Ecolex Logo
The gateway to
environmental law
Search results » Jurisprudence

A. Chowgule and Co. Ltd. Vs. Respondent: Goa Foundation and Ors.

Country/Territory
India
Type of court
National - higher court
Date
Aug 18, 2008
Source
UNEP, InforMEA
Court name
Supreme Court of India
Seat of court
New Delhi
Judge
Tarun Chatterjee
Harjit Singh Bedi.
Reference number
2008(4)AWC3638(SC), JT2008(9)SC175, 2008(11)SCALE482
Language
English
Subject
Land & soil, Mineral resources, Forestry
Keyword
Land-use planning Land tenure Forestry protection measures Mining Forest management/forest conservation Social forestry/community forestry Forest service/forest officers Foreign land tenure
Abstract
The appellant is a company engaged in the mining, processing and export of iron ore. In 1979, the appellant established a 100 per cent export oriented unit in Sanguem Taluka situated at a short distance from its existing mines. The Government of Goa signed a memorandum of lease dated 1st November, 1989 by which 12 ha. were leased to the company for the project. The appellant on 7th of February 1990, entered into a contract with a Japanese Corporation for the export of processed iron ore. A No Objection Certificate from the Goa State Pollution Control Board was obtained on 15th April 1991 and a Sanad dated 10th July 1991 was also issued by the Deputy Collector of Goa permitting the use of the land for non-agricultural purposes upon. The Goa Foundation filed a Public Interest Writ Petition on the grounds that the 12 ha. of land comprised a rich forest area and hence all the actions conducted by the company including the memorandum of lease were illegal as no permission had been procured under the provisions of the Forest Conservation Act, 1980. Pursuant to the filing of the writ petition, the State Government applied for permission for diversion of the forest area and also proposed to raise compensatory afforestation in 1 ha. of non-forest area. While the matter was before the court, the Ministry of Environment and Forests, on 25th May, 1993 granted approval in principle for diverting 4.44 ha. of forest land within the lease. In the meanwhile, the company shifted the beneficiation plant from the said plot to another location in another village. The High Court disposed of the petition on 24th July, 2000 quashed the agreement dated 1st November, 1989 and held that the lease granted in favour of respondent was still born, null and void. It also directed the Chowgule Co. to restore the land to its original use. Hence, the present appeal. The Supreme Court found no infirmity with the High Court order and dismissed the appeal on the ground that for the diversion of any forest land and its use for some other purpose, prior approval from Central Government is required and a lease obtained otherwise will be null and void. Based on Section 2 of the Forest Act and the relevant Rules, prior approval is required for the diversion of any forest land and its use for some other purpose. This is further fortified by a look at Rule 4 which provides that every State Government or other authority seeking prior approval under Section 2 of the Act shall submit a proposal to the Central Government in the prescribed form and Rule 6 stipulates that the proposals would be examined by a committee appointed under Rule 2-A within the parameters and guidelines postulated in Rule 5. There is nothing on record to suggest that this procedure had been adopted. Admittedly also the approval for 4.4 hectares had been obtained long after the lease deed had been executed on 1st November 1989 and there is no suggestion that even for this limited area the procedure envisaged under Rules 4, 5 and 6 had been followed. After the coming into force of the Act, the renewal of a pre-existing mining lease in a forest area can be granted only if the requirements of Section 2 are satisfied. It is therefore obvious that the claim of the appellant confined only to 4.44 hectares is also untenable and that in any case, the benefication plant to which this area was to be attached had been shifted from its earlier proposed location. Even assuming that some approval was granted with respect to 4.44 hectares of land in the year 1997, it would not amount to prior approval in terms of the Act and the Rules. The Supreme Court made significant observations on the offer of the company to conduct afforestation on non-forest land. It observed that the re-forestation or afforestation that is being carried out in India does not meet fundamentals and the planting of new trees to match the numbers removed is too simplistic and archaic a solution, as in the guise of compensatory replantation, local varieties of trees are being replaced by alien and non-indigenous but fast growing varieties, such as poplar and eucalyptus which make up the numbers but cannot satisfy the needs of the environmental system. It must be borne in mind that both re-forestation and afforestation envisage a resurrection and re-plantation of trees and other flora similar to those which have been removed and which are suitable to the area in question. The removal of the existent forest or trees suited to the local environment have destroyed the eco-system dependent on them. This is evident from the huge depletion of wild life on account of the disturbance of the habitat arising out of the destruction of the existing forest cover. Equally disturbing is the decrease in the reptilian population as the undergrowth in which it lived and prospered has been destroyed and with the concomitant increase in the rodent population, colossal losses and damage to the farmer in the storage of food grains.
Full text
COU-156248.pdf