T.D. Sugla, J.
1. This petition under Article 226 of the Constitution of India is by and on behalf of five voluntary organizations of Pune and the two Secretaries of petitioner Nos. 1 and 2. The petitioner organizations appear to be interested inter alia in the protection and preservation of ecological balance and proper environment in and around Pune City. Through this petition they have challenged and prayed for quashing of Government Notification Nos. 1879/2966/UD/7 dated April 29,1981 and the Government order/direction/letter No. TPS/1886/916/CR/147/UD/7 dated October 5, 1987 mainly on the grounds, that the aforesaid notification and order/direction/letter :
(i) were in violation of the Maharashtra Regional and Town Planning Act, 1966 (For short M.R.T.P. Act)
(ii) were in violation of Forest (Conservation) Act, 1980 ;
(iii) were issued without following the procedure laid down in the two Acts ; and
(iv) were the result of arbitrary exercise of powers vested in the Government in this behalf and thus violated Article 48A of the Constitution of India.
In response to a query from the Bench, Shri Shivade, the learned Counsel for the petitioners said that the aforesaid notification and order/direction/letter were likely and adversely affecting ecological balance and proper environment conducive to the proper growth of te Pune City and its inhabitants.
2. Briefly stated the relevant facts are that the suit land is about 1/4th portion of the land under Survey No. 81, Bhamburda, Pune. Its situation is almost at the top of a hill popularly known as Hanuman Hill. The land under Survey No. 81 and perhaps the land on the entire hill is shown in 'No Development Zone' in the Development Plan of 1966 and was declared to be 'Reserved Forest' since 1879. The entire land under Survey No. 81 admeasuring 3.26 hectres was leased out to the Respondent No. 3 under an agreement dated October 7, 1975 (Exhibit A, page 32 of the paper book) at a nominal lease rent for 50 years inter alia for planting trees and for constructing a pagoda for the use of visitors. Respondent No. 3 is a society registered under the Societies Registration Act mainly for the purpose of carrying on educational and cultural activities. Original Development plan for Pune Metropolitan Region sanctioned by the Government in 1976 also provided that Hills and Hill slopes should be preserved or afforestation and creation of recreational amenities for the Pune City.
Some times thereafter i.e. in the year 1976, Respondent No. 3 requested the State Government to take the suit land out of 'Reserved Forest' and allow it to construct a building for a Law College. A similar request was again made by Respondent No. 3 by its letter dated December 29, 1977. On March 8, 1978 the State Government issued a letter to the, Pune Municipal Corporation directing it to initiate a proposal for minor modification of the development plan under section 37 of the M.R.T.P. Act for converting the suit land from 'No Development Zone' to 'Public and Semi Public Zone'. On January 19, 1979 the State Government issued a notification under section 27 of the Indian Forest Act declaring that the suit land had ceased to be reserved forest from the date of the publication of the said notification. On August 9, 1979 the Pune Municipal Corporation issued a notification under section 37 of the M.R.T.P. Act indicating its intention of converting the land under Survey No. 81, Bhamburda from hilly lands into public and semi public zone. This notification was published in the Gazette on August 16, 1979 and on October 3, 1979 the Pune Municipal Corporation requested the State Government for sanction of modification of the use of the land under Survey No. 81 from 'No Development Zone' to 'Public and Semi Public Zone'. Sanction was accorded by the State Government on April 29,1981 and notification in this regard was published in the Official Gazette on June 18, 1981. In the meantime, first in the form of an Ordinance and thereafter in the form of regular Act now 'Forest (Conservation) Act, 1980 was brought on the Statute Book with effect from December 27, 1980. However despite the aforesaid notification the proposal to allow the Respondent No. 3 to construct any building on the suit land was stayed or not accepted as such by the State Government.
By a notification dated September 17, 1982 the Government of Maharashtra under powers vested in it under the M.R.T.P. Act appointed the Director of Planning, Maharashtra State, Pune to be a Special Officer and directed him to take action for publication of notice under the said Act and to submit a draft development plan for Pune City to the Government for sanction under section 31 in accordance with the procedure laid down in the M.R.T.P. Act. The draft development plan was published on September 18, 1982 and the said officer after considering and taking into account the suggestions and objections received from the public submitted the modified draft development plan for Pune City for the sanction of the State Government under section 31 of the M.R.T.P. Act on April 27, 1984. There is no dispute that the suit land was shown both in the original draft development plan and the modified draft development plan in public and semi-public zone and that the petitioners had made their representations before the said special officer which were considered by him while submitting the modified draft development plan for sanction to the State Government. The draft modified development plan was sanctioned by the Government under section 31 of the M.R.T.P. Act on January 5, 1987 and the final development plan for Pune City thus came into force with effect from February 6, 1987.
