Case: A. Chowgule &amp; Co. Ltd Vs. Goa Foundation &amp; Others

2. The appellant, a company incorporated under the Companies Act, has its registered office at Chowgule House, Mormugao Harbour, Goa and is a recognized star trading house engaged in the mining, processing and export of iron ore. In the year 1979, the appellant took a decision to establish a 100 per cent export oriented unit in Sanguem Taluka situated at a short distance from its existing mines. The process of locating suitable land for the unit took about 10 years and the process for the unit was finally set in motion by a letter dated 21st December 1988 from the Collectorate of South Goa, Revenue Department to the Inspector of Survey, Land Records, Mangao-Goa informing the said officer that the Government of Goa had decided to lease an area of 15 hectare out of 26.4675 hectares to the appellant under Survey No. 12 of Potrem Village in Sanguem Taluka and directions were issued that the area be demarcated and the other formalities complied with. On 17th August 1989, the appellant addressed a letter to the Secretary for Industrial Approvals, Ministry of Industries of the Central Government about the proposal to set up an integrated unit including a benefication plant at Tuduo Mines for the production of saleable iron ore at a cost of Rs.25 crores and to operate it as a 100 per cent export oriented unit. A formal letter of intent was also issued to the appellant on 25th January 1991. Pursuant to the decisions taken, a Memorandum of Lease dated 1st November 1989 was executed between the Governor of Goa and the appellant whereby an area of 12 hectares was leased out for the purpose of ancillary work connected to mining and for that purpose the appellant was authorized to construct the necessary civil structures. The appellant also, 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 payment of Rs.6 lakhs by way of conversion fees. It is the case of the appellant that pursuant to the aforesaid administrative sanctions and decisions, machinery worth Rs.12 crores was imported for the operation of the project. At this juncture Respondent Nos.1, 2 and 3 filed Writ Petition No.113 of 1992 in public interest before the Goa Bench of the Bombay High Court praying for a writ of certiorari for quashing the Memorandum of Lease dated 1st November 1989 and for several other reliefs. Respondent No.5 herein, the Conservator of Forests, Goa filed an affidavit before the High Court pointing out that the 12 hectares of land which had been leased to the appellant had already been classified as Revenue Land meant for Dry Crops and was not a forest area, as had been contended by the writ petitioners/respondents 1,2 and 3. On 26th March 1992, the High Court adjourned the matter for 8 weeks in view of the statement made by the Advocate General that the State Government proposed to take up the matter with the Central Government so as to secure the necessary approvals postulated under section 2 of the Forest Conservation Act, 1980 (hereinafter called the Act) and as such it was unnecessary to proceed with the writ petition. The High Court, accordingly, adjourned the matter for 8 weeks without any discussion on merits with liberty to all parties to press their submissions in case the need arose. Pursuant to the assurance given by the Advocate General to the High Court, the State Government wrote to the Ministry of Environment and Forest, New Delhi on 7th May 1992 pointing out that out of the 12 hectares leased to the appellant a small area of about 5000 square meters would be used for the erection of the benefication plant and that appellant had also taken to raise compensatory afforestation in one hectare in non-forest area in Survey No.42 Santanu Village of Sangueme Taluka and as the unit was likely to earn foreign exchange and the broad sanctions had already been given by the concerned quarters, clearance under section 2 of the Act be accorded. The writ petition aforesaid once again came up for consideration on 17th November 1992 and while granting some interim relief to the writ petitioners-respondents, it was directed that the petition be listed for final disposal in January 1993. The Ministry of Environment and Forest, in the meanwhile, vide its letter dated 25th May 1993 conveyed its approval in principle for diversion of 4.44 hectares of forest land from Potrem village subject to several conditions which were statedly complied with by the appellant and a final decision allowing the diversion was also conveyed to the appellant on 7th November 1997. Writ Petition No.113 of 1992 came up for final disposal before the Goa Bench on 21st July 2000 and was duly allowed and writ of certiorari was issued quashing the lease agreement dated 1st November 1989. It was, inter-alia, held that the various approvals/sanctions granted to the appellant by the Industries Department or by the Collector could not, by any stretch of imagination, be construed as permission for deforestation of the forest area, as envisaged by section 2 of the Act as the said Act required prior approval of the Central Government after the procedure given in Rules 4, 5 and 6 of The Forest (Conservation) Rules 1981 (hereinafter called the Rules) had been followed. The plea of the appellant that the area concerned was not a forest was also repelled with the observations