N.P Singh, J.:— This application has been filed for a writ of mandamus, directing the respondent-Divisional Forest Officer, not to interfere with the mining operation carried on by the petitioners in the area which is part and parcel of his lease-hold.
2. It is the case of the petitioner that a mining lease in respect of the area in question had been granted previously to India Fire Bricks and Insulation Company Private Limited. On the basis of that lease, the aforesaid Company did mining operation in the aforesaid area for a number of years. Thereafter the lease in their favour was terminated and fresh advertisement was made for grant of the mining lease. The petitioner applied for the grant of a lease covering a total area of 415.45 acres of land. The State of Bihar sanctioned the grant of the lease, by its order dated 18-5-1983, for a period of 20 years, for mining Fire Clay in the said area. The Deputy Commissioner, Hazaribagh executed a deed of lease on 25th July, 1983 in favour of the petitioner. The District Mining Officer, Hazaribagh is said to have demarcated the aforesaid area of 415.45 acres and delivered possession to the petitioner on 30-9-1983. The petitioner claims to have started mining operation. However, the Divisional Forest Officer started interfering with the mining operation carried on by the petitioner and threatened to take coercive action. The Divisional Forest Officer issued letter dt. 14-1-1984 to all the Forest Range Officers under him directing them not to allow the petitioner to carry on the mining operations, in the areas leased to the petitioner by the State Government, which was within reserved forest.
3. The stand of the respondent-Divisional Forest Officer appears to be that after the promulgation of the Forest (Conservation) Ordinance, 1980 with effect from 25-10-1980 which was replaced by the Forest (Conservation) Act, 1980 (hereinafter referred to as ‘the Act’), any forest land cannot be used for non-forest purpose, except with the prior approval of the Central Government. As the lease in question had been granted to the petitioner covering even the reserved forest, without the prior approval of the Central Government, the petitioner was not entitled to carry on any mining operation in that portion of the lease-hold, which is part of the reserved forest area.
4. Section 2 of the Act is as follows:—
“2. Restriction on the dereservation 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 purpose.
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 re-afforestation.”
In view of the clear and unambiguous provisions contained in S. 2 read with Explanation thereof, without prior approval of the Central Government, State Government or any other authority cannot direct that any forest or any portion thereof may be used for any non-forest purpose. From the statement of object and reasons of the Act it appears that with a view to checking further deforestation which causes ecological imbalance and leads to environmental deterioration, it was decided to frame the Act in question making encumbent on the State Government to seek prior approval from the Central Government for dereservation of reserved forest and for use of forest land for non-forest purpose.
5. From the language of S. 2 of the Act it appears that the bar placed on the power of the State Government to make order to dereserve a reserved forest or to order the use of forest land for any non-forest purpose, without prior approval of the Central Government, is imperative and mandatory in nature. As such before granting a lease covering any reserved forest or any forest land for use of non-forest purpose which will include mining operation, prior approval of the Central Government is a must. The counsel appearing for the petitioner did not and could not contest the legal position about the mandatory requirement of prior approval of the Central Government, but according to him, the requirement of S. 2 is not applicable to the area in question because before the lease was granted in favour of the petitioner it was in the lease-hold of aforesaid India Fire Bricks and Insulation Company Private Limited which had carried on mining operation in the area. According to the petitioner, the restriction and bar imposed on the power of the State Government in respect of reserved forest or forest land shall not operate in respect of areas where mining operations have already been carried on at one stage or the other. In support of this contention reliance was placed on the judgment of the Supreme Court in the case of State of Bihar v. Banshi Ram, AIR 1985 SC 814 where it was observed that if the permission for breaking up of the forest land or for clearing of forest on any such land has been accorded before the coming into force of the Act and the forest land has been broken up or cleared, then obviously S. 2 shall not be applicable.
