( Reportable)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5180 OF 2001
A. Chowgule & Co. Ltd. ........Appellant
Vs.
Goa Foundation & Ors. ............Respondents
JUDGMENT
HARJIT SINGH BEDI,J.
1. The facts leading to the filing of this appeal are as under:
2. The appellant, a company incorporated under the
Companies Act, has its registered office at Chowgule
House, Mormugao Harbour,Goa and is a recognized star
trading house engaged in the mining, processing and
export of iron ore. In the year 1979, the appellant took a
decision to establish a 100 per cent export oriented unit
in Sanguem Taluka situated at a short distance from its
2
existing mines. The process of locating suitable land for
the unit took about 10 years and the process for the unit
was finally set in motion by a letter dated 21st December
1988 from the Collectorate of South Goa, Revenue
Department to the Inspector of Survey, Land Records,
Mangao-Goa informing the said officer that the
Government of Goa had decided to lease an area of 15
hectare out of 26.4675 hectares to the appellant under
Survey No. 12 of Potrem Village in Sanguem Taluka and
directions were issued that the area be demarcated and
the other formalities complied with. On 17th August
1989, the appellant addressed a letter to the Secretary
for Industrial Approvals, Ministry of Industries of the
Central Government about the proposal to set up an
integrated unit including a benefication plant at Tuduo
Mines for the production of saleable iron ore at a cost of
Rs.25 crores and to operate it as a 100 per cent export
oriented unit. A formal letter of intent was also issued to
the appellant on 25th January 1991. Pursuant to the
decisions taken, a Memorandum of Lease dated 1st
3
November 1989 was executed between the Governor of
Goa and the appellant whereby an area of 12 hectares
was leased out for the purpose of ancillary work
connected to mining and for that purpose the appellant
was authorized to construct the necessary civil
structures. The appellant also, on 7th of February 1990,
entered into a contract with a Japanese Corporation for
the export of processed iron ore. A No Objection
Certificate from the Goa State Pollution Control Board
was obtained on 15th April 1991 and a Sanad dated 10th
July 1991 was also issued by the Deputy Collector of
Goa permitting the use of the land for non-agricultural
purposes upon payment of Rs.6 lakhs by way of
conversion fees. It is the case of the appellant that
pursuant to the aforesaid administrative sanctions and
decisions, machinery worth Rs.12 crores was imported
for the operation of the project. At this juncture
Respondent Nos.1, 2 and 3 filed Writ Petition No.113 of
1992 in public interest before the Goa Bench of the
Bombay High Court praying for a writ of certiorari for
4
quashing the Memorandum of Lease dated 1st November
1989 and for several other reliefs. Respondent No.5
herein, the Conservator of Forests, Goa filed an affidavit
before the High Court pointing out that the 12 hectares
of land which had been leased to the appellant had
already been classified as Revenue Land meant for "Dry
Crops" and was not a forest area, as had been contended
by the writ petitioners/respondents 1,2 and 3. On 26th
March 1992, the High Court adjourned the matter for 8
weeks in view of the statement made by the Advocate
General that the State Government proposed to take up
the matter with the Central Government so as to secure
the necessary approvals postulated under section 2 of
the Forest Conservation Act, 1980 (hereinafter called the
"Act") and as such it was unnecessary to proceed with
the writ petition. The High Court, accordingly, adjourned
the matter for 8 weeks without any discussion on merits
with liberty to all parties to press their submissions in
case the need arose. Pursuant to the assurance given by
the Advocate General to the High Court, the State
5
Government wrote to the Ministry of Environment and
Forest, New Delhi on 7th May 1992 pointing out that out
of the 12 hectares leased to the appellant a small area of
about 5000 square meters would be used for the erection
of the benefication plant and that appellant had also
taken to raise compensatory afforestation in one hectare
in non-forest area in Survey No.42 Santanu Village of
Sangueme Taluka and as the unit was likely to earn
foreign exchange and the broad sanctions had already
been given by the concerned quarters, clearance under
section 2 of the Act be accorded. The writ petition