In the meantime, Respondent No. 3 received certain belongings of Dr. Babasaheb Ambedkar on January 22, 1982. It also got an allotment of one acre of land of final plot No. 1778 from the Education Department, Government of Maharashtra on which it constructed buildings for the proposed Law College during the period from 1983 to 1987. On May 31, 1985 the Revenue and Forest Department of State Government sanctioned the construction of building on 20% of the suit land on the conditions that the suit land was covered by the boundary wall and that the balance of the land was developed into a garden and/or afforestation. By its letter dated September 20, 1985 (page 227) the Revenue and Forest Department, it appears, sent a detailed reply to the Chief Forest Conservator clarifying certain queries raised by him. In particular he was informed that the suit land was disforested by the State Government by a notification long back, that the same was, therefore, to be handed over to the Revenue Department, that out of the land under Survey No. 81 (3.26 hectors) granted on lease to the Respondent No. 3 in the year 1975, 0.60 hector had already been aforestated by the respondent No. 3. For remaining land where a pagoda was constructed and the walking passage to the pagoda which the Respondent No. 3 wanted for use a proposal to use the area for non forest purposes be sent for obtaining permission from the Central Government in accordance with the Forest (Conservation) Act, 1980. Possession of the suit land was handed over to the Respondent No. 3 on December 6, 1985 after the receipt of occupancy price.
3. The petitioner's case, admittedly, is that they are voluntary organisations interested in the protection and preservation of ecological balance, environment and laws affecting the development of Pune City. They have challenged and requested for quashing the State Government's impugned three orders/letters/directions mentioned in the first paragraph of the judgment. For proper appreciation of rival contentions it is necessary to bear in mind the importance and need of protection of ecological balance and environment, the evil consequences that would follow if proper care is not taken to preserve and protect them, the duty of the State and the citizen in this behalf and the parameters for entertaining such petitions.
Regarding the need for protection of environment we cannot do better than to quote what the Supreme Court observed in the case of.
(i) M.C. Mehta v. Union of India and others : [1988]1SCR279 as under :-
'.............. It is necessary to state a few words about the importance and need for protecting our environment. Article 48-A of the Constitution provides that the State shall endeavour to protect and improve the environment and safeguard the forests and wild life of the country. Article 51-A of the Constitution imposes as one of the fundamental duties on every citizen the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. The proclamation adopted by the United Nations Conference on the Human Environment which took place at Stockholm from 5th to 16th June 1972 and in which the Indian delegation led by the Prime Minister of India took a leading role......................'
(ii) It was observed by the Supreme Court in the case of Rural Litigation and Entitlement v. State of Uttar Pradesh : [1987]1SCR641 as under :
'Governments both at the Centre and in the State must realize and remain cognizant of the fact that the stake involved in the matter is large and far reaching. The evil consequences would last long. Once that unwanted situation sets in, amends or repairs would not be possible. The greenery of India as some doubt, may perish and the Thar desert may expand its limits.'
(iii) In Haji T.M. Hassan Rawther v. Kerala Financial Corporation : [1988]1SCR1079 it was observed in paragraph 14 :
'........... The State and the Public Authorities should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without a version or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism ............'
(iv) In the case of Shri Sachidanand Pandey and another v. The State of West Bengal and others : [1987]2SCR223 , on the other hand, the Supreme Court though recognised the need to maintain and preserve the ecological balance and environment, it was considered to define parameters for entertaining writ petitions filed by voluntary organizations and the need for restraint. It was observed in paragraph 4 of the judgment :
'......... Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides. On the other, hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public. Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Article 48-A of the Constitution. Directive principle which enjoins that 'The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of country, 'and to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.' When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy-making authority. The least that the Court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. In appropriate cases, the Court may go further, but how much further must depend on the circumstances of the case. The Court may always give necessary directions. However, the Court will not attempt to nicely balance relevant considerations. When the question involves the nice balancing of relevant considerations, the Court may feel justified in resigning itself to acceptance of the decision of the concerned authority ..........'
