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Case Laws on Wildlife Protection Act Cases on Conservation Heritage
A.R.
Ponnusamy Vs.
Thoppalan @ Karuppa
Gounder :Decided On:
Lalji
Sahay
Bajpai
Vs. Samir Mathur Vs. State of A.P. and Ors: Decided On: 03.02.2003 M.C. Mehta Vs. Union of India (UOI) and Ors. Decided on 02.04.2003 Pu.
C. Thangmura Vs. Pu. F. Vanlalthlana:
Decided On: 26.05.2003 Estate
Officer, (Divisional State of M.P. Vs. Kedia Leather & Liquor Ltd. and Ors. Decided On: 19.08.2003 N.D. Jayal
and Anr. Vs. Balram Kumawat Vs. Indian Handicrafts
Emporium and Ors. Vs. M.C. Mehta Vs.
IN
THE HIGH COURT OF A.R.
Ponnusamy Vs. Thoppalan
@ Karuppa Gounder :Decided On:
Counsels:
For Respondents/Defendant:
Subject:
Catch
Words: Acts/Rules/Orders:
ORDER P. Sathasivam,
J. 1. Since
the issue raised in both the Revision Petitions is one and the same, they
are being disposed of by the following common order. Defendant in O.S.
No. 516 of 1999 on the file of the Additional District Munsif,
Namakkal, aggrieved by the order dated 12-4-2002
passed in the suit, holding that the District Munsif's
Court has jurisdiction to try the issue raised, has filed C.R.P. No. 797/2002
under Section 115 of the Code of Civil Procedure. 2. The very
same petitioner, aggrieved by the order of the same Court dated 3. According
to the plaintiff/respondent herein, he filed a suit in O.S. No. 516 of
1999 on the file of the District Munsif, Namakkal, against the defendant/petitioner herein for permanent
injunction, restraining him (defendant/petitioner herein) from carrying
on the business of stone crushing by using the stone Crushers in S. No.
204/4A of Marurpatty village. In the said suit,
the respondent contended that if the petitioner operates the crushing
unit in S. No. 204/4A, it will generate dust pollution and due to the
same the respondent and his family members will be put to great hardship,
inconvenience and loss. Further, the petitioner has not obtained any order
from the Tamil Nadu Pollution Control Board; hence the petitioner is not
entitled to carry on the operation. The respondent herein filed I.A. No.
874/99 and obtained an order of injunction on 4. Heard
Mr. M. Venkatachalapathy, learned senior counsel
for the petitioner and Mr. K. Yamunan, learned
counsel for respondent. 5. The following
questions are to be considered in these Revisions: (i)
Whether the suit filed by the respondent-plaintiff is barred under Section
46 of the Air (Prevention and Control of Pollution) Act, 1981? (ii) In any
event, whether the Court below was justified in keeping the injunction
application namely I.A. No. 874/99 without disposing of the same one way
or other? 6. The plaintiff/respondent
herein has filed O.S. No. 516 of 1999 on the file of the District Munsif,
Namakkal against the defendant/petitioner herein
for permanent injunction restraining the defendant from carrying on business
of stone crushing by using stone crushers in S. No. 204/4A of Marurpatti
village. It is the grievance of the petitioner that inasmuch as the relief
prayed for flows from the Pollution Control Act, the 7. In the
light of the various averments, I have carefully perused the plaint averments
in O.S. No. 516 of 99 and the order of the trial Court holding that the
suit is maintainable. Learned senior counsel for the petitioner, by drawing
my attention to Section 46 of the Air (Prevention and Control of Pollution)
Act, 1981 (hereinafter referred to as "the Act"), would contend
that inasmuch as the issue relates to air pollution, the Authority under
the Act alone is competent to consider the same and by virtue of Section
46, the jurisdiction of the Civil Court is completely barred. In order
to appreciate the said contention, it is useful to refer Section 46: "Section
46. Bar of jurisdiction:- No civil court
shall have jurisdiction to entertain any suit or proceeding in respect
of any matter which an Appellate Authority constituted under this Act
is empowered by or under this Act to determine, and no injunction shall
be granted by any court or other authority in respect of any action taken
or to be taken in pursuance of any power conferred by or under this Act."