aforesaid once again came up for consideration on 17th
November 1992 and while granting some interim relief to
the writ petitioners-respondents, it was directed that the
petition be listed for final disposal in January 1993. The
Ministry of Environment and Forest, in the meanwhile,
vide its letter dated 25th May 1993 conveyed its approval
in principle for diversion of 4.44 hectares of forest land
from Potrem village subject to several conditions which
were statedly complied with by the appellant and a final
6
decision allowing the diversion was also conveyed to the
appellant on 7th November 1997. Writ Petition No.113 of
1992 came up for final disposal before the Goa Bench on
21st July 2000 and was duly allowed and writ of
certiorari was issued quashing the lease agreement dated
1st November 1989. It was, inter-alia, held that the
various approvals/sanctions granted to the appellant by
the Industries Department or by the Collector could not,
by any stretch of imagination, be construed as
permission for deforestation of the forest area, as
envisaged by section 2 of the Act as the said Act required
prior approval of the Central Government after the
procedure given in Rules 4, 5 and 6 of The Forest
(Conservation) Rules 1981 (hereinafter called the "Rules")
had been followed. The plea of the appellant that the
area concerned was not a forest was also repelled with
the observations that an average of 250 trees per hectare
were growing on the land, as was clear from the affidavit
filed by the Deputy Conservator of Forest, R.Nagbhushan
Rao and that the entire area was heavily forested with
7
3000 trees and was in addition contiguous to the
Government forests. The Bench also observed that
merely because the land had been described as "Dry
Crops Land" would not change the nature of the land as
it was apparently a wrong description more particularly
as Section 2 ibid referred not only to forests but to forest
land as well. For arriving at its decision, the Division
Bench relied upon the decision of this Court in
T.N.Godavarman Thirumulkpad vs. Union of India &
Ors. (1997) 2 SCC 267 in which it was held that the
term `forest' was to be given an extended meaning so as
to cover all statutorily recognized forests whether
designated as reserved, protected or otherwise for the
purpose of section 2 of the Act. Having held as above,
the Division Bench observed that the 12 hectares being
forest land, prior permission under section 2 of the Act
was the sine qua non for the execution of the lease deed
dated 1st of November 1989 and finally concluded as
under:
8
"Does the subsequent act of granting
permission communicated by letter of 18th
May 1993 enable respondent No.4 to carry on
with those development activities on the 4.44
hectares? The letter of 8th July 1997 seeks
prior approval of Central Government. In the
instant case as we have been there is no prior
approval for entering into a lease deed any of
the term of lease can be set out. Condition
No.1 shows that the legal status of the forest
land shall remain unchanged. The permission
is co-terminus with lease granted by the State
Government with effect from 1st November
1989. Therefore, it proceeded on the footing
that prior approval is being sought. In the
instant case the records show that prior
approval was not taken. In that context mere
permission granted for development will be of
no consequence. It is true that the petitioner
has not challenged the subsequent
permission granted. However, what is material
to notice is that the area was a forest. In spite
of that, without prior permission, the
respondent No.1 granted the lease in favour of
the respondent No.4. The lease was contrary
to law. Once the lease was contrary to law,
the question of the State Government applying
at the behest of respondent No.4 for
permission would not arise.
Even otherwise the land is situated to an
adjacent Government forest and the land is
sought to be used for setting up of a
beneficiation plant which involves dust and
water pollution and consequent destruction of
the adjoining forest. It will substantially affect
the environment and ecology of the area.
This, in fact, would affect the right to life. The
petitioners in the petition have averred that
the cutting of trees without obtaining
9
permission was resorted to. In matters of
ecology and environment and considering the
principle of sustainable development, no
person or organization, however, high and
mighty they may be, can be permitted to flout
the law of the land.
