Bihar State Mineral Development Corporation vs State of Bihar and Others

B.M. Lal, C.J.—The facts as are appearing on the record and arguments advanced thereon raises a short question for disposal of this appeal,

Whether any land belonging to forest area i.e. forest land, if acquired under Land Acquisition Act, by virtue of the said acquisition, would its character as forest land, automatically stand ceased and emerge as non-forest land ?

Whether pursuant to a lease excavation of minor mineral in forest area, without compliance of Section 2 of the Forest (Conservation) Act, 1980 would be permissible.

This Letters Patent Appeal is directed against the impugned order dated 9.4.98 passed in C.W.J.C. No. 1526 of 1997 between the parties whereby and where under the Writ Court while repelling the submissions of the Appellant dismissed the writ petition holding that the Respondents are within their right to stop the mining operation from the Forest Area.

Assailing the Writ Court Judgment, learned Counsel submitted that Section 2 of the Forest (Conservation) Act, 1980 has no application in the instant case and, therefore, there was no necessity of obtaining prior permission from the Central Government for continuing with the mining operation as approval of the Central Government is not sine qua non for renewal of the lease.

Thus it is submitted that once under the provisions of the Land Acquisition Act, land is acquired and allotted free from all encumbrances, the said land can not be treated or continued as part of the forest land as its character of forest land stands automatically ceased and it emerges as non-forest land.

Before adverting to the point in issue, it is necessary to give certain relevant facts. Two parcels of land belonging to forest land admeasured 86 acres and 86.50 acres situated in the different settlements of Santhal Parganas, namely, Chandula and Simalgoda were acquired under Land Acquisition proceedings vide L.A. Nos. 52 of 1962-63 and 18 of 1964-65 for Farraka Barrage Project. After the acquisition, both the parcels of land of the descriptions given above, were vested in the absolute ownership of Farraka Barrage Authority for the purpose of quarrying stone materials for the construction of Farraka Barrage. However, after the completion of Farraka Barrage Project, the said lands were transferred by registered sale deed dated 10.10.75 to the Bihar State Mineral Development Corporation, which is a State within the meaning of Article 12 of the Constitution, established in the year 1992 for promoting the mineral development in the State of Bihar.

Thus, since the date of sale i.e. 10.10.1975 the lands in question are in possession of the above said Corporation and are being used for excavation of minor minerals.

The fact that the lands in question, prior to acquisition, belonged to the Forest area is not disputed. However, as pleaded by the Respondents the revenue records describe some of the plots as "Jungal Jhari" and "Kurwa Bari". In between 1875 to 1884 on account of massive deforestation in the district of Santhal Parganas where the instant lands are located, the then Government of Bengal vide its notification No. 4844 dated 2.11.1894 declared all unsettled Government lands as protected forest under the provisions of the Indian Forest Act, 1878. Since then these lands are parts of protected forest as declared by the Forest Department and the said notification is still valid.

Two prima facie documents in this regard have been filed and annexed by the Respondents, showing that since last Survey Settlement operation the said lands were recorded as ''Gairmazrua Jangal'' (waste land suitable for afforestation or protection) and ''Gairmazrua Digar'' (other kind of waste land) and vide Government notification dated 25.2.1946 the lands in question were notified u/s 4 of the Indian Forest Act, 1927, as reserved forest and, accordingly, the Government appointed a Forest Settlement Officer and Deputy Commissioner, Santhal Pargana, as appellate authority.

Now coming to the point in issue, the object and reason of the Forest (Conservation) Act, 1980, are to be taken into consideration. On account of enormous growth of population, besides the basic requirements, massive deforestation started, which has ultimately resulted in ecological imbalance causing serious threat not only to the existence of human being but also to other living creature, which led to environmental deterioration. Therefore, it was thought over to enact a law to protect the forest from deforestation so as to prevent ecological imbalance and that is how the Forest (Conservation) Act, 1980, came into existence and due to which, to some extent, environmental deterioration has been checked.

Provisions of Section 2 of the Forest (Conservation) Act, 1980, are material, which are being reproduced herein below for the proper appreciation of the case ;

Restriction on the dereservation of forest 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 naturally in that land or portion, for the purpose of using it for reafforestation. Explanation- For the purpose of this section "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for-

(a) the cultivation of tea, coffee, spices, rubber, palms, oilbearing plants, horticultural crops or medical plants ;

(b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild life, namely, the establishment of check-post, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes'' trench marks, boundary marks, pipelines or other like purposes.

This provision begins with non-obstante clause meaning thereby that the provisions of the Act will have its full operation rather to say prevail upon any other law with imperative force. However, as appeared from the arguments that if two or more enactments are operating in the same field and each containing non-obstante clause, what will be the effect and the non-obstante clause of which enactment shall prevail over the other.