It is clear
from the above provision that in respect of any matter which an Appellate
Authority in this Act is empowered, Civil Court has no jurisdiction to
entertain any suit and no injunction shall be granted in respect of any
action taken or to be taken by the Authority concerned. Though prior to
the filing of the suit, the plaintiff was having permission from the Pollution
Control Board to use Crusher, admittedly, on the date of the suit, he
was not having any order from the Board. In such a circumstance, as rightly
contended by the learned counsel for the respondent, the plaintiff has
to approach the "4?.Section
58 enacts two prohibitions. Firstly, not to entertain any suit or proceedings
in respect of any matter which the appellate authority constituted under
the Act is empowered to determine. Secondly, no injunction shall be granted
in respect of any action taken by any authority under the Act in pursuance
of the provisions of the Act. This is the only provision barring the jurisdiction
of a There is
no dispute that Section 58 referred to in the above decision is similar
to Section 46 of the Air (Prevention and Control of Pollution) Act, concerned
in the case on hand. As rightly observed by the learned Judge, the section
is intended to preserve the statutory protection given to the Boards untouched
by civil actions. In the absence of any order by the Board or intervention
by the Authority under the Act, any order passed by the 8. Apart
from the above legal position, it is seen that working of the Stone-Crushing
unit in S. No. 204/4A will be environmental hazard and a source of air
pollution, affecting the health of the people residing in the locality.
It is highlighted by the respondent herein that when the petitioner wanted
to re-commission the unit, several objections were raised by various people,
including the Panchayat Union and the respondent,
that one Selvakumar, whose house is situate
about 100 metres from the crushing unit, also
objected to the same and that on a consideration of all these objections
and after inspecting the site, the Tamil Nadu Pollution Control Board
directed the petitioner not to recommence the unit at the existing site
and refused to renew the consent order. It is also brought to my notice
that the Commissioner, Namakkal Panchayat Union has cancelled
the licence of the petitioner and the Tamil Nadu Electricity Board has
disconnected the service connection to the crushing unit. Further, in
the light of the specific objection raised in the written statement regarding
maintainability of the suit, the learned Additional District Munsif, Namakkal framed a preliminary
issue regarding jurisdiction and after full-fledged enquiry, came to the
conclusion that 9. Coming
to I.A. No. 874/99 in O.S. No. 516/99, which was filed for interim injunction,
it is seen from the certified copy of the order, even on 25-8-99 the learned
District Munsif after holding that prima facie
case was made out and balance of convenience was in favour
of the petitioner, granted ad-interim injunction till 8-9-99 and ordered
notice to the respondent. It is further seen that on the next hearing
date i.e., on 10. In the
light of what is stated above, in view of the first order of the trial
Court dated 3-1-2001 holding that the Civil Court has jurisdiction to
try the issue in question, order of this Court in C.R.P. No. 572/2001
dated 20-7-2001 confirming the said order, in the light of the language
used in Section 46 of the Act, and the plaintiff is not challenging any
order or proceedings of the Pollution Control Board or Authority constituted
under the Act, I hold that the suit instituted by the plaintiff is maintainable.
It is made clear that if the matter in issue is to be considered by an
Appellate Authority under section 31 of the Act, undoubtedly, the
IN
THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
Hon'ble
Judges: Counsels:
For Respondents/Defendant:
Subject:
Catch
Words: Acts/Rules/Orders:
Cases
Referred: Disposition:
JUDGMENT Devinder
Gupta, C.J. 1. Four Writ
Appeals arising out of a common order passed
on 1-11-2002 in WP Nos. 26864, 26877, 26898 and 26978 of 1999 respectively
came up for consideration before us. It was brought to our notice by the
learned Counsel appearing for the parties that the Writ Petition Nos.