Considering that, in our opinion, the lease
granted in favour of respondent No.4 is still
born, null and void. Respondent No.1 is
directed to restore the land to its original use.
Rule made absolute in the aforesaid
terms. In the circumstances, there shall be
no order as to costs."
It is these circumstances that the appeal is before us.
3. Mr. Shrivastava, the learned senior counsel for the
appellant has raised several arguments during the
course of hearing. He has first and foremost pointed out
that there had been no violation of the provisions of
Section 2 of the Act in the background that the
Government of India had given its post-facto approval to
the project and that the State Government had accorded
its approval on 21st December 1988 and that the
Government of India had also conveyed its approval in
principle for the diversion of 4.44 hectares of the land
subject to several conditions which had been complied
10
with and in this view of the matter, any flaw, which may
have been present at the initial stage, had been rectified.
It has been submitted that the aforesaid arguments were
further fortified from the letters of the Ministry of
Environment and Forest, Government of India dated 18th
May 1993 and 7th November 1997 for the use of 4.44
hectares of forest land in Porterm village in favour of the
appellant subject to the condition, inter-alia, that
compensatory afforestation would be carried out over
non-forest land at the cost of the project. It has,
accordingly, been submitted as the lease deed has been
executed for an area of about 15 hectares and was as per
record not a forest area, the entire area ought to be left
for the use of the appellant-company and that the 4.44
hectares which had been cleared not only by the State
Government but by the Ministry of Environment and
Forest, Government of India should in any case be left
out for the benefit of the appellant. The learned counsel
has relied upon (1985) 3 SCC 643 (State of Bihar vs.
Banshi Ram Modi & Ors. ) and AIR 1990 Andhra
11
Pradesh 257 (Hyderabad Abrasives & Minerals,
Hyderabad vs. The Govt. of A.P. Forest Department,
Hyderabad & Anr. in support of his case.
4. Mr. Sanjay Parekh, the learned counsel for the
respondents has, however, submitted that as a matter of
fact, the benefication plant had already been shifted
from the proposed site and that this fact had been
withheld from the High Court as well as from this Court
during the course of the protracted hearings. It has also
been strongly urged that Section 2 of the Act and the
Rules pre-supposed a prior approval of the Central
Government as per the prescribed procedure before the
dereservation of forest land and formal approvals
granted by any other agency or by the Central
Government ex-post facto, would not cure any defect in
the dereservation. It has been submitted that even as
per the appellant's case, the lease deed for 12 hectares
had been executed on 1st November 1989, but the
approval for the diversion of 4.44 hectares of land had
12
been accorded in the year 1997 and would, therefore not
operate retrospectively even for this limited area. It has
also been argued that the appellant's undertaking to
cause afforestation in an area equivalent to the one
leased out as per the stipulation of the Central
Government in the afore referred documents, was also
not acceptable in the light of the fact that the lease deed
itself was contrary to law. It has also been pointed out
that the finding of fact recorded by the High Court was
that the area in question was indeed a forest and that
the judgments cited by the appellant's counsel had been
clarified by the Supreme Court in a series of subsequent
judgments reported in (1987) 1 SCC 213 (Ambica
Quarry Works vs. State of Gujarat & Ors.), 1989
Suppl. (1) SCC 504 (Rural Litigation & Entitlement
Kendra vs. State of U.P., (1997) 2 SCC 267
(T.N.Godavarman Thirumulkpad vs. Union of India &
Ors.) and (2004) 12 SCC 118 (M.C.Mehta vs. Union of
India & Ors.).
13
5. We have considered the arguments advanced by the
learned counsel for the parties. It is evident from the
record and what has been recorded earlier that the
primary issue is with regard to the permission granted
by the Central Government for the diversion of the forest
area. Section 2 of the Act and the relevant Rules are
reproduced below:
"Sec. 2. Restriction on the dereservation 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 -
(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 purpose;
(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 organisation
not owned, managed or controlled by
Government;
(iv) that any forest land or any portion thereof
may be cleared of trees which have grown
14
naturally in that land or portion, for the purpose
of using it for re-afforestation.
