(Prayer: Writ Appeal filed under Clause 15 of Letters Patent, against the order dated 11th day of February 2013 passed by this Court in Writ Petition No.14195 of 2002.)
K. Kumaresh Babu, J.
The unsuccessful petitioner has approached this Court by an intra Court appeal challenging the order made in W.P.No.14195 of 2002 dated 11.02.2013, whereby the learned Judge dismissed the writ petition wherein a declaration was sought to declare the notification inviting offers for grant of granite quarrying lease in respect lands in S.Nos.1/3 and 784/2 of Vadakunadu and Therkunadu Villages of Chinnakalrayan, Attur Taluk, Salem District as issued without the authority of law, non-est and void ab initio and consequently, refund the amount paid towards deposit together with interest at the rate of 18% per annum and duly the petitioner on the monetary loss caused to it.
2. The brief facts is that the third respondent by way of notification invited offers for grant of lease to granite quarrying at various places. The appellant herein had submitted its offer in respect lands in S.No.1/3 and 784/2 of Vadakunadu and Therkunadu Villages of Chinnakalrayan, Attur Taluk, Salem District. The appellant was successful and had paid a sum of Rs.1,00,20,000/- towards the lease amount for quarrying black granite. The appellant was also expected to establish a granite polishing factory within the two years from the date of grant of the lease. As the appellant did not establish the factory dispute arose between the parties and the writ petitions were filed before this Court on various aspects. It is relevant to note that the area in question was notified under Rule 4 of the Tamil Nadu Forest Act, 1882.
3. Heard Mr.Thriyambar J.Kannan, learned counsel for the appellant and Mr.J.Ravindran, learned Additional Advocate General appearing for the respondents.
4. The counsel for the appellant had submitted that the notification itself is illegal, void ab initio as the lands for which the lease has been granted in favour of the appellant has been notified under Rule 4 of the Tamil Nadu Forest Act, 1882 by Notifications dated 25.05.1983 and 17.08.1983. It is his contention that once land had been proposed to be a reserved forest, no activities could be carried out in the land without the permission of the Central Government under Section 2 of Forest (Conservation) Act, 1980. No approval has been obtained from the Central Government and hence the State of Tamil Nadu or its Authorities cannot use the said lands for any other non forest purposes. He further contended that the Notification issued by the third respondent Collector is without authority whatsoever. He also relied upon a judgement of the Hon-ble Apex Court in Civil Appeal No.10294 of 2013 dated 21.07.2022 to contend that once a land has been notified under Rule 4 of the Tamil Nadu Forest Act, 1882, then as per provisions of Forest (Conservation) Act, 1980, particularly, in view of Section 2 of the Act which prohibits any activity, to be carried on without the prior approval of the Central Government. The explanation in respect of non-forest purpose which was permitted that too with such prior approval does not provide for any mining activity. In that scenario, no mining activity pursuant to the lease can be carried out and hence, the first respondent ought to refund the lease amount paid by the appellant and the same cannot be forfeited by them. Hence, he prayed that this court may be pleased to grant the reliefs claimed by it.
5. Learned Additional Advocate General appearing on behalf of the respondents contended that the writ petition itself is an afterthought and the appellant cannot be granted with any relief whatsoever. The appellant had participated in the process of tender and was successful. It was the appellant who did not set up the polishing unit within the prescribed time period. For which reason, it had challenged the same and pursuant to an interim order passed by this Court, the appellant was again granted mining lease on 16.09.1998. It did not avail the benefit extended to it, as no attempts were made to establish the quarrying operations by forming the required roads, creating infrastructure etc. In view of the default committed by the appellant, the deposit amount made by it has been forefeited by invoking Rule 8(A)(1)(a)(iv) of the Tamil Nadu Mines and Mineral Rules, 1959.