34514, 34516, 34524, and 34528 of 1998 arising out of
the same subject-matter filed by the very same writ petitioners i.e.,
respondents in the writ appeals were pending consideration, hence the
writ appeals and the writ petitions be heard together. With the consent
of
all the parties the writ petitions have also been taken on record. The
appeals and the writ petitions were heard together and are being disposed
of
by this common order. 2. The parties
are being referred to by their status in the writ appeals. The respondents
claim that the saw mills were established within Nizamabad
Municipal area much prior to the date when Andhra Pradesh Saw Mills (Regulation)
Rules, 1969 (hereinafter referred to as "the Rules") were made
applicable to the said area. When the saw mills were established there
was no necessity to obtain any licence to install, erect or operate a
saw mill in the notified municipal areas. Only when the rules were made
applicable even to municipal areas by reason of G.O. Ms. No. 99 dated 3. It appears
that huge quantity of illicit timber had flowed
into Nizamabad municipal area, alleged to be
covered under fake and forged permits during the year 1993-94. The forest
authorities (hereinafter referred to as the appellants) issued show-cause
notices invoking the provisions of the rules with a view to confiscate
the stock of timber lying in the respondents' saw
mills and to explain about the illicit transportation of timber. Feeling
aggrieved the respondents (Saw Mills) filed a batch of Writ Petitions,
one of which was W.P.No. 22314 of
1996, seeking quashing of notices, inter alia, alleging that the
permits in question were not fake and that the
timber covered by the said permits had already been disposed of under the
cover of transit permits granted by the forest authorities. By
order dated 11.12.1996, the Writ Petitions were disposed of quashing
the show cause notices on the ground that the rules were not attracted
since the saw mills were located in municipal area. While disposing of the writ
petitions, certain observations were made and liberty was reserved to
the appellants to take action against the saw mills, in accordance with
law. Pursuant thereto, second show-cause notices issued in February, 1997
intending to confiscate the timber and the saw mills, purportedly, invoking
Section 44 of the A.P.
Forest Act (for short "the Act") and Rules 3 and 5 of Andhra Pradesh
Forest Produce Transit Rules, 1970. Feeling aggrieved,
a batch of writ petitions were filed by respondents, one of
which was W.P. No. 4301 of 1997. Respondents allege that the said
writ petitions were allowed by this Court on 16.6.1997 quashing the notices
since the timber was not available for seizure. The appellant thereafter
is alleged to have issued another show-cause notice dated 4.8.1997 under
Rules 2, 8 and 11 of A.P. Forest Produce (Storage & Deport) Rules, 1989
proposing to confiscate the timber possessed by the respondents together
with the saw mill equipment and infrastructure used in conversion of
the timber which was alleged to have been smuggled. Another batch of
writ petitions were filed by the respondents
challenging the notices on the ground that the said rules under which
the notices had been issued had no application to the respondents - saw
mills. These writ petitions were allowed by a Common Order dated 20.3.1998.
Notices were quashed and the appellants were directed to consider the
applications of
the respondents for grant of transit permits. 4. In view
of the fact that the rules became applicable even to municipal
areas by virtue of amendment to the Rules, vide
G.O. Ms. No. 99 dated 17.7.1998; the respondents filed applications for
grant of licences under the amended
rules. The said applications were rejected on 24.11.1998 on the ground
that there were criminal cases registered against the respondents. The
respondents filed Writ Petitions (W.P. No. 34514, 34516, 34524 and 34528
of 1998) challenging
the action of the appellants in rejecting their applications.
A prayer for interim direction to grant temporary licences during the pendency of
the writ petitions was also made by the respondents. When the writ petitions
came up for admission, on 11.12.1998 a learned single Judge, while issuing
Rule Nisi, granted interim direction directing the appellants to consider
the case of
the respondents for grant of licence within a period of
four weeks without reference to the criminal cases stated to have been
registered against them. In the meanwhile, it was directed that the respondents
be permitted to carry on the business in accordance with law. The said
writ petitions are still pending. The interim order passed in the said
writ petitions is still in operation. The learned single Judge, however,
in the impugned order, which is the subject matter of writ appeals,
has observed that the said writ petitions stood disposed of
on 11.12.1998. 5. The applications
for grant of licences
again came up for consideration but were rejected on the ground of
non-submission of certain documents, which the respondents are alleged
to have submitted again. The respondents were thereafter informed that
their applications already stood rejected on 24.11.1998 and on 11.1.1999.
Feeling aggrieved, respondents again challenged the appellants' action
by filing writ petitions before this Court one of which was W.P.No.7476 of
1999. The said batch of writ petitions were decided at the admission
stage on concession made by the learned Counsel appearing for the appellants
that direction be issued to the appellants to consider the applications
and pass appropriate orders thereupon. Accordingly' by order-dated 3.4.1999,
the writ petitions were disposed of and the appellants
were directed to reconsider the applications and pass fresh order thereon
within a period of four weeks. 6. The applications
of the respondents were again rejected on
26.11.1999. The said order was challenged by the respondents in four separate
writ petitions. This batch of writ petitions have been allowed
by the learned single Judge by a common order passed on 1.11.2002, which
is the subject matter of the present Writ Appeals.