Rules.
Rule 2(b). "Committee" means the Committee
constituted under Section 3.
2A.(1)Composition of the Committee:- The
Committee shall be composed of the following Members:-
i. Inspector General of Forests,Ministry of
Environment & Forests - Chairman.
ii. Additional Inspector General of Forests,
Ministry of Environment and Forests -
Member.
iii. Joint Commissioner (Soil Conservation),
Ministry of Agriculture - Member.
iv. Three eminent environmentalists (non-
officials) - Member.
v. Deputy Inspector General of Forests,
(Forest Conservation), Ministry of
Environment and Forests - Member-
Secretary.
4.Procedure to make proposal by a State
Government or other authority:-
(1) Every State Government or other authority
seeking the prior approval under section 2 shall
send its proposal to the Central Government in the
form appended to these rules:
Provided that all proposals involving clearing
naturally grown trees in forest land Or portion
thereof for the purpose of using it for
15
reafforestation shall be sent in the form of Working
Plan/Management Plan.
(2) Every proposal referred to in sub-rule (1) shall
be sent to the following address, namely:-
Secretary to the Government of India
Ministry of Environment & Forests
Paryavaran Bhavan, CGO Complex
Lodi Road, New Delhi - 110003
Provided that all proposals involving forest land up
to twenty hectares and proposals involving clearing
of naturally grown trees in forest land or portion
thereof for the purpose of using it for
reafforestation shall be sent to the Chief
Conservator of Forests/Conservator of Forests of
the concerned Regional Office of the Ministry of
Environment and Forests.
5. Committee to advise on proposals received by the
Central Government:-
1. The Central Government shall refer every
proposal received by it under sub-rule (1) of rule 4
to the committee for its advice thereon if the area of
forest land involved is more than twenty
hectares.Provided that proposals involving clearing
of naturally grown trees in forest land or portion
thereof for the purpose of using it for
reafforestation shall not be referred to the
Committee for its advice.
2. The Committee shall have due regard to all or
any of the following matters while tendering its
advice on the proposals referred to it under sub-
rule (1), namely :-
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a. Whether the forests land proposed to be used
for non-forest purpose forms part of a nature
reserve, national park wildlife sanctuary, biosphere
reserve or forms part of the habitat of any
endangered or threatened species of flora and
fauna or of an area lying in severely eroded
catchment;
b. Whether the use of any forest land is for
agricultural purpose or for the rehabilitation or
persons displaced from their residences by reason
of any river valley or hydro-electric project;
c. Whether the State Government or the other
authority has certified that it has considered all
other alternatives and that no other alternatives in
the circumstances are feasible and that the
required area is the minimum needed for the
purpose; and
d. Whether the State Government or the other
authority undertakes to provide at its cost for the
acquisition of land of an equivalent area and
afforestation thereof.
3. While tendering the advice, the Committee may
also suggest any conditions or restrictions on the
use of any forest land for any non-forest purpose
which, in its opinion, would minimize adverse
environmental impact.
6. Action of the Central Government on the advice
of the Committee - The Central Government shall,
after considering the advice of the committee tendered
under rule 5 and after such further enquiry as it may
consider necessary, grant approval to the proposal with
or without conditions or reject the same."