Paragraph 36 of the judgment reads thus :
'.................. But one basic principle which must guide the Court in arriving its determination on this question is that there is always a presumption that the Governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. The burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest because, as we said above, there are a large number of policy considerations which must necessarily weigh with the Government in taking action and therefore the Court would not strike down Governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or and not in public interest. (under-lining by us). But where it is so satisfied, it would be the plainest duty of the Court under the Constitution to invalidate the Governmental action.'
Again in paragraph 58 of the judgment it was observed by Khalid, J., in his concurring judgment :
'.............. Public interest litigation has now come to stay. But one is led to think that it poses a threat to courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to out line the correct parameters for entertainment of such petitions. If the courts do not restrict the free flow of such cases in the name of Public Interest Litigation, the traditional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions.'
The Honourable Judge further observed that it is only where the Governmental action and its violation is such as shock the judicial conscience that the courts should interfere and not otherwise.
4. Now, coming to the merits of the case we would like to first consider whether the action of the State Government in this case was likely to adversely affect the ecological balance and environment in and around Pune City and if so what is the extent thereof.
For this purpose one fact that requires to be borne in mind is that Bhamburda i.e. Hanuman Hill constitutes a very small part of the area covered by the development plan of Pune City. The total area of Hanuman Hill itself is about 100 acres. As against that the area of the land under Survey No. 81 is about 8 acres and that of the suit land which comprises of a portion of land under Survey No. 81 only is about 1/4th i.e. about 2 acres. Out of the suit land admeasuring about 2 acres, building permission has been granted in regard to 505 sq. mts. only and that too for a library hall and two other small buildings for ancillary purposes as a commemoration to Dr. Babasaheb Ambedkar. The remaining area of the suit land will have to be developed into a garden.
The second fact that requires to be borne in mind is that the State Government had permitted the change of user in respect of almost the same area of land out of the land under the same Survey Number on Hanuman Hill in favour of Wadar Society. However, for reasons best known to the petitioners, they have not challenged the change of user in their case. Ordinarily, if the petitioners were really interested in the preservation of ecological balance and proper environment, they would have challenged the change of user of land in the other case also.
Allegations that the respondent No. 3 had put up boards and/or given advertisements contrary to the Government sanction and/or even before any sanction was granted are, to our mind, of not much consequences, the fact is that what is challenged before this Court is certain State Government actions/decisions and not what the Society did or omitted to do. All the same the apprehension in the mind of the petitioners that if the change of user of the suit land in favour of respondent No. 3 was approved by this Court, a number of other persons would come up with similar requests and the State Government in that event might find it difficult to refuse the change of user in their favour also would require to be borne in mind inasmuch as if such a situation is allowed to crop the ecological balance and environment assuming it is not likely to be adversely affected by this solitary action on the part of the State Government, it would certainly be affected then. At the same time the pertinent question would continue to remain as to whether and if so to what extent the change of user of the suit land allowed by the State Government in this case, was to adversely affect the ecological balance and environment of Pune City.
Respondent No. 3 in their affidavit made a categorical statement that Hanuman Hill was barren, full of stones and was not covered by any trees whatsoever. This fact was not denied or disputed by the petitioners. The fact that originally in the year 1975 the land under Survey No. 81 was leased out to the respondent No. 3 for a period of 50 years at nominal lease rent for the purpose of planting trees thereon also supports the claim of the respondents. What is required to be considered, therefore, is whether in the facts and circumstances of this case permitting the change of user in respect of the suit land on the above said terms and conditions was their in reality and materially to affect the ecological balance and environment of Pune City adversely. The cases of the petitioners has been that the suit land fell within 'reserved forest'. It was shown in 'No Development Zone' in the Regional Development Plan. Even though by a subsequent notification in the year 1979 it was disforested i.e. it was taken out of 'Reserved forest' the suit land continued to be a forest land. In our view, however, this aspect will be relevant while considering the legality of the orders and not while ascertaining whether the change of user allowed in this case materially and adversely affected the ecological balance and environment of Pune City.