6. In reply to the contention that the lands are covered under the notification issued under the Tamil Nadu Forest Act, 1882 the learned Additional Advocate General submitted that the notification was under Rule 4. Only after declaration under Rule 16 of the Tamil Nadu Forest Act, 1882 would the area be declared as reserved forest. Until such time, the lands would only remain as a revenue land and the Government has authority to lease the same for mining activities. According to him, it is only at the stage of proposal and the lands were not declared as a reserve forest. Summing up his arguments, the learned Additional Advocate General submitted that only due to the default of the appellant, the amount paid by it has been forfeited. That apart having participated in the initial tender process and also having come to the terms in the year 1998 pursuant to the interim orders passed by this Court, for carrying on quarrying operations, the appellant cannot now be heard to say that the Government had no authority whatsoever to invite offers to quarry in respect of the lands, as it is estopped from making any such claims. Hence, he contended that the impugned order in this appeal requires no interference and prayed for dismissal of this appeal.
7. We have considered the submissions made by the learned counsel appearing on either side.
8. Before adverting to the merits of the appeal, it would be pertinent to address the Authority of the respondents to invite offers for grant of granite quarrying in the lands which have been notified under Section 4 of the Tamil Nadu Forest Act, 1882. For better appreciation, the said provision is extracted hereunder:
4. Notification by the Government.- Whenever it is proposed to constitute any land a reserved forest, the [Government] shall publish a notification in the [Official Gazette] and in the [Official Gazette] of the district-
(a) specifying, as nearly as possible, the situation and limits of such lands; (b) declaring that it is proposed to constitute such land a reserved forest;
(c) appointing an officer (hereinafter called the Forest Settlement Officer) to inquire into and determine the existence, nature and extent of any rights claimed by, or alleged to exist in favour of, any person in or over any land comprised within such limits, or to any forest-produce of such land, and to deal with the same as provided in this Chapter.
The officer appointed under clause (c) of this section shall, ordinarily, be a person other than a Forest Officer, but a Forest Officer may be appointed by the [Government] to attend on behalf of the [Government] at the inquiry prescribed by this Chapter.
As per the provisions of the said Act, the Government can notify its proposal to constitute any land as a reserve forest after following the various procedures contemplated. Thereafter, a notification has to be issued under Section 16 of the said Act declaring it to be a reserve forest.
9. It is pertinent to note Section 7 of the said Act that mandates bar of accrual of forest rights. The Parliament in its wisdom had enacted the Forest (Conservation) Act, 1980, The said Act applies to the whole of India. Section 2 of the said Act envisages restriction on the de-reservation of the forest or use of forest land for non forest purposes. As per Section 2 clause (iii) when any forest-land or any portion thereof is sought to be assigned by way of lease or otherwise to a private person, or to any authority, corporation, agency or any other organization not owned, managed or controlled by the Government then, the prior approval of the Central Government have to be obtained. Further, Section 2 clause (ii) mandates that the forest-land or any portion thereof may be used for non forest purposes, but that too with the prior approval of the Central Government. Explanation to Section 2 explains what is “non-forest purpose”.
10. The statement of objects and reasons of the Tamil Nadu Forest Act, 1882 is to protect the forest apart from also creating new forest areas for conservancy of environment and nature. Section 3 of the said Act, empowers the Government to constitute any land at the disposal of the Government a reserved forest in the manner provided. Under Section 4, the Government shall issue a notification proposing to constitute any land as a reserve forest. Once such notification is made, the Forest Settlement Officer appointed under Section 4 (b) will have to make a proclamation which includes the bar of accrual of forest rights as envisaged under Section 7. Section 7 provides that in the interregnum i.e. between the publication of such proclamation and the date fixed by the notification under Section 16 no right shall be acquired in or over the land included in the said proclamation except under a grant or contract in writing made by or on behalf of the Government in respect of a person in whom such a right has been created.
11. It is pertinent to note that as stated supra, Section 2 of the Central enactment prohibits any State Government or other Authority without the prior approval of the Central Government or directing any forest land to be used for any non-forest purpose. Hence, we first undertake the exercises of understanding what the term “forest land” means.
12. The Parliament had enacted the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, which came into force on 31.12.2007. The Said Act extends to the whole of India. Section 2(d) defines the forest land and the same is extracted herein for better appreciation of the same.