7. The applications
of the respondents for grant of
licences were rejected on several grounds. Challenge
by the respondents to the order of rejection was also on several
grounds. The appellants resisted the writ petitions by filing counter-affidavit
Without going into the grounds which had been raised by respondents and
without taking into consideration - the objections raised by the appellants
in the counter-affidavit, the learned single Judge allowed the writ petitions
only on one ground and directed the appellants to grant licences
to the respondents within two weeks from the date of receipt of
the order with costs of Rs. 3,000/- each and further directing
the appellants to recover the said costs from the concerned Divisional
Forest Officer who had passed the orders impugned against in the writ
petitions. Till the licences are granted, it was directed that status quo be continued.
8. Paras
4 and 5 of the order
reads: 4. The learned
Government Pleader has filed a counter disputing and denying the allegations
made in the affidavit of the petitioners.
In fact, so many other allegations were also made in the counter, which
we need not go into at this stage. When the grant of nine licences subsequent to the impugned orders was put to the
learned Government Pleader and was also directed to get instructions,
the learned Government Pleader was not in a position to explain under
what circumstances, such licences were granted
to nine persons, when it was the view of the Divisional Forest Officer that the source available
in the Nizamabad town does not sustain any more
saw mills. 5. Therefore,
these writ petitions are disposed of on the simple
ground that the impugned order passed by the Divisional Forest Officer
is clearly motivated and intentional and there are absolutely no justifiable
grounds shown in the impugned order for not granting the licence to the
petitioners who are existing saw mill owners.
9. The aforementioned
order is under challenge by the appellants on the ground that the learned
single Judge ought to have considered the stand taken by the appellants
and the fact that the offences alleged to have been committed by the respondents
were of serious nature and granting of
licences to the saw mills - respondents may
lead to deterioration of the forests in the area. 10. Learned
Counsel appearing for the respondents submitted that there was no ground
to interfere with the impugned order since one of the grounds
on which the applications of respondents were rejected
was that the number of saw mills in Nizamabad town
was 48 and none of the saw mills were running on sustainable basis and
the appellants were unable to explain the reason for granting licences to nine other persons subsequent to the passing of
the order impugned in the writ petitions. Learned Counsel appearing for
the respondents also submitted that the very act of the appellants
in rejecting the applications of the respondents
for grant of licences on
the ground of registration of criminal
cases or pendency of criminal
proceedings is bad in law inasmuch as mere registration of criminal
case or pendency of criminal
proceedings cannot be a ground for rejection unless it is established
that respondents were responsible for the fake licences
or forged permits. Reliance was placed on the decision of a learned
single Judge of this Court in Malliah v. Superintendent
of Excise, 1988 (1) ALT 603. Reliance was also placed on
the decision of the Supreme Court in. Dabur
India Ltd. v. State of 11. We have
heard learned Counsel appearing for the parties and have gone through
the entire material on record and duly considered the submissions. 12. There
is enough material available on record to show that there were complaints
alleging that saw mill owners of Nizamabad town were indulging in transportation of
smuggled timber covered by fake licences and
forged permits. The Forest Official made verification of the records
of the saw mills. As per the case of the appellants,
during verification of the records of
the premises of the saw mills, it was noticed that the respondents had
indulged in transportation of illicit smuggled timber into
the saw mills covered under the fake permits. Number
of
permits were found to be fake and forged, which was confirmed by
the Divisional Forest Officer Nizamabad and
the Divisional Forest Officer, Yawathmal, 13. In the
additional counter-affidavit filed by the Divisional Forest Officer, Nizamabad
the details of the saw mills
which were alleged to be involved are furnished which include the respondents
herein. Details of complaints lodged against
the saw mills with the concerned Station House Officers of Nizamabad town have also been furnished. It is stated that
the Station House Officer 1 Town Police Station, Nizamabad
has filed charge sheets against the saw-mill owners including the respondents
herein and that a request was made to the State government for entrusting
the cases to CBCID or any independent agency, vide letter dated 20.1.1997.
