1. Heard learned counsel for the
petitioner as also the learned Advocates,
appearing for the Department of Mines and
Geology and the Divisional Forest Officer,
Gaya.
2. In this application, the petitioner has prayed for a direction to the respondents not to obstruct with the mining operation over an area for which a valid mining lease has been granted by the competent authority. It is stated that with respect to an area of 6.90 acres of land, in Mauza Naili (Kushdira) Plot No. 1 (Part) in the district of Gaya, initially a lease was granted for stone crushing on 6-3-1976. The said lease was renewed from time to time and ultimately at last on 19-7-1991 it was renewed for a period of five years by the District Mining Officer, Gaya. In a revision Case No. 23 of 1991, filed by the petitioner, the period of five years was enhanced to 10 years by the Mines Commissioner in accordance with the Government policy.
3. Counter-affidavits on behalf of the respondents have already been filed in this case, therefore, with the consent of the parties, this application is being disposed of at the stage of admission itself.
4. It is alleged that all of a sudden, respondent No. 4 on 17-1-1992 stopped the mining operation, being carried out by the petitioner, and seized the truck, tools and other materials, belonging to the petitioner, copy of such seizure list is Annexure-3 to the writ application. It is stated since the petitioner was holding a statutory lease, granted by the competent authority, and continuing over the land, the officials of the Forest Department had no authority to interfere with peaceful possession of the petitioner and seize the commodities, disclosed above.
5. It has been contended that since initial mining lease was granted before the Forest (Conservation) Act came into force, the approval of the Central Government for renewal of such lease was not necessary.
It was next contended that in view of the statutory lease, the petitioner has fundamental right to carry on the mining operation over the leased hold land. The petitioner cannot be deprived of his legal right, unless he is given a proper notice with reasonable opportunity before taking such arbitrary decision in accordance with law.
It was further urged that admittedly, no notice was given to the petitioner by either department, therefore, any action, depriving him from operating the mines is illegal and without jurisdiction.
6. Admittedly, the Mining Department is the appropriate authority for granting such lease and its renewal. The land in question for the purpose of mining settlement is also notified under the jurisdiction of the Department of Mines and Geology.
7. From the counter-affidavit, which has been filed on behalf of respondents Nos. 3 and 4, it appears that as per the Forest (Conservation) Act, 1980 (in short 'the Act'), which came into force with effect from 25-10-1980, for grant or renewal of such mining lease, prior approval of the Central Government was necessary, therefore, the renewal of mining lease in the instant case made after the year, 1981, was illegal and without jurisdiction, because prior approval of the Central Government was not obtained. Respondents Nos. 3 and 4 had every right to restrain the petitioner from operating -the mines. It is stated that the area over which the petitioner was operating the mines was notified as Forest land. Any agreement or grant of mining lease in favour of the petitioner is null and void for want of proper approval of the Central Government.
8. A counter-affidavit has also been filed on behalf of the respondent No. 2, the District Magistrate, Gaya, wherein, it has been admitted that the lease in question was renewed in favour of the petitioner. It has been further stated that mining operation was being carried out over the land in question since the year, 1976. There is no denial that the land in question was notified as 'Reserved Forest' area under the provisions of the Forest Act.
9. In this connection, it is necessary to refer relevant provisions of the 1980 Act. This Act was introduced by the Indian Parliament to provide and safeguard the conservation of forest and the matters ancillary thereto. The main object of the Act is to prevent deforestation and to check the environment deterioration. It is well known deforestation of forest is causing serious threat to the existence of human being or any other living substance, it is, therefore, in order to check further deforestation, Central Government introduced 'the Act; which extends to whole of India, except the State of Jammu and Kashmir.
Section 2 of the said Act, in my view, is the only relevant provision which can be taken into consideration for the purposes of the present case. It provides 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:
(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 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, oil-bearing plants, horticultural crops or medicinal 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-posts, fire lines, wireless communications and construction of fencing bridges and culverts, dams, water-holes, trench, marks, boundary marks, pipelines or other like purposes.'
10. That aforesaid provisions casts statutory duty to a State Government to obtain permission of the Central Government for (a) de-reservation of reserved forest (b) for use of such land in non-forest purposes. The main object behind this provision was to prevent de-reservation of reserved forest.
11. Admittedly, in the instant case, no consent as required under Section 2 of the Act was obtained by the State Government from Central Government before renewal of mining lease in favour of the petitioner. In case of Ambica Quarry Works v. State of Gujarat, AIR 1987 SC 1073 it was held that any renewal of mining lease, without prior consent of the Central Government with respect to a reserved forest is in direct conflict to the provision of Section 2 of the Act. If the State Government in its opinion comes to a conclusion that no renewal should be granted, the approval of the Central Government is not required. It was further held the obligation to the society must be predominant over the obligations to the individuals. It would be useful to quote paragraph 19 of the report in extenso (at page 1078):
'In the instant appeals the situation is entirely different. The appellants are asking for a renewal of the quarry leases. It will lead to further deforestation or at least it will not help reclaiming back the areas where deforestations have taken place. In that view of the matter, in the facts and circumstances of the case, in our opinion, the ratio of the said decision cannot be made applicable to support the appellants' demands in these cases because the facts are entirely different here. The primary purpose of the Act which must subserve the interpretation in order to implement the Act is to prevent further deforestation. The Central Government has not granted approval. If the State Government is of the opinion that it is not a case where the State Government should seek approval of the Central Government, the State Government cannot apparently seek such approval in a matter in respect of, in our opinion, which it has come to the conclusion that no renewal should be granted.'