It is pertinent to mention that area of 505 sq. mts. in respect of which building permission is granted is any insignificant portion of the area of the Hanuman Hill. It is all the more so in the context of total area covered by the development plan for Pune City. Besides when the purpose for which the building permission is granted and one of the conditions on which it is granted, namely that the remaining portion of the suit land will have to be developed by respondent No. 3 into a garden are borne in mind, it is not at all possible to accept the submission on behalf of the petitioners that the change of user permitted in this case would really affect the ecological balance or environment of the Pune City. It may be that other persons may apply to the Government for change of user and Government may find it difficult to refuse permission in their cases if the permission granted herein by the State Government is not interfered with by this Court. However, we do not think that we should come to a different conclusion merely because, there is some such possibility. As and when such a situation crops up and it is found that the ecological balance and environment was likely to be adversely affected, this Court will not hesitate to interfere. However, as stated above, in this case, there is no scope for such an apprehension, particularly as the petitioners have themselves not challenged the State Government's action/order regarding the permission of change of user to the other society in respect of a portion of the same Survey Number.
In its decision in the case of Calcutta Youth Front v. State of West Bengal : [1987]3SCR987 , the Supreme Court had an occasion to consider such a question. Referring to the facts in that case it was held that by granting the licence there was no possibility of disturbing the ecological balance. On the other hand, the present condition of the park would improve thus adding greenery to the thickly populated area wherein the park is situated. The construction of basement market would be within the meaning of the expression 'development work' in section 353(2) read with the Explanation thereto. In our judgment, the facts obtaining in the case before us are similar. The suit land is a barren land without any afforestation. Out of the suit land admeasuring about 2 acres building permission has been granted only with regard to 505 sq. mts. The rest of the land is to be developed into a garden. Accordingly we are in agreement with the respondents that there was no possibility of disturbing the ecological balance by granting such a permission.
5. Regarding the allegation of illegality and/or irregularity in the matter of passing the impugned orders, the first pertinent question is whether the change of user permitted in respect of the suit land is or amounts to a minor modification within the meaning of section 37 of the M.R.T.P. Act. In case, it amounts to a minor modification, the next pertinent question would be whether the procedure required to be followed in that behalf as laid down in section 37 of the Act was followed. Placing reliance on this Court's judgment dated October 9, 1984 in the case of Colaba Cuffe Parade Residents Association and others v. State of Maharashtra and others, in O.O.C.J. Writ Petition No. 2032 of 1983, Shri Shrivade for the petitioners submitted that change of user was always to be construed as a substantial modification. In our opinion, the aforesaid judgment is not applicable in this case. The facts in that case are stated by the learned Single Judge in great detail in paragraph 2 of the judgment. In that case the State Government had in the first instance taken a decision to construct a building for Ministers of State on plot No. 148 which fell within the area reserved for garden in the draft development plan. Thereafter it forwarded the building plan to the Municipal Corporation in July 1980 for 'No objection' and obtained 'No objection' in November 1980. B.M.R.D.A. and the State Urban Development Ministry advised the State Government not to proceed with the construction work as the plot was a part of the area reserved for garden. In fact, on the advice of the Urban Development Authority, the Municipal Corporation revoked the 'No objection certificate' earlier given on November 8, 1982. Despite all this, the State Government took a decision to continue construction work on January 13, 1983. In the draft development plan prepared by the planning authority on May 26, 1983 also the area including plot No. 148 was reserved for garden. No doubt, the State Government had filed its objections on July 21, 1983 but even before the objections were considered by the planning authority, the State Government directed the Municipal Corporation on July, 22, 1983 to revoke the revocation of 'No objection certificate' which the Corporation did on August, 19, 1983 and started construction work. It is, thus, evident that in that case the State Government had not followed even the procedure laid down for minor modification of the development plan and it was in that context that the learned Judge held in paragraph 5 of the judgment that change of user of plot of land was a modification of substantial nature and that the same could not have been done without inviting objections from public and considering them. The observation cannot certainly be construed as laying down the proposition that such a change could not be carried out under section 37 of the M.R.T.P. Act.