Precisely this point is taken into consideration by our Apex Court in Ashoka Marketing Ltd. and another Vs. Punjab National Bank and others, , wherein in paragraph 65 it has been held that latter Act will prevail over the earlier one. Provisions of two Act, namely, Public Premises (Eviction of unauthorised occupants) Act (40 of 1971) and Delhi Rent Control Act (49 of 1958) were the subject matter of consideration in that case that if in both the Acts the relevant provisions begin with non-obstante clause having some conflict between the two, which will prevail. Dealing with the same, it is held that latter Act i.e. Public Premises (Eviction of unauthorisd Occupants) Act (40 of 1971) will prevail over Delhi Rent Control Act (59 of 1958).

Thus, there is no difficulty unless it is brought to our notice that the relevant provisions of the latter Act also begins with the non-obstante clause taking away the effect and over-riding the provisions of Section 2 of the Forest (Conservation) Act, 1980. So in the absence of any other relevant enactment, we are of the opinion that by virtue of non-obstante clause of Section 2 of the Forest (Conservation) Act, 1980, it shall prevail over all other relevant provisions of other Act including that of Minor Mineral Concession Rules, which have been framed under the Mining Act having the statutory force of law.

Admittedly by a bare reading of Section 2 of the Forest (Conservation) Act it appears that it imposes a restriction on use of forest land for non-forest purposes. Therefore, it is not that the provisions of Section 2 of the Forest (Conservation) Act only applies to reserve forest but it applies to all kinds of forests. That is how we read the words used in Section 2(i) and (ii) "any forest land", "any portion.'' thereof" may be used for any non-forest'' purpose, except with the prior approval of the Central Government.

Thus this provision of Section 2(i) and (ii) of the Forest (Conservation) Act gives answer to the question that it is not automatic that by virtue of acquisition of forest land, its character as forest land automatically stands ceased and it emerges as non-forest land. But for the use of non-forest activity, in the instant case, excavation of minor mineral, prior permission of the Central Government is a must, inasmuch as Section 2 of the Forest (Conservation) Act, 1980, applies with full force in the grant of renewal of mining lease as well and even if any non-obstante clause either appearing in the lease agreement or even in Indian Forest Act, the same will be defeated by the maxim "leges posteriores priores conterarias abrogant" i.e. latter laws abrogate earlier contrary laws. Not only this, the Forest (Conservation) Act, 1980, is a special Act and, as such, also it prevails over the Indian Forest Act. Hence, until the provisions of Section 2 of the Forest Conservation Act is not satisfied before the grant of renewal of the lease form the mining operation, it is not that only by virtue of acquisition of forest land its character as forest land automatically stands ceased and it would emerge as non-forest land providing a perpetual lever in the hands of the Appellant to use that land for non-forest purposes in the manner it likes.

At this juncture we are reminded of what our Apex Court has expressed the opinion where the State Government has granted lease for mining operation in the forest area disapproving the policy of granting lease for mining operation in the forest area. The Apex Court in unequivocal terms has held that mining in the forest area should be totally stopped and if any degree or order has already been obtained from any Court relating to renewal of mining lease the same shall stand vacated and similarly any appeal or other proceeding taken to obtain a renewal or against order/degree granting renewal shall also become honest. (See the decision in the case of Rural Litigation and Entitlement Kendra Vs. State of U. P., ).

Therefore, in law it is not that by virtue of acquisition of land a vested right is. acquired to the Appellant to continue mining operation without satisfying the test of the provisions of Section 2 of the Forest (Conservation) Act. This Act was enacted, as discussed above, for the conservation of the forest and the provisions thereof shall apply to all such forests ir-respective of ownership whether it is private or public. Even this argument also has no force that the Corporation is a State within the meaning of Article 12 of the Constitution and, therefore, the State is permitted to continue with the mining operation. The provisions of Section 2 of the Forest (Conservation) Act being imperative In nature, it applies to all concerned with full force and even if the State agency wants to operate forest land for mining purposes it too has to adhere to the provisions of Section 2 of the Forest (Conservation) Act. That is why in T.N. Godavarman Thirumulkpad Vs. Union of India and others, the Apex Court has held that,

The word ''forest'' must be understood according to its dictionary meaning. This description covers all statutorily recognised 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-the conservation and the matters connected therewith must apply clearly to all forests so understood irrespective of ownership or classification thereof.

In similar situation where lease for minor mineral was granted and the renewal stage has reached, in this context the Apex Court in Divisional Forest Officer and Others Vs. S. Nageswaramma, ruled that lessee has no vested right to renewal during subsistence of lease to extract minerals within forest area when the provisions of Section 2 of the Forest Conservation Act was in force which requires prior permission of the Central Government as condition precedent for lease by State, Government.