In the High Court of Judicature at Bombay Panaji Bench

In the High Court of Judicature at Bombay Panaji Bench

IN THE HIGH COURT OF JUDICATURE AT BOMBAY PANAJI BENCH

GOA

WRIT PETITION No. 113 of 1992

  1. The Goa Foundation, being a

Registered Society registered

under the provisions of the

Societies Registration Act,

1860 having its office at

Rm. 7, Above Mapusa Clinic,

Mapusa 403 507 Goa.

  1. Peaceful Society, being a

Registered Society registered

under the provisions of the

Societies Registration Act,

1860 having office at Bandora,

Ponda, Goa.

  1. Dr. Claude Alvares, Indian

Inhabitant, resident of Parra,

Bardez, Goa.…. Petitioners

Versus

  1. State of Goa, through Secretary

Revenue Department, Secretariat,

Panaji, Goa.

  1. The Conservator of Forests,

Junta House, Panaji Goa.

  1. The Secretary, Ministry of

Environment and Forests,

Paryavaran Bhavan, C.G.O.

Complelx, Lodi Road,

New Delhi 110 003.

  1. Chowgule and Co., with registered

office at Chougule House, Marmugao,

Goa.…. Respondents

Mrs. Norma Alvares for the petitioners.

Mr. J. Dias, Advocate-General, with

Mr. H.R. Bharne, Addl. Government Advocate for respondents

Nos. 1 & 2.

Mr. R.N.S. Khandeparkar, Standing Counsel for respondent

No. 3.

Mr. S.K. Kakodkar, Senior Advocate with

Mr. R.V. Kamat for respondent No. 4.

CORAM: A.V. SAVANT

and

Dr. E.S. da SILVA, JJ.

DATED: 17th November, 1992.

ORAL ORDER : (PER A.V. SAVANT, J.)

This Petition, in the nature of Public Interest Litigation, has been pending in this Court since March, 1992. We have heard Mrs. Alvares for the petitioners, the learned Advocate-General for respondents Nos. 1 & 2, Mr. Khandeparkar for respondent No. 3 and Mr. Kakodkar for respondent No. 4.

2. The petitioners, who claim to be environmentalists and tree lovers, seek the cancellation of the Agreement dated 1st November 1980 entered into between the first respondent State and the 4th respondent Company in respect of certain land for setting up a beneficiation plant for iron ore. Mrs. Alvares for the petitioners has contended that the lease is in violation of Section 2 of the Forest (Conservation) Act 1980, (for short, the 1980 Central Enactment), as also the provisions of the Goa, Daman & Diu Preservation of Trees Act, 1984 (for short, the 1984 Goa Enactment). She has particularly invited our attention to clause (iii) of section 2 of the 1980 Central Enactment and section 8 of 1984 Gao Enactment. Relying upon the purpose of the lease, as set out in the Lease Deed, which is an ancillary work connected with mining and the Affidavit of Shri R. Nagbhushan Rao, Deputy Conservator of Forests, the petitioners contend that there is a clear violation of both the said 1980 Central Enactment and the said 1984 Goa Enactment. Finally, the petitioners seek to rely upon the Division Bench Judgment dated 27th November 1990 in Writ Petition No.162 of 1987, to which of us (Dr. Justice de Silva) is a party.