In the present case the facts are materially different. While considering whether the change of user of the suit land at all affected the ecological balance and environment of Pune City adversely, we have already held that the building permission given in this case was for total area of 505 sq. mts. only which was a small portion of the suit land and still smaller and insignificant portion of the area of the entire Hanuman Hill and the area covered by the Development Plan. For this and other circumstances such as the suit land was a barren land and the other portion of the suit land was to be developed into a garden, we are inclined to hold that the change of user of the suit land in this case amounted to a minor modification. The modification was not of such nature as would change or was likely to change the character of the development plant itself. Therefore, what requires to be examined is whether procedure as laid down under section 37 of the M.R.T.P. Act was followed. Under this section the minor modification can be proposed by the planning authority on its own as well as on direction from the State Government. In this case, the proposal was initiated by the planning authority on directions from the State Government on March 8, 1978. Necessary resolution was passed by the planning authority, the Pune Municipal Corporation, on May 4, 1979 and notification was published in the Gazette of August, 16, 1979 as required under section 37 of the M.R.T.P. Act inviting objections and suggestions from the public. It was contended by Shri Shivade that individual notices were not served on the petitioners and they have thus, no opportunity to file their objections and/or suggestions. He also invited our attention to the fact that the notification in this behalf was also published in two local newspapers 'Prabhat' and 'Sandhya' on October 16, 1979 and that the planning authority sent the proposal for minor modification for the final sanction of the State Government on October 28, 1979 i.e., even before the expiry of one month's period from the publication of notification in the said newspapers. He, thus, stated that proper notices had not been given to the public as required under section 37(1) of the M.R.T.P. Act. In our view, both the submissions made by Shri Shivade deserve to be rejected. So far as the general public is concerned publication of notification in the Official Gazette inviting objections and suggestions is enough. Individual notices are required to be served on the persons actually and factually affected by the proposed modification. The expression used in this behalf in the section is' and shall also serve notice on all persons affected by the proposed modification'. As regards the publication of notification in the two newspapers and the submission of the proposal by the planning authority to the State Government within a week thereof, it is not possible to accept Shri Shivade's argument in the absence of evidence. In the absence of clear information from the newspapers it is difficult to say what, it at all, was, in fact, published in the two newspapers as alleged.
The minor modification, it may be stated, was finally sanctioned by the State Government on April 29, 1981. It was published in the Gazette on June 16, 1981. Thus, we do not find anything illegal or irregular about the procedure followed in this behalf and naturally, therefore, there is no question of violation of the provision of the M.R.T.P. Act as alleged.
6. Moreover, the question whether the modification of the development plan was minor and/or whether the modification was done in accordance with the law has become of academic interest in this case. As stated earlier after the modification of the plan was sanctioned and was notified by the State Government in the Gazette on June 18, 1981, the State Government on September 17, 1982 appointed the Director of Town Planning Maharashtra State, Pune to be a Special Officer and directed him to take action for publication of the requisite notice under the M.R.T.P. Act and to submit a new draft development plan to the Government for sanction under section 31 after going through the procedure laid down in sections 28 and 29 of the Act. On April 29, 1994 after considering the suggestions and objections received by him from public the said officer modified the draft development plan under section 28 of the Act and submitted the same to the State Government for sanction under section 31 of the Act. In the new draft development plan, the suit land was shown in public/semi public zone and the petitioners had full opportunity of filing their objections and of giving suggestions. As a fact also, they had filed their objections and made suggestions which were considered by the said Special Officer before submitting the modified draft development plan for sanction to the State Government under section 31 of the Act. Shri Shivade had raised an objection that the State Government had not given the petitioners further opportunity of filing objections or of giving suggestions or of hearing. This statement was not disputed by the respondents. It was, however, pointed out and correctly that further opportunity by the State Government was contemplated only where the modification proposed to be made by the State Government was of substantial nature. In this case, there is no material to suggest that the State Government had before sanctioning the draft development plan submitted to it by the said officer had proposed any modification and such a modification was of a substantial nature. The new development plan was sanctioned by the State Government on January 5, 1987 which became effective on and from February 1987. In the circumstances, assuming some irregularity or illegality was committed by the State Government in modifying the old development plan treating the modification as a minor modification under section 37 of the M.R.T.P. Act, the objections there against would be of no consequence as in the new development plan finally sanctioned also the suit land is shown for public/semi public zone. In this context it has to be borne in mind that the State Government granted building permission to the Respondent No. 3 for constructing it in an area of 505 sq. mts. on the suit land with a condition to develop garden on the remaining portion of the land vide its letter dated October 5, 1987 (Exh. D page 37).