12. In this connection it would be also useful to refer a decision of the Supreme Court in the case of State of Bihar v. Banshi Ram Modi, reported in AIR 1985 SC 814. This was a case in which mining lease was granted prior to coming into force of the Act. The lease had applied to the State Government for permission to win and carry away new mineral from a part of the forest area, which was already utilised for non-forest purpose by carrying out mining operations, the lessee had given undertaking that he would confine his mining only to a portion of the land, over which mining operation had already been carried out and will not sell or remove any standing trees thereon without prior permission in writing of the Central Government. The lease in the said case was with respect to 80 Acres of land. During the tenure of previous lease mining operations were carried out only in an area of 5 Acres, Taking into consideration the aforesaid, the Court took a view that the lease was entitled to carry on the mining operation over the said 5 Acres of land alone for the purpose of removing the felspar and quartz. It was noticed that while mining operation was being carried on, some other minerals were available, therefore, the lessee was given right to collect those materials. Therefore, in this background, the Supreme Court held that in absence of prior approval of the Central Government, such lease cannot be declared null and void. The lessees shall be permitted to carry on operation with respect to an area in the forest, which is broken up or cleared before the commencement of the Act.
13. In the instant case although specific statement has been made in the counter-affidavit, filed on behalf of the Forest Department, that the area has been notified as reserved forest area, no reply contrary to that statement has been made either by the petitioner or by the Department of Mines and| Geology. There is no averment in the writ application that the petitioner would undertake mining operation which would come under the purview of the decision of the Supreme Court in the case of State of Bihar v. Banshi Ram Modi (supra).
14. On behalf of the petitioner reliance has been placed over an unreported decision
of this Court in the case of Baijnath Singh v. State of Bihar (C. W.J.C. No. 1032 of 1992). It is stated that in the said case a direction was issued to the Forest Department to restore the articles seized in favour of the lessee. It was also observed that without complying the relevant provisions respondents had no authority to obstruct the mining operation, conducted by the lessee over the leased land.
Facts of the said case are quite different. More so from the order it is not clear whether the controversies relating to notification by the Forest Department were brought to the notice of the Court. The said direction was rendered in the background of the facts of that case. The ratio of any decision must be understood in the background of the facts of that case.
We have already referred to decisions of the Supreme Court which are relevant for the purpose of this case. In view of Article 141 of the Constitution the ratio decided by the Supreme Court is a law of the land.
15. In absence of any material on the record of this case, it is difficult to hold that as per the ratio laid down in the decision of the Supreme Court in the Case of State of Bihar v. Banshi Ram Modi (supra), the petitioner is entitled to carry on the mining operation over an area of the land, which can be said as broken up land or cleared before the commencement of 'the Act', in the terms of the aforesaid judgment.
16. Accordingly, the Secretary, Department Mines and Geology, is directed to examine whether on the basis of ratio, laid down by the Supreme Court in the Case of State of Bihar v. Banshi Ram Modi (supra), the petitioner can be permitted to carry on the mining operation over any area of the leased land. While deciding the question, he shall give proper opportunity to the petitioner and respondents Nos. 3 and 4. Any such decision must be taken within a period of two months from the date of production/ receipt of a copy of this order.
17. While remitting back the case for reconsideration, it would be useful to observe that in future the authorities while granting
mining leases would examine whether such grant may not lead to further deforestation of the reserved forest. The primary purpose of the Act, which must subserve the interpretation of the order to implement the Act in order to prevent deforestation. All the formalities as required under the Act should be complied with before a lease is granted or renewed. Otherwise their action will lead to unnecessary harassment to the parties and litigations.
18. The other prayer is for release of the commodities, seized by the officials of the Forest Department. It has been noticed that no notice or opportunity was given to the petitioner before seizure of the commodities. In the aforesaid background as also having considered the peculiar facts of this case, we direct that entire seized materials shall be released by respondents Nos. 3 and 4 to the petitioner. However, pending decision before the Secretary, Department of Mining and Geology, the petitioner shall not be allowed to operate the mines.
19. With the aforesaid findings and observations, this writ application is disposed of. But in the circumstances of the case, there will be no order as to costs.
20. Let a copy of the order be given to the learned counsel for the Department of Mines for necessary communication to all the concerned authorities.