Government of Andhra Pradesh by letter dated 14. The only
question that arises for consideration is whether the appellants were
justified in rejecting the applications of the petitioners
for grant of licences. 15. In exercise
of the powers conferred by Section 29 read with Section
68 of the Andhra Pradesh Forest Act, 1967, the Governor of
Andhra Pradesh issued rules regulating the location of saw mills
and conversion of timber at the saw mills in the State. Rule 4(1)(a) provides
that any person desiring to install, erect or operate a saw mill within
the area specified in Rule 3 shall make an application together with the
necessary material to the licensing authority. Sub-rule (2) of Rule 4 of
the Rules empowers the licensing authority to grant licences
only if the licensing authority, on making such enquiry as he deems fit
and after satisfying himself whether or not there would be any objection
to granting the licence applied for, having regard to safeguarding the
timber in any reserved, protected or proposed forest, or in any land referred
to in Rule 3. In such cases where there were serious allegations of involvement
of respondents in the very act of being in
possession of smuggled timber, on strength of some forged
permits, in our considered opinion, the same would be a relevant factor
within the ambit of Sub-rule-(2) of Rule to be
taken note of in declining the applications. Therefore, no fault can
be found in the appellants having rejected the applications of
the respondents on 24.11.1998, which is the-subject-matter of Writ Petition
No. 34514 of 1998 and the Batch. Be it noted that the respondents
got an interim order for reconsideration of their applications
by not taking into consideration the fact of registration
of F.I.Rs. 16. The learned
single Judge in the impugned order did not examine all the grounds on
which applications had been rejected and also failed to consider vital
objections raised by the appellants in the counter-affidavit in support
the order and proceeded to allow the writ petitions only on one ground.
Since rejection of the applications was on various grounds, it was not
proper to have discarded the other grounds. Be that as it may, since the
second order dated 26.11.1999 was passed because of the interim
direction that the applications of the respondents
may be considered without taking note of registration
of criminal cases against the respondents obviously in
the fresh order pendency of criminal
cases could not have been taken note of by the appellants.
17. The first
order of rejection of the applications
of the respondents for grant of licences has to be read in continuation of the second
order, which is the subject-matter of the Writ Appeals. Because
of the act of the respondents in having
obtained interim order for disposal of their applications
de hors pendency of the criminal
proceedings that the second order was passed, the respondents cannot take
benefit of the situation contending that the rejection by the second
order is on grounds, which are not tenable in law. Before us now the question
is whether the forest authorities were justified in having rejected the
applications for grant of licence. Learned single Judge
proceeded to quash the order of rejection simply on one
ground which as noticed above is not permissible in law inasmuch as it
was necessary for the learned single Judge to have looked into the other
grounds whether the same were relevant or not. Without looking at the
counter or the objections raised by the forest authorities, the learned
single Judge proceeded to quash the order and granted the relief to the
respondents. Reading both the orders together and as we have already found
earlier the very act of
the forest authorities in having rejected the applications of the respondents
was because of their involvement in criminal cases concerning
the illicit timber. There is no foundation for the observations of
the learned single Judge that the impugned order passed by the Divisional
Forest Officer is motivated and intentional. 18. In Malliah
v. Superintendent of Excise the
question for consideration was refusal of authorities
to renew licences under the Tree for Tappers Scheme on ground that the licensees were involved
in adulteration of toddy. It was held that the criminal cases against the
petitioners therein had not been decided, therefore, it cannot be said
that the persons concerned were involved in adulteration of toddy as
their involvement had not been proved either in departmental proceedings
or in criminal proceedings before the Court. The ratio of the said
case will have no application to the case in hand. In the instant case,
enough material had been collected during inquiry suggesting that the
respondents were in possession of illicit timber relatable to the fake and forged permits.