(d) “forest land” means land of any description falling within any forest area and includes unclassified forests, undemarcated forest, existing or deemed forests, protected forests, reserved forests, Sanctuaries and National parks”
13. In simple terms, the forest land has been defined as a land of any description falling within any forest area and also includes unclassified forests, undemarcated forests, existing or deemed forests, etc. The said Act has been passed by the Parliament to recognize and vest the forest rights and occupation in forest lands in forest dwelling, Schedule Tribes and other traditional forest dwellers, as the same would be for conservation of biodiversity and maintenance of ecological balance and thereby strengthening the conservation regime of the forest while ensuring livelihood and full security of the forest dwellers. This Act is traceable to the same entry of the VII Schedule to the Constitution in which the Forest Acts have also been enacted. Hence, we are inclined to import the said definition under Section 2(d) of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and apply to the forest land which has been the subject matter of Section 2(ii), (iii) and (iv).
14. We have also come across a decision of this Court in Writ Appeal No.645 to 647 of 1997, reported in AIR 1998 Mad 150. A Division Bench of this Court, in a similar situation has shutdown the mining/quarrying lease granted in respect of a forest area. For better appreciation, the relevant paragraph is extracted hereunder:
53....Section 2 of the Forest (Conservation) Act,1980 imposes a blanket bar by enacting that 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 dereservation of any reserved forest or the use of any forest land or any portion thereof for any non-forest purpose. The Supreme Court has also held as early as in MANU/SC/0415/1988: AIR 1988 SC 2187 that in view of the embargo imposed under the said Act, mining in the forest area is not permissible and forest area does not mean merely reserved forests alone.”
15. One another judgment of the Apex Court reported in 1997 (11) SCC 605 has also been brought to notice, hence, it is pertinent to extract the relevant paragraph of the said judgment.
What is important is that the stand now taken by the State of U.P. as well as MDDA is that in view of Section 2(ii) the clearance from the Central Government was necessary. That provision states that notwithstanding anything contained 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 that any forest land or any portion thereof may be used for any non-forest purpose and the explanation states that non-forest purposes shall mean the breaking up or clearing of any forest land or portion thereof for cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants for any purpose other than afforestation but does not include any work relating or ancillary to conservation, development and management of forest. It is, therefore, clear from this provision which has overriding effect on all laws for the time being in force in a State that no State Government or other authority which would include MDDA can make any order without the approval of the Central Government for the user of any forest land or any portion thereof for any non-forest purpose as explained by the explanation thereto. The term “forest land” has not been defined under the Indian Forest Act, 1927 or the 1980 Act and, therefore, has to be understood as including an extensive track of land covered with trees and undergrowth, sometimes intermingled with pasture, i.e., it will have to be understood in the broad dictionary sense. So understood any area which the State Act considers to be a forest and is governed under that law will also be subject to Section 2(ii) of the 1980 Act. Viewed in this light, any land which the State of U.P. by notification declares to be a forest would be governed under Section 2(ii) of the 1980 Act.”
16. The application of Section 2 of the 1980, Act has also been decided in the latest judgment of the Apex Court in Civil Appeal No.10294 of 2013 and batch dated 21.07.2002. The Apex Court had extensively considered the effect of The Indian Forest Act, 1927, Forest (Conservation) Act, 1980, the definition of forest and their effect on the Punjab Land Preservation Act, 1900. It is also apt to extract the relevant portion of the said judgment of the Apex Court.
48. Clause (a) of Section 5 of PLPA provides for restricting or prohibiting the cultivation of any land ordinarily under cultivation prior to the publication of the notification Under Section 3. However, the power Under Section 5 to restrict or prohibit can be exercised in a case where prior to the publication of the notification Under Section 3, quarrying of any stone or the burning of any lime was being made. Thus, there is a marked difference between the language used in Section 4 and that in Section 5 of PLPA. However, as noted earlier, it is not necessary for us to decide the issue whether a land forming a part of a special notification Under Section 5 of PLPA ipso facto becomes a forest under the 1980 Forest Act.”