7. Another argument advanced by Shri Shivade for the petitioner was that after the passing of the Forest (Conservation) Act, 1980, no forest land could be allowed to be used for non-forest purposes without the prior permission of the Central Government. In this case, prior permission of the Central Government was admittedly not obtained. It was stated that the effect of the notification issued under section 27 of the Forest Act on January 19, 1979 declaring that the suit land was not to be treated as a reserved forest was that the suit land was not, reserved forest, thereafter. However, it continued to be a forest land so long as it continued to be a forest land, it could not have been allowed to be used for non-forest purposes by the State Government without prior sanction of the Central Government. The case of the respondents, on the other hand, was that the suit land was not a forest land and therefore the provisions of section 2(ii) of the Forest (Conservation) Act, 1980 were not applicable.
The expression 'forest land' had not been defined under the Indian Forest Act, 1927 or under the Forest (Conservation) Act, 1980. Section 3 of the Indian Forest Act, however, gives some clue to its meaning. Section 3 empowers the State Government to declare any forest-land or waste-land belonging to the State as a reserved forest. This means that the 'reserved forest' can comprise of forest -land as well as waste-land. In turn it means that on dereservation of 'reserved forest' the land would be forest land or waste-land depending upon its nature at the time when it was declared as reserved forest. Moreover, the word 'forest' came up for consideration before the Full Bench of this Court in the case of Janu Chandra Waghmare v. The State of Maharashtra 79 Bom.L.R. 499. One of the question involved in that case was whether the word forest would include 'forest produce'. For that purpose it became necessary to ascertain the meaning of the expression 'forest'. The Court held at page 521 :
'...In other words, even the dictionary meaning clearly shows that 'forest' means an extensive tract of land together with the trees and undergrowth which covers such tract and also includes pastures which intermingle with such tract. That a forest includes 'trees' becomes very clear from the second part of the applicable meaning where it is stated : 'forest' means 'also the trees collectively of a forest'. In our view, therefore, even the dictionary meaning of the expression 'forest' make the position clear that 'forest' means not only an extensive tract of land but includes the trees, undergrowth and pastures grown or found lying on such tract of land. .........'
However, relying on the Supreme Court decision in the case of Ambica Quarry Works v. State of Gujarat and others : [1987]1SCR562 , Shri Shivade contended that the meaning of expression 'forest' in that decision need not be adopted in the present case as the ratio of any decision must be understood in the background of the facts in that case, the case being an authority for what it actually decides and not what logically follows from it. He also relied on this very decision and the decision of the Allahabad High Court in the case of M/s. Yashwant Stone Works v. State of Uttar Pradesh and others : AIR1988All121 and the Explanation to sub-section (ii) of section 2 of the Forest (Conservation) Act, 1980 to emphasise the position in law namely, that when a forest land was to be put to non-forest use, prior approval of the Central Government was necessary.
On considering the facts pertaining to the suit land it requires to be noted that their are categorical averments in the affidavit filed on behalf of respondent No. 3 to the effect that the land Survey No. 81 was rocky and barren. Not only that no trees existed thereon, it was also difficult to do so. There is no specific denial of the averments on behalf of the petitioners. On the other hand, the fact that originally the land under Survey No. 81 was leased out to the respondent No. 3 for 50 years at a nominal rent for the purpose of planting trees, vindicates the stand taken by the respondent No. 3 that the land under Survey No. 81 was not a forest land as understood in common parlance. Moreover, Explanation to section 2(ii) of the Forest (Conservation) Act, 1980, to our mind, supports the case of the respondent No. 3 rather than that of the petitioners. The Explanation reads thus :
'Explanation:---For the purposes of this section 'non-forest purpose means breaking up or clearing of any forest land or portion thereof for any purpose other than reforestation.'
