PETITIONER: M/S HYDERABAD ABRASIVES & MINERALS (P) LTD.REPRESENTED BY SH Vs. RESPONDENT: STATE OF ANDHRA PRADESH & ORS. DATE OF JUDGMENT: 11/07/1997 BENCH: G. B. PATTANAIK ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
PATTANAIK, J.
Leave granted.
This appeal by special leave is directed against the
judgment of the Andhra Pradesh High Court dated 27.8.1993 in
writ petition No.3734 of 1993. The present appellant was
respondent No.6 before the High Court. SAKTI, a voluntary
social organisation for the upliftment of tribals in east
Godavari District find the writ petition in the Andhra
Pradesh High Court praying therein that the mining
activities which are carried on by the respondents 6 to 10
in the said writ petition should be immediately stopped as
the grant of mining leases in their favour is in
contravention of Section 3 of the Andhra Pradesh Scheduled
Areas Land, Transfer Regulation, 1959 (hereinafter referred
to as the `Regulation’) as well as section 2 of the Forest
(Conservation) Act, 1980 (hereinafter referred to as the
‘Conservation Act‘). It was averred in the writ petition
that the villages where the mining activities are being
carried on were notified as protected forests under Section
24 of the Andhra Pradesh Forest Act, 1967 with effect from
8.9.1975 and within the said forest area it is not
permissible to continue any mining activity in view of the
provisions of the conservation Act which prohibits user of
forest land for non-forest purpose.
Respondents 1 to 4 before the High Court, who were the
public officers of the State Government supported the case
of the petitioner and took the stand that a joint inspection
report had been conducted after surveying the area over
which the mining activities are being carried on by the
respondents 6 to 10 and the said report reveals that mining
leases have granted over the forest area which is prohibited
under the conservation Act without prior approval of the
Central Government.
Respondent No.6 the present appellant took the stand
that the lease having been granted much prior to the area in
question was included as a protected forest, the embargo
contained in the provisions of the Conservation Act will not
apply and in this connection reliance was placed on the
decision of this Court in the case of STATE OF BIHAR Vs.
BANSHI RAM, (199) 3 SCC 643. It was also contended that
Section 3 of the regulation has no application to a transfer
by the Government in respect of its land in favour of a non-
tribal and the word `person’ in Section 3 of the said
regulation will not include the Government. It is not
necessary for us to examine the stand taken by other private
respondents, namely respondents 7 to 10.
The High Court by the impugned judgment came to the
conclusion that the transfer of any land in scheduled area
to a non-tribal is void under Section 3 of the Regulation,
and therefore, the lease in favour of respondent no 6 within
the scheduled area is void. The High Court came to the
conclusion that the word `person’ in section 3 of the
Regulation includes the Government, and therefore, leases
granted by the State Government in scheduled area to a non-
tribal is void . On the question of applicability of the
conservation Act the high Court also relied upon the
decision of this court in the Banshi Ram’s case (supra) and
came to the conclusion that for grant of mining lease in a
protected forest area for non-tribal purpose the prior
approval of the Central Government is mandatory and since
the Government did not obtain the approval of the Central
Government, leases are in contravention of section 2 of the
Forest Conservation act, 1980. Having considered the
judgment of this Court in AMBIKA QUARRY WORKS Vs. STATE OF
GUJARAT (1987) 1 SCC 213 and taking into account the fact
that respondent no. 6 had completed the mining operation
over 42 acres the High Court permitted the said respondent
no. 6 to remove the dug up mineral in the presence of joint
Collector of the District, Assistant Director of Mines and
Geology and the District of Surveyor of the Forests.
Respondent No.6, the present appellant was prohibited from
mining operation in the area with the aforesaid conclusion
and thus the appeal by special leave.
Learned counsel for the appellant argued with vehemence
that the conclusion of the High Court that the word ‘Person”
in Regulation 3 (1) (a) includes the State Government and
the transfer of any land within the scheduled area in favour
of a non-tribal is null and void is wholly erroneous as the
embargo in question is applicable in respect of transfer of
land belonging to the scheduled Castes and scheduled Tribes
and not to land belonging to the State Government. The
learned counsel also urged that the restrictions and
prohibitions in the Conservation Act will have no
application to an existing lease and the lease in favour of
the appellant having been granted much prior to the coming
into force of the Conservation Act, the High Court committed
error in holding that the leases are in violation of the
Conservation Act. Both these questions have been considered
in detail by us in Civil Appeal Nos. arising out of S.L.P @
Nos.17080-81 of 1995 and for the reasons given therein and
in view of the conclusions in the said appeals to the effect
that the word `person’ used in Section 3(1)(a) of regulation
does not include the State Government, and therefore, the
prohibitions contained in the said Regulation with regard to
transfer of land in favour of a non-tribal will not apply to
the transfer of land made by the Government for the purpose
of mining lease, the conclusion of the High Court on this
score is erroneous. But so far as the question of
applicability of the conservation Act is concerned, in view
of our conclusion on the said question in the appeals
arising out of SLPs referred to earlier (Samatha Vs. State
of A.P. & Ors.) the conclusion of the Court in the impugned
judgment has to be sustained. In view of the inquiry report
and the stand taken by the state Officials the land over
which the appellant was permitted to carry on mining
activities is a forest land and before grant of lease in
favour of the appellant no approval of the Central
Government has been taken. It is no doubt true that
Conservation Act came into force much later than the grant
of mining lease in favour of the appellant, but in view of
the general directions issued by this court in T.N.
GODAVARMAN THIRUMULKPAD Vs. UNION OF INDIA & ORS. in Writ
Petition No. 202 of 1995, the mining activities being a user
of the forest land for non-forest purpose has to be stopped
and in case it is intended to continue the mining activities
the same can be done only after referring the matter to the
appropriate authority of the Central Government and getting
the permission of the same. In this View of the matter the
conclusion of the high Court in the impugned judgment so far
as violation of conservation Act is concerned is
unexceptionable, and therefore, the said conclusion is
upheld. Necessarily, therefore, the ultimate direction given
by the High Court remains unaffected notwithstanding
conclusion of the High Court on the first question with
regard to the applicability of the provisions of the
regulation having been reversed by us. In the premises as
aforesaid this appeal is dismissed but in the circumstances
there will be no order as to costs.