6. In the instant case, admittedly the order sanctioning the grant of the lease in favour of the petitioner has been passed by the State Government after coming into force of the Act without prior approval of the Central Government. The aforesaid judgment of the Supreme Court in the case of State of Bihar v. Banshi Ram (supra) has been explained and distinguished later by the Supreme Court itself in the case of Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC 213 : (AIR 1987 SC 1073). About the aforesaid observation of the Supreme Court regarding the land having been broken earlier or cleared it was observed as follows:—
“It is true that this Court held that if the permission had been granted before the coming into operation of the 1980 Act and the forest land has been broken up or cleared, Cl. (ii) of S. 2 of 1980 Act would not apply in such a case. But that decision 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. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. (See Lord Halsbury in Quinn v. Leathern, 1901 AC 495). But in view of the mandate of Art. 141 that the ratio of the decision of this Court is a law of the land. Shri Gobind Das submitted that the ratio of a decision must be found out from finding out if the converse was not correct. But this Court, however, was cautious in expressing the reasons for the said decision in State of Bihar v. Banshi Ram Modi, (AIR 1985 SC 814). This Court observed in that decision that the result of taking the contrary view would be (SCC at p. 648 : (at p. 816 of AIR), para 10) that while the digging for purposes of winning mica can go on, the lessee would be deprived of collecting felspar or quartz which he may come across while he is carrying on mining operations for winning mica. That would lead to an unreasonable result which would not in any way subserve the object of the Act. There was an existing lease where mining operation was being carried on and what was due by incorporation of a new term was that while mining operations were being carried on some other minerals were available, he was given right to collect those. The new lease only permitted utilisation or collection of the said other minerals.”
It was then pointed out in respect of the position regarding renewal of quarry leases in the following words:—
“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 which, in our opinion, it has come to the conclusion that no renewal should be granted.”
7. On the basis of the view expressed in the case of Ambica Quarry Works v. State of Gujarat, (AIR 1987 SC 1073) (supra), it has to be held that the bar imposed under S. 2 shall apply even to cases of renewal of leases because the Supreme Court pointed out that such renewal “will lead to further deforestation or at least it will not help reclaiming back the areas where deforestations have taken place”. Now even if any part of reserved forest or forest land was part of any lease-hold and such reserved forest had been broken or forest had been cleared on the basis of that lease granted prior to coming into force of the Act, no renewal of that lease or fresh grant in respect of that area can be given by the State Government without prior approval of the Central Government, because any such renewal or a fresh grant of such area is bound to lead to further deforestation and cannot help reclaiming back the areas where deforestations have taken place.
8. It is unfortunate that the Deputy Secretary of the Department of Mines and Minerals has issued a letter dt. 21-1-1982 to all the officers concerned that in spite of coming into force of the Act aforesaid, no prior approval of the Central Government was required where there is question of renewing a lease or for grant of a fresh lease where mining operation had been carried in past. Rightly the Central Government has lodged a protest, by its letter dt. 27-11-1982, saying that the direction was against the provisions of the Act in question and prior approval is necessary even in case of renewal of mining leases granted prior to the coming into force of the Act. A copy of that letter has been annexed to the counter-affidavit filed on behalf of the Divisional Forest Officer.
9. The learned counsel appearing for the petitioner referred to a Bench decision of this Court in the case of Mahabir Prasad Jhanjhari v. The State of Bihar, (C.W.J.C No. 492 of 1981 (R) disposed of on 24-7-1981 allowing the petitioner of that writ application to continue mining operation within the portion specified. Apart from the fact that the lease in that case had been granted prior to the coming into force of the Act, the aforesaid judgment was delivered before the authoritative pronouncement of the Supreme Court in the case of Ambica Quarry Works v. State of Gujarat, (AIR 1987 SC 1073) (supra).
10. From the letter dt. 14-1-1984 addressed by the Divisional Forest Officer which has been annexed by the petitioner himself it appears that the lands falling within the lease-hold of the petitioner which are outside reserved forest and forest have already been demarcated. The lease-hold of the petitioner shall be deemed to be valid only in respect of such area which is outside the reserved forest and forest. The great covering the reserved forest and forest without prior approval of the Central Government shall be deemed to be void and inoperative. As the petitioner has acquired no right to carry on mining operation in those area, it is not possible for the Court to issue any writ of mandamus directing the Divisional Forest Officer not to interfere with the mining operation alleged to be carried on by the petitioner over any part of the reserved forest or forest area. The writ application for the relief aforesaid is, accordingly, dismissed. But, in the circumstances of the case, there will be no order as to costs.
B.P Singh, J.:— 11. I agree.
Petition dismissed.