While section 2 undoubtedly requires prior approval of the Central Government for the purposes mentioned in sub-sections (i) and (ii) the expression 'non-forest purpose' finds place in sub-section (ii) and this expression has been defined by the Explanation thereto. Explanation, in our opinion, defines 'non forest purpose' as meaning (i) breaking up or clearing of any forest land or portion thereof and (ii) for any purpose other than reforestation. The Explanation has two limbs. The first limb is 'breaking up or clearing of any forest land or portion thereof '. The other limb is that the above act should be for any purpose other than re-afforestation'. In other words, both the limbs must be satisfied if it is to be held non-forest purpose. We shall first try to understand the meaning and scope of second limb as in our view the meaning of second limb will also throw some light as to the meaning of first limb. In its wisdom the legislature has used the word 'reforestation' in the second limb and not afforestation. our mind, this is not without significance. Both the words have their origin in the word 'afforest' which according to the Straud's Judicial dictionary means to turn ground into forest. The meaning of this word, according to Shorter Oxford English Dictionary is to convert into forest. The word 'Reforest' would naturally mean to afforest again. Consequently, 'reforestation' would mean afforesting a land again which was cleared of afforestation once existed. Considered in the light of meaning of second limb of the Explanation as understood by us, the expression 'forest land' used in the first limb would mean afforested land. In the instant case the suit land was never afforested. In fact, it was leased out to respondent No. 3, in the year 1975 for afforestation as distinct from reforestation. Section 2(ii) of the Forest (Conservation) Act, 1980 has therefore no application in the facts of the case. The name of the Act, its preamble and the statement of objects and reasons support our above view inasmuch as all these merely contemplate conservation, preservation and/or protection of forest. The name of the Act is '(The) Forest (Conservation) Act, 1980'. The preamble reads thus :
'An Act to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto.'
Whereas the Statement of Objects and Reasons reads thus :
'Deforestation causes ecological imbalance and leads to environmental deterioration. Deforestation had been taking place on a large scale in the country and it had caused widespread concern.
2. With a view to checking further deforestation, the President promulgated on the 25th October, 1980, the Forest (Conservation. Ordinance, 1980. The Ordinance made the proper approval of the Central Government necessary for dereservation of reserved forests and for use of forests land for non-forest purposes. The Ordinance also provided for the constitution of an advisory committee to advise the Central Government with regard to grant of such approval.
3. ..........................................................'
Banshi Ram Modi
'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 decisions, therefore, indicate that where a forest area had been broken up or cleared before the commencement of the Act, mining operations therein did not require prior approval of the Central Government. In other words, what is necessary for attracting the provisions of section 2(ii) of the aforesaid Act is that breaking up or clearing of the forest should be for the first time after the commencement of that Act. As a natural corollary where the land is a waste-land without any afforestation, though initially declared as 'reserved forest' but notified as not a 'reserved forest' before the commencement of the Act, section 2(ii) would not attract. In fact, in paragraph 19 of the judgment. Their Lordships have categorically stated that, in the instant appeals the situation was entirely different. The appellants were asking for a renewal of the quarry leases, which would lead to further deforestation one at least it would not help reclaiming back the areas where deforestation had taken place. The situation in the present case as stated by us earlier is entirely different. The suit land had been barren and rocky and no plantation existed thereon. The facts in the Allahabad High Court case were similar to those in the Supreme Court case referred to above. Therefore, that decision is also distinguishable. In the above view of the matter we are inclined to hold that the suit land was not a forest land covered by the provisions of section 2(ii) read with Explanation thereto of the Forest (Conservation) Act, 1980, and therefore, prior approval of the Central Government was not necessary.
8. An attempt was also made by Shri Shivade to show that the State Government's action was mala fide and arbitrary. For this purpose he high lighted the facts namely, the State Government had leased the entire land under Survey No. 81 in favour of respondent No. 3 in October 1975 for the purpose of forestation. Instead of doing any thing of the sort, respondent No. 3 approached the State Government immediately thereafter i.e., in the year 1976 itself for disforesting the suit land being part of the land under Survey No. 81 for the purpose of allowing it to construct a building for Law College. On March 8, 1978 the State Government directed the Pune Municipal Corporation to initiate a proposal for minor modification of the development plan under section 37 of the Act for the purpose of converting the suit land from 'No development zone' to public/semi public zone' and issued a notification on January 19, 1979 for its disforestation under section 27 of the Indian Forest Act, 1927. All this, according to Shri Shivade, was done so mechanically and with efficiency, that inference of mala fide, arbitrariness and non-application of mind would be fully justified. Shri Shivade also pointed out to the fact that despite modification of the development plan, the Government stayed the proposal of respondent No. 3 for construction of a building for Law College. The reasons were within the peculiar knowledge of the State Government. However, the State Government has not yet come out with those reasons.
