LAWS(SC)-2008-8-99

A CHOWGULE AND CO LTD Vs. GOA FOUNDATION

Decided On August 18, 2008
A.CHOWGULE AND CO.LTD. Appellant
V/S
GOA FOUNDATION Respondents

JUDGEMENT

(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 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 beneficiation 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 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 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 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 beneficiation 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 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 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 and 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 qud non for the execution of the lease deed dated 1st of November 1989 and finally concluded as under: "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 seen 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 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.

(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 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 Patrem 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 and Ors.) and AIR 1990 Andhra Pradesh 257 (Hyderabad Abrasives and Minerals, Hyderabad vs. The Govt. of A.P. Forest Department, Hyderabad and Anr. in Supplort of his case.