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6. A bare perusal of the aforesaid provisions would show
that prior approval is required for the diversion of any forest
land and its use for some other purpose. This is further
fortified by a look at Rule 4 which provides that every State
Government or other authority seeking prior approval under
Section 2 of the Act shall submit a proposal to the Central
Government in the prescribed form and Rule 6 stipulates that
the proposals would be examined by a committee appointed
under Rule 2-A within the parameters and guidelines
postulated in Rule 5. There is nothing on record to suggest
that this procedure had been adopted. Admittedly also the
approval for 4.4 hectares had been obtained long after the
lease deed had been executed on 1st November 1989 and
there is no suggestion that even for this limited area the
procedure envisaged under Rules 4, 5 and 6 had been
followed. We are, therefore, of the opinion even assuming that
some approval was granted with respect to 4.44 hectares of
land in the year 1997, it would not amount to prior approval
in terms of the Act and the Rules afore quoted. Mr.
Shrivastava has, however, pointed out that in the light of the
18
judgment in Banshi Ram Modi's case (supra), as the 4.44
hectares of land were to be utilized for the purpose of an
existing and adjoining mining activity, the prior approval
envisaged under section 2 was not required. We find,
however, that the aforesaid judgments do not apply to the
facts of the present matter as it is nobody's case that any
mining activity was going on near the land which is now
sought to be leased out. In the above cited cases, the primary
question was as to whether in the case of a lease granted prior
to the coming into force of the Act, the provisions of Section 2
would apply at the time of the renewal of the lease after the
Act had become operative. Concededly this is not the case
before us and on the contrary in Hyderabad Abrasives case
(supra) it has been specifically observed that the material date
"for the purpose of the Act is not the date of the lease is
granted, but the date on which the State Government or other
authority permits the breaking up, or clearing of the forest
land or any portion thereof", the implication being that the
initial lease deed could be granted earlier to the promulgation
of the Act, but for renewal, the provisions of the Act would be
19
operable. We also find that the observations in Ambica
Quarry Works, Rural Litigation & Entitlement Kendra,
T.N.Godavarman Thirumulkpad and M.C.Mehta cases (supra),
would indicate that after the coming into force of the Act, the
renewal of a pre-existing mining lease in a forest area can be
granted only if the requirements of Section 2 are satisfied. It
is therefore obvious that the claim of the appellant confined
only to 4.44 hectares is also untenable for the reasons given
above and that in any case, the benefication plant to which
this area was to be attached had been shifted from its earlier
proposed location.
7. It has finally been submitted by Mr. Shrivastava that the
land in question was not a forest and was, therefore, not
subject to the provisions of the Act and that in any case, the
appellant was willing to reforest an identical area if the lease
was permitted to operate. We find from a perusal of the High
Court judgment that this question of fact had been adequately
dealt with based on the affidavits filed in Court and also on a
perusal of the Revenue record. Some argument has been
made by Mr. Shrivastava on the discordance between the
20
affidavits filed by the two Forest Officers, T.Ramaswamy and
R. Nagbhushan Rao. We however discern no difference with
regard to the basic factum as to the nature of the land in
question and the only difference, if at all, is with regard to the
number of trees per hectare said to be growing on the land.
We, thus, have no hesitation in confirming this finding of fact.
In T.N.Godavarman Thirumulkpad case (supra), this Court
expressed its dissatisfaction with some of the State
Governments in the implementation of the provisions of the
Act and observed thus:
"The Forest Conservation Act, 1980 was
enacted with a view to check further deforestation
which ultimately results in ecological imbalance;
and therefore, the provisions made therein for the
conservation of forests and for matters connected
therewith, must apply to all forests irrespective of
the nature of ownership or classification thereof.
The word "forest" must be understood according to
its dictionary meaning. This description covers all
statutorily recognized forests, whether designated
as reserved, protected or otherwise for the purpose
of Section 2(i) of the Forest Conservation Act. The
term "forest land", occurring in Section 2 will not
only include "forest" as understood in the
dictionary sense, but also any area recorded as
forest in the Government record irrespective of the
ownership. This is how it has to be understood for
the purpose of Section 2 of the Act. The provisions
enacted in the Forest Conservation Act, 1980 for
21
the conservation of forests and the matters
connected therewith must apply clearly to all
forests so understood irrespective of the ownership
or classification thereof. This aspect has been made
abundantly clear in the decisions of this Court in
Ambica Quarry Works vs. State of Gujarat, Rural
Litigation and Entitlement Kendra vs. State of U.P.
and recently in the order dated 29.11.1996
(Supreme Court Monitoring Committee vs.