  1. As against this, Mr. Kakodkar appearing for the 4th respondent Company contends that, in the first place, clause (iii) to (v) of section 2 of the 1980 Central Enactment were inserted on 15th March 1989 and the decision to grant the lease was really made in December 1988 though the lease is of 1st November, 1989. In this connection, reliance is placed by Mr. Kakodkar on the letter dated 21st December 1988 issued by the Deputy Collector of south Goa. Mr. Kakodkar also relies upon the Affidavit of Shri R. Nagbhushan Rao, who states in Para 2 that the lease was granted in December 1988.
  1. Shri Kakondkar further contends that the 4th respondent has obtained the industrial license on 25th January 1991 in accordance with the provisions of the Industries (Development and Regulation) Act 1951 for the manufacture of iron ore concentrate and lumps. He contends that the subject “industries” falls under Entry 52 of List I of the Seventh Schedule. As against this, the subject “forests” fell under Entry 17A in List III viz. the Concurrent List. Relying upon the provision of Article 246 of the Constitution of India, the learned Counsel contends that the provisions of the Industries (Development and Regulation) Act 1951 shall have an overriding affect over the provisions of both the 1980 Central Enactment and the 1984 Goa Enactment. The learned Counsel further contends that in the face of the guidelines issued by the Central Government under the 1980 Central Enactment, it is not possible to contend that the lease is in violation of even clause (ii) of section 2 of the said 1980 Central Enactment. He has sought to place reliance on the doctrine of contemporareo exposito and has invited our attention to a paragraph viz. Para 18 at Pages 786 and 787 of the Report in the Judgment of the Supreme Court in the case of State of Madhya Pradesh and another vs. G.S. Dall & Flour Mills, reported in A.I.R. 1991, Supreme Court, 772. Mr. Kakodkar contens that in the light of the said decision of the Supreme Court, at any rate, the ratio of the Division Bench decision in Writ Petition No.162 of 1987 decided on 27th November 1990 (supra) can no longer have any application to the facts of the present case.
  1. Finally, Mr. Kakodkar contends that there are gross laches on the part of the petitioners and though the lease has been executed as far back as in November 1989, the petition has been filled as late as on 9th March 19992. He has invited our attention to the Affidavit-in-Reply dated 16th March 1992 filed on behalf of the respondent Company and has contended that the 4th Respondent has incurred several and huge liabilities running into crores of rupees involving third parties as a result of grant of the lease in December 1988 and the lease itself being executed on 1st November 1989. The learned counsel, therefore, contends that on account of laches and delay alone, the Petition should be dismissed in limini.
  1. The learned Advocate General has contended that, in the first place, the guidelines issued by the Central Government cannot restrict the plain words of a statute. If the provisions of the Forest (Conservation) Act 1980 or the Goa, Daman & Diu Preservation of Trees Act 1984 are clear and unambiguous, they cannot be given a restricted meaning by reporting to the guidelines issued by the Central Government or by relying upon the principle of contemporareo exposito. Secondly, he contends that the principle of contemporareo exposito was normally applied in construing ancient statues, but not while interpreting acts which are comparatively of a recent origin. In this behalf, he has invited our attention to the observations of the Supreme Court in Para 45 of the judgment in the case of M/s. J.K. Cotton Spinning and Weaving Mills Ltd. and another Vs. Union of India and others, reported in A.I.R. 1988, Supreme Court, p.191.
  1. The learned Advocate General further contends that grant of license under the Industries (Development & Regulation) Act 1951 under the letter dated 25th January 1991 is in respect of the establishment of a new undertaking in Tehsil Sanguem, District: South Goa without mentioning the precise site of the undertaking. Hence, he contends that it is open to the concerned Government to invoke the application of the provisions of the 1980 Central Enactment or the 1984 Goa Enactment while considering the question of a particular site.
  1. Having heard all the learned Counsel at some length, it is not possible for us, at this stage, to express any opinion on the rival contentions that are raised. Suffice it to say that having regard to the controversy raised before us and particularly, having regard to the judgment of the Division Bench in Writ Petition No. 162 of 1987, decided on 27th November 1990, the petitioners have made out a prima facie case. Hence, rule.
  1. On the question of interim relief, it is true that Mr. Kakodkar has made a grievance about laches and delay resulting in the fourth respondent having incurred huge liabilities running into crores of rupees involving third party rights. However, permitting the fourth respondent to go ahead with the developmental activity would virtually frustrate to Writ Petition. Interests of justice would, therefore, require us to grant interim relief in terms of prayer ( c). Hence, we grant it. At the same time, having regard to the peculiar facts and circumstances of the case and the pleadings before us, we are of the view that the hearing in this Writ Petition should be expedited. Accordingly, we expedite the final hearing of this Petition and further give liberty to this parties to apply for a fixed date of hearing in January, 1993.

10. At this stage, Mr. Kakodkar makes to submissions

(i)He says that pending admission of this Petition, the 4th respondent has approached the State Government on 2nd November 1992 and the papers are being processed to the Central Government for necessary sanction. If that be so, we direct that in the event of any subsequent developments, the parties to this Petition are free to approach this Court for appropriate directions.

(ii)He next contends that in the event of the Petition being dismissed, the petitioners should be saddled with heavy damages for filing such a

frivolous petition. We think that it is needless to say that this point will be considered by the Bench hearing the Petition finally.

Sd/-

(A.V. SAVANT, J.)

Sd/-

(Dr. E.S.da Silva, J.)

2000(2) Goa L.T. 386

IN THE HIGH COURT OF BOMBAY AT GOA.

WRIT PETITION NO.113 OF 1992

1. The Goa Foundation, being

a Registered Society

under the provisions of the Societies Registration Act, 1860, having its office at Room 7, above Mapusa Clinic, Mapusa.

  1. Peaceful Society, being a Registered Society registered under the provisions of the Societies Registration Act, 1860, having its office at Bandora, Ponda, Goa.