81. Thus, we hold that the lands covered by the special orders issued under Section 4 of PLPA have all the trappings of forest lands within the meaning of Section 2 of the 1980. Forest Act and, therefore, the State Government or competent authority cannot permit its use for non-forest activities without the prior approval of the Central Government with effect from 25 October 1980. Prior permission of the Central Government is the quintessence to allow any change of user of forest or so to say deemed forest land. We may add here that even during the subsistence of the special orders under Section 4 of PLPA, with the approval of the Central Government, the State or a competent authority can grant permission for non-forest use. If such non-forest use is permitted in accordance with Section 2 of the 1980 Forest Act, to that extent, the restrictions imposed by the special orders under Section 4 of PLPA will not apply in view of the language used in the opening part of Section 2 of the 1980 Forest Act. We also clarify that only because there is a notification issued under Section 3 of PLPA, the land which is subject matter of such notification, will not ipso facto become a forest land within the meaning of the 1980 Forest Act.”
16. In the case on hand, it is not disputed by the respondents that the land in issue is large tract of land with trees and undergrowth. That apart, it is an admitted case that the Government had issued a notification under Section 4 of Tamil Nadu Forest Act as early as in the year 1983 proposing to declare the scheduled lands as a reserved forest. The said notification would implicitly prove that the land in question is a forest. It is also pertinent to note that the said lands have been declared as a reserved forest by issuance of notification under Section 16 of the Tamil Nadu Forest Act on 16.06.2005 with effect from 04.11.2005. The same is also recorded at paragraph 24 of the learned Single Judge-s order.
17. In view of the aforesaid conclusions, it is axiomatic that the provisions of Section 2 of the Forest Act, 1980 which extends to the whole of India would have to be applied to the facts of the case. In such circumstances, the State Government could not have called for notice inviting tenders on 09.10.1990 without the prior approval of the Central Government. As per Section 2, for use of forest land other than non-forest purposes, assigning the forest land 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, then prior approval of the Central Government is mandated. It is also pertinent to see that explanation appended to Section 2 explains what non-forest purposes are. Hence, the notification inviting offers for quarrying purposes ought not to have been made, firstly as there was no prior approval of the Central Government. Secondly, quarrying operation does not fall within the non-forest purpose as explained under Section 2.
18. The respondents have contended that quarrying could be permitted under the provisions of the Tamil Nadu Forest Act, since the land is not declared as a reserved forest and still it is only a revenue land. The said submission is without any substance. After the introduction of Forest (Conservation) Act, 1980 the provisions of the State enactment which are repugnant to it would stand r
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epealed. Secondly, as stated supra, we are of the view that the land covered under the lease is a forest as held by various judgments of the Apex Court. Hence we hold that the respondent has no authority to call for offers for grant of quarrying lease in respect of the land in question and therefore, we do not intend to traverse to the other arguments made by the counsels for both sides. 19. In view of the same, the tender notification dated 09.10.1990 is non-est and invalid hence, it is set aside. The appellant herein pursuant to being a successful bidder has deposited a sum of Rs.1,00,20,000/-(Rupees One Crore and Twenty Thousand only) towards the lease amount. As we have held that the notification itself is invalid and non-est, the said lease amount of Rs.1,00,20,000/- is liable to be refunded to the appellant herein together with simple interest @6% per annum from the date of writ petition, as the Government cannot be allowed to unjustly enrich itself. 20. We are not inclined to grant the other relief viz., damages caused to the appellant for the simple reason that the appellant being a reputed Public Limited Company cannot be said to be ignorant of the facts and law that are now sought to be raised to declare the notification as null and void. It is not in dispute that even though the appellant did not comply with the conditions at the first instance, they were given a second opportunity to commence the quarrying operation. When that be so, the appellant would not be entitled to damages as claimed by it. 21. In view of the aforesaid findings and reasonings, we are of the view that the Writ Appeal, we allow in part as the third respondent had no authority to lease out a forest land for a non-forest purpose that too without prior approval of the Central Government has contemplated under the Forest (Conservation) Act, 1980. 22. In result, the Writ Appeal is allowed in part and consequently, the order passed in W.P.No.14195 of 2002 is set aside. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed, if any.