No doubt criminal cases have not yet concluded and there is no verdict
recorded therein. But the seriousness of the allegations
on the basis of preliminary inquiry and on
the basis of material collected would also suggest that relevant
factors were prevalent as are required to be taken into consideration
by the licensing authorities under Sub-rule (2) of Rule 4 of
the rules, necessitating rejection of the applications for grant
of licences. 19. Ratio
of the decision in. Dabur India
Ltd. v. State of 20. Consequently,
Writ Petition
IN
THE HIGH COURT OF JHARKHAND
Lalji
Sahay
Bajpai
Vs. Hon'ble
Judges: Counsels:
For Respondents/Defendant:
Subject:
Catch
Words: Acts/Rules/Orders:
Cases
Referred: Disposition:
ORDER M.Y. Eqbal,
J. 1. In this
writ application the petitioner has prayed for quashing the order dated
22.12.2001, whereby the Divisional Forest Officer, Kolhan
Forest Division, being the Licensing Authority, cancelled the license
of the Saw Mill of the petitioner and also the order dated 11.5.2002 passed
by respondent No. 3, Conservator of Forest, being the appellate authority,
who affirmed the order passed by the Licensing Authority. 2. Petitioner's
case is that he started Saw Mill on a portion of land comprised of RS
Plot No. 431 under valid licence granted by the respondents in the year
1976. Petitioner's further ease is that RS Plot No. 431 stands recorded
in the name of Sputh Eastern Railway in survey
record of right and the land has been shown in possession of Forest Department
since 1940. It is contended by the petitioner that time-to-time license
was renewed by the Licensing Authority but in 2001 the Licensing Authority
refused to renew the license. 3. Respondents
in their counter affidavit have stated that the impugned orders refusing
to grant license to the petitioner has been passed in the light of the
orders passed by the Supreme Court restraining any non-forest activities
in the forest land. It is stated that running of Saw Mill of any kind
is not permissible without approval of the Central Government under the
provision of Forest Conservation Act. Respondent's further case is that
the location of the Saw Mill is within less than two kilometer nearest
to the protected forest and the plot in question where the petitioner
running a Saw Mill is in peaceful possession of the Forest Department
since 1940. 4. Mr. Rajiv
Ranjan, learned counsel for the petitioner assailed
the impugned orders as being illegal and wholly without jurisdiction.
Learned counsel drawn my attention to Section 29 of the Indian Forest
Act and submitted that only excepting those forest declared by notification
the respondents had no authority to refuse the renewal of license merely
because the Saw Mill is situated within the area described as a forest.
In my opinion, the submission of Rajiv Ranjan
is wholly misconceived and devoid of any substance. 5. Admittedly,
the petitioner installed saw mill on a portion of 6. From perusal
of the impugned letter issued by Divisional Forest Officer refusing to
renew the license of the petitioner, it appears that the only ground taken
by the authority is that pursuant to the decision of the Supreme Court
no new license can be granted after 12.12.1996. It is stated in the said
letter that since petitioner was not granted licence for saw mill after
1997 and therefore, it cannot be renewed. It is not the case of the petitioner
that the saw mill of the petitioner is not situated within the forest
area. 7. In the
case of T.N. Godavarman Thirumulkpad v. Union of India and Ors.,
AIR 1997 SC 1228, the Supreme Court while considering the, question about
the object and purpose of the enactment of .
"In view of the meaning of the word "forest" in the Act,
it is obvious that prior approval of the Central Government is required
for any non-forest activity within the area of any "forest".
In accordance with Section 2 of the Act, all on going activity within
any forest in any State throughout the country, without the prior approval
of the Central Government, must cease forthwith. It is, therefore, clear
that the running of saw mills of any kind including veneer or ply wood
mills, and mining of any mineral are non-forest purposes and are, therefore,
not permissible without prior approval of the Central Government. Accordingly,
any such activity is prima facie violation of the provisions of the Forest
Conservation Act, 1980, Every State Government
must promptly ensure total cessation of all such activities forthwith. 8. The Supreme
Court again passed the order in the same case on 4.3.1997 (AIR 1997 SC
1233) issuing further direction. "All
unlicensed saw mills, veneer and ply wood industries in the State of Maharashtra
and the State of Uttar Pradesh are to be closed forthwith and the State
Government would not remove or relax the condition for grant of permission/license
for the opening of any such saw mill, veneer and ply wood industry and
it shall also not grant any fresh permission/license for this purpose.