3.Dr. Claude Alvares, Indian Inhabitant, r/o Parra, Goa.

Versus

1. State of Goa through Secretary, Revenue Department, Secretariat, Panaji, Goa.

2. The Conservator of Forests, Junta House, Panaji, Goa.

3. The Secretary, Ministry of Environment and Forests, Paryavaran Bhavan, C.G.O. Complex, Lodi Road, New Delhi.

4. Chowgule & Co., registered office at Chowgule House, Mormugao, Goa.

…Petitioners

... Respondents.

Mrs. Norma Alvares, Advocate for the Petitioners.

Shri H.R. Bharne, Government Advocate for the Respondents 1 and 2.

Shri Joseph Vaz, Addl. Central Govt. Standing Counsel for the Respondent No.3.

Shri S.K. Kakodkar, Senior Advocate with Shri R.V. Kamat, Advocate for the Respondent No.4.

A.Constitution of India:- Arts. 21, 48-A; Community International Law

Principles enunciated at Stockholm Convention & Rio Declaration have been considered by the Supreme Court as enforceable in the Municipal I Domestic Courts. "Sustainable development" is recognised as part of our Municipal law involving the Precautionary Principle, the Polluter Pays Principle, (paras 7,8)

Setting up beneficiation plant on forest land will substantially affect environment & ecology of the area which would affect the right to life, (para 17)

B.Forest (Conservation) Act 1980:- S.2; Industries (Development &
Regulation) Act, 1951:- S.ll

Permission by Ministry of Industry, Government of India cannot be said to be clearance by the Government of India under the Forest (Conservation) Act, 1980. (para 11)

C.Constitution of India:- Sch. 7, List 11, Entry 19; Forest (Conservation)
Act, 1980:- S.2

Wrong description of land cannot prevent it from being a forest, if it is a forest. A forest does not depend merely on particular number of trees. The word "forest" must be understood according to its dictionary meaning, (paras 12, 13 & 14)

D.Contract Act, 1872:- S.23; Forest (Conservation) Act, 1980:- S.2

As land is a forest, State of Goa could not have created a lease without prior permission ulS.2of the Central Government and therefore the contract / lease

was unlawful and a nullity in law.

Cases ReferredChronological

Paras

1. A.P Pollution Board v. Prof. Nayudu 8

(1999) 2 SCC 718

2. Enviro-Legal Action v. Union of India

JT 1996(4) SC 263

8, 16

3. Vellore Citizens Forem v. Union of India.

AIR 1996 SC 2715

8

4. S. Jagannath v. Union of India

(1996) 6 SCC 167

8

5. T. Thirumulkpad v. Union of India

(1996) 9 SCC 269

13

6. Ambica Works v. State of Gujarat

AIR 1987 SC 1073

11

7. L.I.C. of India v. Escorts Ltd

AIR 1986 SC 1370

15

8. Janu Waghmara v. State of Maharastra

AIR 1978 Bom. 119 12

Coram: F.I. REBELLO & V.C. DAGA, JJ.

Date: 21st July 2000.

JUDGMENT: (PER REBELLO, J.)

Petitioners 1 and 2 are Societies registered under the Societies Registration Act. Petitioner no. 2 is also an environmental society. Members of both the petitioners are nationals and citizens of India. The objects of the petitioner no. 1, amongst others, are to halt the ecological degradation of environment and to formulate and implement programmes for the rehabilitation development of the Goan environment and to restore an ecological balance. Members of both the petitioner societies as citizens of India have the fundamental duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures.

2. Respondent no. 1 granted to respondent no. 4 a lease of land bearing survey no. 12 of village Potrem in Sanquem Taluka for the purpose of erecting a beneficiation plant and purposes related therewith. Petitioners pleaded that a rich forest lies on the said plot. Respondent no.2 is responsible for the conservation of the forest wealth in Goa State particularly the conservation of the ecologically fragile areas in which the lease falls. Respondent no.3 is the authority which issues clearance under the Forest (Conservation) Act. The plot in question, it is contended, constitutes one of the last remaining vestiges of primary forest in the ecologically sensitive region of the western ghats. The plot leased has more than 60% density of trees which means the forest is of the nature of a closed forest system. On account of this respondent no. 1 has given his intent to convert the contiguous plots into reserved forests. Survey no. 12, overnight and contrary to Government intent, was mysteriously leased to respondent no. 4. It is averred this was done after a revenue official in collusion with respondent no.4 filed a fraudulent report underestimating the number of trees on the plot. Petitioners pray that a copy of the report be placed on record.