In our opinion, however, from the facts stated above, the conclusion cannot be arrived at that the action of the State Government in this regard was mala fide, arbitrary and/or without application of mind. It is to be borne in mind that the respondent No. 3 is a society known for its educational and cultural activities. It is not correct to say that it had no intention of foresting the land under Survey No. 81 leased out to it. It is on record that 0. 60 hector of land under Survey No. 81 was, as a matter of fact, afforested by the respondent No. 3. Request for disforestation and permission to construct a building for Law College was only for about th of the total area of land under Survey No. 81. Request was first made in the year 1976. It was repeated in December, 1977. The State Government directed the Pune Municipal Corporation to initiate proposal for minor modification of the plan on March 8, 1978 and the notification disforesting the suit land was issued on January 9, 1979. All this has taken about 3 years. Therefore, it is not possible to accept that the State Government acted mechanically and therefore its action must be treated as mala fide and/or arbitrary. No doubt, the reason why the permission for construction was stayed is not brought on record. However this fact supports the case of the respondent No. 3 rather than that of the petitioners. It only shows that so long as there was some kind of controversy, the State Government did not act in hurry and granted final permission to construct after a lot of serious consideration.
According to Shri Shivade, the fact that the State Government had directed the Chief Forest Conservator by its letter dated September 20, 1985 Annexure 4 to the affidavit of respondent No. 3) to send a proposal for obtaining permission of the Central Government in accordance with the Forest (Conservation) Act, 1980 in respect of the remaining portion of the land under Survey No. 81 showed that despite notification disforesting the suit land in 1979, the land under Survey No. 81 continued to be a forest land and the same could not have been allowed for non forest purposes without prior permission of the Central Government. This argument of Shri Shivade is also fallacious. Mere fact that the State Government wrote to the Chief Forest Conservator does not take his case any where in the first place, the letter had itself showed that the Revenue and Forest Department constitute one Department of the State Government. In the second place the letter categorically states that out of the land Survey No. 81 admeasuring 3.06 hector 0.60 hectors was already afforested for 0.84 hector notification for disforestation was issued long back. While the Chief Forest Conservator was asked to hand over 0.84 hector to the Revenue Department to be handed over to respondent No. 3, he was asked to send a proposal for obtaining the Central Government's permission regarding the land where Pagoda stands and the passage to the Pagoda which Institute wanted to use. The reason for asking the Chief Forest Conservator for sending a proposal for obtaining Central Government's permission is very simple namely, this part of the land was neither afforested nor disforested and therefore continued to be a reserved forest for which prior permission was obviously necessary.
Shri Shivade also stated that respondent No. 3 was not sincere. In one breath it was asserted that the suit land was rocky and barren and not capable of afforestation. In the same breath the condition of developing it into a garden was accepted. Here again the argument advanced by Shri Shivade suffers from want of proper appreciation of the fact that the concept of the afforestation which means converting of land into forest is entirely different from the concept of developing a land into a garden. There is, thus, no contradiction justifying the inference of want of sincerity on the part of the respondent No. 3.
9. Before concluding we may refer to two other decision of the Supreme Court which were relied upon by the parties. The first decision is : [1987]1SCR641 (supra). In that case, the importance of ecological balance in the context of Article 51-A(g) of the Constitution of India was high-lighted. It was also considered necessary to strike a balance between the preservation of the ecological balance and the exploitation of the lime stone deposits for industrial use which was for the experts to examine. It would then be for the State Government to take a policy decision on the basis of appropriate expert's advice. The other decision is in the case of Fasih Choudhary v. Director General, Doordarshan and others : AIR1989SC157 . In this case the Supreme Court held that the public authorities like the Doordarshan should act fairly and their action should be legitimate and fair and transaction should be without any aversion, malice or affection. Nothing should be done which gives the impression of favouritism or nepotism. These are well known propositions not disputed by the parties before us.
Having regard to the above discussion, we hold that the petition has no substance.
Rule is accordingly discharged.
No order as to costs.