The Chief Secretary of the State will ensure strict compliance of this
direction and file a compliance report within two weeks." 9. Recently
a Division Bench of Orissa High Court in the
case of Bhagwan Bhoi
v. State of "In
view of the decisions of the Supreme Court as aforesaid, there cannot
be any doubt that the Forest (Conservation) Act would apply to any forest
land whether declared as private forest or not and whether the forest
is a reserve forest or not. Once you find that the land satisfies the
description of being a forest land, it has to be taken that the 10. Taking
into consideration the entire facts of the case and the law discussed
herein above, I am of the opinion that the respondents have rightly refused
to renew the saw mill license of the petitioner, which is situated on
the forest land and in possession of the forest department for the last
several decades. 11. For the
reasons, aforesaid, there is no merit in this writ application, which
is accordingly dismissed. IN
THE HIGH COURT OF JHARKHAND Hon'ble
Judges: Counsels:
For Respondents/Defendant:
Subject:
Catch
Words: Acts/Rules/Orders:
Disposition:
ORDER 1. Heard
learned counsel for the appellant and learned counsel for the respondents. 2. A mining
lease was granted to the appellant on 15.2.1995 for a period of 10 years.
It is seen that the land was already notified as private protected forest
under the provisions of the Bihar Private Forest Act. 1947. After
the coming into force of the Bihar Private Forest Act. 1947 and the various
decisions of the Supreme Court, it was apparently realized that the land
in question could not have been leased out for using the land for non-forest
purposes, namely, mining operations and that the lease could not have
been granted on the coming into force the Forest (Conservation) Act, 1980.
Therefore the lease was cancelled notwithstanding the fact that its term
expired only by 22.11.2004. The appellant approached this Court challenging
the cancellation of the lease. It was contended that, subsequently, the
Bihar Land Reforms Act came into force and the land vested in the State
and there was no illegality in granting the lease even if the land was
recorded as Pahad in the revenue records and
consequently the cancellation of the least: on the ground that it was
forest land and the activity to be carried on by the lessee was not for
a non-forest purpose is not justified or legal. The contention of the
appellant was opposed by relying on the notification issued under the
provisions of the Bihar Private Forest Act. 1947 and contending that since
the land is a forest land it could not have been leased out for a non-forest
activity. The appellant could not dispute the fact that the land had been
notifieci as forest land under the Bihar Private Forest Act.
1947. 3. In this
situation, the learned single Judge held that since the land was a private
protected forest under the provisions of the Bihar Private Forest Act,
1947 and by a notification, the land was notified as private protected
forest, in the light of the decisions of the Supreme Court referred to
in that judgment, the State was not entitled to grant any lease or licence
for using the forest land for a non-forest purpose. The learned single
Judge, therefore, declined to interfere and accordingly dismissed the
writ petition. 4. Challenging
the decision of the learned single Judge in this appeal, it is submitted
that proceedings are still pending for deciding whether the land is held
by the State Govt. or by the Forest Department and in this view of the
matter, the cancellation of the lease before the expiry of the term was
not justified. With respect to counsel, it has to be said that the dispute
if any as to whether the land is under the control of the State Government
or the Forest Department, has no relevance. That the lease has been granted
for mining purposes a non-forest activity is admitted. That the land is
forest land, is clear from the notification issued under the Bihar
Private Forest Act, 1947. The fact that the land is
notified as Pahad in the revenue record does
not make it not a forest. Nor can it prevail over the notification
issued under the Bihar Private Forest Act, 1947. After all most of the
forests are hillocks or Pahads. 5. So long
as there is a notification to the effect that the land is forest land
and the Government had decided to manage and control the protected forest,
the appellant cannot claim to carry on mining activities therein. Even
otherwise, if it is forest land in common parlance, the use of it for
any non-forest activity is prohibited in the light of the directions of
the Supreme Court, irrespective of the ownership over the land or whether
it has been notified as a reserved forest or not. Since we are satisfied
that the learned single Judge was justified in declining relief to the
appellant, we see no reason to interfere. We, therefore, dismiss the appeal.
