica. That would lead to an unreasonable result which would not in anyway A  subserve the object of the Act. We are, therefore, of the  view that  while before granting permission to start mining operations  on a virgin area section 2 of the Act has to be  complied with  it is  not necessary to seek the prior approval of  the Central Government for purposes of carrying out mining operations in a forest area which is broken up or cleared before  the commencement  of the  Act.  The  learned counsel for  Respondent No.  1 has also given an undertaking the Respondent  No. 1  would confine  his mining  operations only to  the extent  of five  acres of  land on which mining operations have  already been  carried out and will not fell

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or remove  any standing  trees  thereon  without  the  prior permission in  writing from  the Central  Government. Taking into consideration  all the  relevant matters, we are of the view that  Respondent No.  I is  entitled to carry on mining operations in  the said  five acres  of land for purposes of removing felspar and quartz subject to the above conditions.      With the  above modification,  the judgment of the High Court is affirmed. The appeal is accordingly disposed of but with no order as to costs. M.L.A                                       Appeal disposed. 352