Mussoorie Dehradun Development Authority ). The
earlier decision of this Court in State of Bihar v.
Banshi Ram Modi has, therefore, to be understood
in the light of these subsequent decisions.We
consider it necessary to reiterate this settled
position emerging from the decisions of this Court
to dispel the doubt, if any, in the perception of any
State Government or authority."
8. We are, therefore, of the opinion that in the light of the
aforesaid emphatic and clear cut observations, and findings of
fact, there can be no doubt that the land leased out to the
appellant was indeed a forest.
9. Some arguments have flown during the course of the
hearing that the appellants were willing to reforest an
identical area in case the lease was allowed to be effectuated.
In this connection, some observations need to be made. The
basic question is as to what is implied by the terms
afforestation or re-forestation. Is it merely the replacement of
22
one tree with another or does it imply some thing a little more
complex? "Reforestation is the restocking of existing forests
and woodlands which have been depleted, with native tree
stock, whereas afforestation is the process of restoring and
recreating areas of woodlands or forest that once existed but
were deforested or otherwise removed or destroyed at some
point in the past". In the present case, we are concerned with
afforestation and the promise of the appellant to plant trees in
an equivalent area. We, however, find from experience and
observation that the re-forestation or afforestation that is
being carried out in India does not meet the fundamentals
and the planting of new trees to match the numbers removed
is too simplistic and archaic a solution, as in the guise of
compensatory replantation, local varieties of trees are being
replaced by alien and non-indigenous but fast growing
varieties such as poplar and eucalyptus which make up the
numbers but cannot satisfy the needs of our environmental
system. It must be borne in mind that both re-forestation and
afforestation envisage a resurrection and re-plantation of trees
and other flora similar to those which have been removed and
23
which are suitable to the area in question. There is yet
another circumstance which is even more disturbing
inasmuch as the removal of existing forest or trees suited to
the local environment have destroyed the eco system
dependent on them. This is evident from the huge depletion
of wild life on account of the disturbance of the habitat arising
out of the destruction of the existing forest cover. A small but
significant example is the destruction of plantations alongside
the arterial roads in India. 30 years ago all arterial roads had
huge peripheral forest cover which not only provided shade
and shelter to the traveller but were a haven to a large variety
and number of birds and other wild life peculiar to that area.
With the removal of these plantations to widen the roads to
meet the ever growing needs of the traffic, and their
replacement by trees of non-indigenous varieties, (which are
often not eco or bird friendly) in the restricted and remaining
areas bordering the widened roads, the shelter for birds has
been destroyed and where thousands of birds once nested
and bred, there has been a virtual annihilation of the bird life
as well. Those who live in North India would do well to
24
remember that a drive along the Grand Trunk Road, National
Highway No.1, northwards of Delhi, particularly during the
hours of dawn or dusk, was as if through an aviary with
thousands of birds representing a myriad of species with their
distinctive calls reaching a crescendo during early evening
and gradually fading into silence as darkness set in. Sadly,
all that can now be seen are crows feeding on the decaying
and mutilated carcasses of dogs and other animals killed by
speeding vehicles. Equally disturbing is the decrease in the
reptilian population as the undergrowth in which it lived and
prospered has been destroyed, and with the concomitant
increase in the rodent population, colossal losses and damage
to the farmer and in the storage of food grains.
10. We are, therefore, of the opinion that
there is no merit in the appeal. It is accordingly dismissed.
No order as to costs.
.................................J.
(Tarun Chatterjee )
...................................J.
(Harjit Singh Bedi )
25
New Delhi,
Dated: August 18, 2008
