CITATION

MANU/KA/3488/2013

FACTS

The petitioners are holders of quarrying lease and engaged in quarrying building stone in the Davangere District. That an extent of 1,059.14 acres of that land was transferred by the Tahsildar, Harappanahalli to the Forest Department. But, the office of the Tahsildar, Harappanahalli, directed the Village Accountant and the Revenue Inspector to change the mutation in respect of the aforesaid extent in the name of Government-Revenue Department Subsequently, the Range Forest Officer, Harappanahalli, certified the land as belonging to Revenue Department.

ISSUE

1. Whether the Range Forest Officer was justified in issuing the impugned notices to the petitioners?
2. Whether the grant of quarrying lease to the petitioners was in accordance with law?

PETITIONER’S CONTENTION

It was contended that the provisions of the Central Act would not apply as a prior permission under that Act is required only when forest land is sought to be utilised for non-forest purpose. But in the instant case, since no steps have been taken to declare the lands in question as a reserved forest by issuance of a notification under Section 17 of the Act for over two decades; the land does not become a reserved forest and much less is it a forest; in fact, the lands in question continue to be revenue lands as per the revenue records.

It was also contended that the impugned notices only state that the lands in question is constituted to be a reserved forest under Section 4 of the Act and therefore, quarrying operations cannot be continued. The notices do not refer to any permission to be obtained under the Central Act or that any prior permission of the Central Government was required under Section 2 of the said Act before granting of the quarrying lease. Therefore, such a contention cannot be raised by the respondents in the writ petition for the first time.

DEFENDANT’S CONTENTION

The defendant’s defended the impugned notices by stating that when the notification has been issued under Section 4 of the Act, constituting any land into a reserved forest, there is a bar for accrual of forest rights except with the previous sanction of the State Government. That there is no time limit fixed for issuance of a declaration under Section 17 of the Act and even in the absence of any steps pursuant to the notification issued under Section 4 being taken by the State Government, no non-forest activity can take place in the lands so constituted as a reserved forest under Section 4 of the Act. That position would be squarely applicable to the lands in question.

In the present case, the State could not have granted leases subsequent to the issuance of Section 4 notification in favour of the petitioners without obtaining the sanction of the State Government. It’s also contended that the lands in question are constituted as reserved forest and therefore, fell within the nomenclature of “forest” and hence, no non-forest activity can take place in a forest land without obtaining clearance under Forest Act.

JUDGEMENT

Once any land is notified to constitute as a reserved forest, various steps are contemplated under the Act before a declaration can be issued under Section 17 of the Act declaring that the land is reserved forest.

However, when a notification is issued under Section 4 declaring the decision to constitute any land as Reserved Forest, by virtue of Section 6 of the Act, no contract can be entered into in respect of that land on behalf of the Government with any person except with the previous sanction of the State Government and no right can be acquired in or around or over the land comprised in the notification except by succession or under the grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such right or power to create such right, was vested when the notification was issued. No doubt, under Section 6, the State can enter into a contract with any person in respect of the lands notified under Section 4 provided the provisions of that section are fully complied with.

No State Government or any other authority can make an order directing that any forest land or any portion thereof be ceased to be reserved; that any forest land or any portion thereof may be used for any non-forest purposes; 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 organization not owned, managed or controlled by the Government; 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 re-afforestation.

It’s very clear that quarrying activity is non-forest activity. Section 4 of the Act empowers the State Government to declare the decision to constitute any land as a reserved forest, but would the declaration of any land as a reserved forest per se be sufficient to extend the nomenclature of “forest” to such a land for the purpose of the Central Act, so as to require Forest clearance, is the question.

By virtue of Section 2 of the Forest Act, prior approval of the Central Government is mandatory as well as a pre-condition for the grant of lease of forest lands for non-forest purposes including a quarrying lease. The expression “prior approval” would mean that before a grant of lease is made, there should be a previous approval of the Central Government. It cannot be construed to mean that, after the grant of lease, the approval of the Central Government would be obtained prior to commencement of quarrying operations.

The State Government had issued the notification under Section 4 of the Act declaring its decision to constitute, inter alia, the lands in question as reserved forest. It was held by the court that the mere publication of such a notification would not constitute any land as a “reserved forest”. Subsequent sections enable the citizens to claim rights in the reserved forest and also empower the State to take various steps before constituting the land as a reserved forest. The mere issuance of a notification under Section 4 of the Act is sufficient to constitute the land comprised in it as “forest”, in which any non-forest activity would require prior approval under Section 2 of the Central Act.

CONCLUSION

In the absence of exclusion of the lands in question from the purview of the notification issued under Section 4 of the Act, the grant of quarrying lease without prior approval of the Government of India would amount to an illegal action.