When the lease was granted the diversion of forest land to non-forestry purposes in private lands or so called private forest and revenue lands

was thought not to come in the purview of the Forest (Conservation) Act, 1980. ^n account of Judgment passed by this Court, the position has now altered. Felling of trees in the State of Goa is also governed by the Goa, Daman and Diu Preservation of Trees Act, 1984. Respondent no.4, it is contended, on inquiries made by the petitioners with the local people, clear-felled 2 hectares of rich forest illegally and without any permission from any of the statutory authorities. This was in violation of Clause 9 of the lease agreement dated 1st November 1989. This monstrous act of environmental terrorism was followed by using a bulldozer to remove all the roots of the trees. Pits were dug to lay foundation stone for the beneficiation plant without any permission from any authority under the law. The petitioners approached the Court to prohibit the respondent no.4 from further felling any trees from the plot. Forestoncedestroyed, it is contended, cannot be replaced, the beneficiation plant can be relocated. Respondent no.l had to consider as to what was more important, the last few green patches left in this Country which are essential for the survival of the Nation and its environment or the saving of few rupees of the respondent no.4. The environment would be placed at irreparable risk if respondent no.4 was not restrainedfrom proceeding with further development. Respondent no.4 could not proceed with any diversion or change of user without permission under the provisions of the Forest (Conservation) Act, 1980. Therefore the reliefs as prayed for.

3. On behalf of respondent no.4, one T. Ramaswamy, General Manager of Mining Division and its constituted Attorney filed a reply. Various preliminary objections have been raised which are not referred to as, in our opinion, they are to be rejected at the threshold. The Government of Goa, it is contended, granted the lease in December 1988 for setting up a beneficiation plant for iron ore for company's mines at Tudou about 1 kilometre away. The Tudou mines, it is contended, are estimated to contain 78 million tons of low grade iron ore. A formal memorandum of lease was executed by the company on 1st November 1989 and possession of 12 hectares of land was delivered on 6th June 1990. NKK, Japan agreed to purchase the iron ore concentrates and lumps. Government of India on 25th January 1991 issued a letter of intent to the company to treat the company's project as a 100% export oriented unit. On 14th June 1991 the Government of India approved the company's application to obtain suppliers credit for import of capital goods from Okura and Co. ltd. of US $4.26 million. On 10th July 1991 sanad was granted permitting the use ofland for industrial purposes on payment of Rs.6 lakhs. Machinery worth 12 crores for setting up the benefication plant has already been shipped from Sweden on 24th February 1992. The Electricity Department on 4th March 1992 has sanctioned to the company a supply of 33KV power. The company's project is worth Rs.25 crores. The actual plant and access, occupy an area of 1 hectare ofland which must be developed and the beneficiation plant erected immediately failing which the company will suffer huge lossess. The 1 hectare ofland contains about 49 trees and other firewood and shrubs which will have to be felled. It was denied that the said land has 60% of trees. The land was not covered by the Notification in the Government Gazette No. 15, III Series dated 10th July 1986. It was denied that the land in question constitutes one of the last vestiges of primary forest. It was denied that there was any collusion with the revenue official and/or that the revenue official underestimated the number of trees on the plot. There are various other denials which need not be adverted to.

4. R. Nagbhushan Rao, Deputy Conservator of Forest has filed anaffidavit on behalf of respondent no.2. The survey no.12 in the survey recordswas shown as revenue land and classified as land meant for dry crops. When therespondent no.4 started developing the area the Forest Department found thatthey had felled trees standing in the said land without permission being takenunder the Goa Trees and Preservation Act, 1984. A case has been booked againstrespondent no.4 for violation of Forest (Conservation) Act, 1980 as well asPreservation of Trees Act, 1984. What is more material is the averment that theForest Department found that the entire area of 12 hectares is covered by forest,there being on an average 250 trees per hectare and the plot contiguous toGovernment forest. In other words, the 12 hectares had 3000 standing trees.

In reply to the affidavit T. Ramaswamy has filed an affidavit denying that on an average there are about 250 trees per hectare. It is stated that there are about 150 trees per hectare, there was also firewood and undergrowth.

During the pendency of the petition, on 21st June 2000 V.T. Thomas, Deputy Conservator of Forest (South) has filed an affidavit which, according to him, is to place the factual position on record. It is set out that the Government of India by letter No.8/31/93-FC dated 7th November 1997 has conveyed its approval for diversion of 4.44 hectares of the land in favour of M/s. Chowgule and Co.. In view of that approval, the company had to restrict its activities within the area of 4.44 hectares.

Top View