No order as to costs. Hon'ble
Judges: Counsels:
For Respondents/Defendant:
For Subject:
Subject:
Catch
Words: Acts/Rules/Orders:
Cases
Referred: Disposition:
JUDGMENT S.J. Mukhopadhaya,
J. 1. The petitioner
M/s. DLF Power Limited being not satisfied with the order of withdrawal
of No Objection Certificate (for short NOC) granted over four years ago,
has challenged the order contained in letter no. 1757 dated The NOC earlier
granted to the petitioner has been withdrawn and cancelled in pursuance
of letter No. 103-22/ EPE dated 2. The case
of petitioner is that it entered into an agreement with the Coal India
Limited (for short C.I.L) on 11th January, 1995 for setting up captive
power plant,
on Build-Own-Operate Basis at Mad-huband Washery of Bharat Coking Coal Limited,
Dhanbad (for short BCCL). As per the agreement,
petitioner is to supply power to Madhuband Washery Areas, at Bagh-maro in the
district of Dhanbad (now in the State of The land
for the power
plant was provided by BCCL, a subsidiary of C.I.L. As per the agreement,
petitioner had to arrange finance, design and procure, install, operate
and maintain fluidized bed combustion boiler based, Thermal Power Plant along with various
other equipments of the power plant. Further case
of petitioner is that the plant based on fluidized bed combustion technology
is a latest technology which is environmental friendly. The actual cost
of the project as installed is about Rs. 80 crores. After signing
of the agreement and acquiring land, the petitioner vide its application
No. 284, dated 26th August, 1997 applied to the Bihar State Pollution
Control Board (for short B.S. Pollution Control Board) for obtaining NOC
Under Sections 25 and 26 of the Water (Prevention and Control of Pollution)
Act. 1974 (for short Act, 1974) and Under Section 21 of the Air (Prevention
and Control of Pollution) Act, 1981 (for short Act, 1981) for setting
up 1 x 10 MW Captive Power
Plant at Madhuband. NOC Under Sections 25 and
26 of the Act, 1974 and Under Section 21 of Act, 1981 was issued by the
B.S. Pollution Control Board to the petitioner vide Reference no. T- 1975
dated According
to petitioner, it came as a shock to receive letter dated 17th July, 2002
from J.S. Pollution Control Board stating that the NOC granted by B.S.
Pollution control Board dated 25th March, 1998 has been cancelled on the
plea that NOC was granted without conducting public hearing which is inconsistent
with S.O. No. 319 (E), dated 10th April, 1997. The petitioner has been
asked to get a fresh environmental clearance before start of construction
activity and has been directed to stop all activities such as site clearance. The cancellation
of NOC seems to have been done on the direction of 4th respondent-Union
of 3. Further,
according to petitioner, the respondents failed to appreciate the fact
that construction and erection of plant had already been carried out after
obtaining NOC and the same has already been completed and commissioned
after huge investment of Rs. 80 crores. It has been
alleged that the NOC has been cancelled in pursuance of an order dated
18th June, 2002, communicated vide letter dated 17th July, 2002 without
issuing any show cause notice to the petitioner and without taking into
consideration the relevant fact that the plant has already been commissioned
and all the construction activities were complete. 4. Counsel
for the petitioner referred to para-18 of the writ petition to suggest
that the B.S. Pollution Control Board granted the NOC taking into consideration
the relevant documents, as mentioned here under : "(i)
The facts stated in their Application and Project report. (ii) Bihar
State Pollution Control Board's Notification no. 45 dated (iii) Provision
of related Water and Air Acts. (iv)
Check list dated (v)
The related NOC Committee's decision of It was submitted
that the B.S. Pollution Control Board having issued NOC after following
all the procedures, it was not open for J.S. Pollution Control Board to
reopen the Issue after about four years. Apart from
the allegation of violation of rules of natural justice, it was pleaded
that the Doctrine of Promissory Estoppel debars,
the respondents from backing out of its commitment made by it in the course
of performance of its statutory duties. The petitioner having made huge
investment of over Rs. 80 crores in setting
up and erecting the power
plant pursuant to. NOC dated 5. Counsel
for the petitioner relied on the decision of the Supreme Court in "Guj-rat
State Financial Corporation v. Lotus Hotels Pvt. Ltd.",
reported in AIR 1983 SC 848 and the case of "M.P. Sugar Mills v.
State of U.P." reported in AIR 1979 SC 621. 6. The respondents
have not controverted that the petitioner applied
and after due enquiry, the B.S. Pollution Control Board granted NOC to
set up 1 x 10 MW captive power plant at Madhuband vide
Memo no. T-1975-Patna dated The following
Stand has been taken by the respondent J.S. Pollution Control Board "That the Additional Director (s), Government of India, Ministry of Environment, Forest, Eastern Regional Office, A/3, Chandrasekharpur, Bhubaneshwar by letter no. 133-22/EPE. dated 18th June, 2002 requested that the project activities of the construction of Thermal power plant by the petitioner M/s. D.L.F. adjacent to Madhuban Washery of M/s. B.C.C.L. be stopped and the |