that an average of 250 trees per hectare were growing on the land, as was clear from the affidavit filed by the Deputy Conservator of Forest, R.Nagbhushan Rao and that the entire area was heavily forested with 3000 trees and was in addition contiguous to the Government forests. The Bench also observed that merely because the land had been described as Dry Crops Land would not change the nature of the land as it was apparently a wrong description more particularly as Section 2 ibid referred not only to forests but to forest land as well. For arriving at its decision, the Division Bench relied upon the decision of this Court in T.N.Godavarman Thirumulkpad vs. Union of India & Ors. (1997) 2 SCC 267 in which it was held that the term forest was to be given an extended meaning so as to cover all statutorily recognized forests whether designated as reserved, protected or otherwise for the purpose of section 2 of the Act. Having held as above, the Division Bench observed that the 12 hectares being forest land, prior permission under section 2 of the Act was the sine qua non for the execution of the lease deed dated 1st of November 1989 and finally concluded as under:Does the subsequent act of granting permission communicated by letter of 18th May 1993 enable respondent No.4 to carry on with those development activities on the 4.44 hectares? The letter of 8th July 1997 seeks prior approval of Central Government. In the instant case as we have been there is no prior approval for entering into a lease deed any of the term of lease can be set out. Condition No.1 shows that the legal status of the forest land shall remain unchanged. The permission is co-terminus with lease granted by the State Government with effect from 1st November 1989. Therefore, it proceeded on the footing that prior approval is being sought. In the instant case the records show that prior approval was not taken. In that context mere permission granted for development will be of no consequence. It is true that the petitioner has not challenged the subsequent permission granted. However, what is material to notice is that the area was a forest. In spite of that, without prior permission, the respondent No.1 granted the lease in favour of the respondent No.4. The lease was contrary to law. Once the lease was contrary to law, the question of the State Government applying at the behest of respondent No.4 for permission would not ariseEven otherwise the land is situated to an adjacent Government forest and the land is sought to be used for setting up of a beneficiation plant which involves dust and water pollution and consequent destruction of the adjoining forest. It will substantially affect the environment and ecology of the area. This, in fact, would affect the right to life. The petitioners in the petition have averred that the cutting of trees without obtaining permission was resorted to. In matters of ecology and environment and considering the principle of sustainable development, no person or organization, however, high and mighty they may be, can be permitted to flout the law of the land. Considering that, in our opinion, the lease granted in favour of respondent No.4 is still born, null and void. Respondent No.1 is directed to restore the land to its original use. Rule made absolute in the aforesaid terms. In the circumstances, there shall be no order as to costsIt is these circumstances that the appeal is before us.

Reasoning: can be no doubt that the land leased out to the appellant was indeed a forestSome arguments have flown during the course of the hearing that the appellants were willing to reforest an identical area in case the lease was allowed to be effectuated. In this connection, some observations need to be made. The basic question is as to what is implied by the terms afforestation or re-forestation. Is it merely the replacement of one tree with another or does it imply some thing a little more complex? Reforestation is the restocking of existing forests and woodlands which have been depleted, with native tree stock, whereas afforestation is the process of restoring and recreating areas of woodlands or forest that once existed but were deforested or otherwise removed or destroyed at some point in the past. In the present case, we are concerned with afforestation and the promise of the appellant to plant trees in an equivalent area. We, however, find from experience and observation that the re-forestation or afforestation that is being carried out in India does not meet the 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 our 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. There is yet another circumstance which is even more disturbing inasmuch as the removal of existing 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. A small but significant example is the destruction of plantations alongside the arterial roads in India. 30 years ago all arterial roads had huge peripheral forest cover which not only provided shade and shelter to the traveller but were a haven to a large variety and number of birds and other wild life peculiar to that area. With the removal of these plantations to widen the roads to meet the ever growing needs of the traffic, and their replacement by trees of non-indigenous varieties, (which are often not eco or bird friendly) in the restricted and remaining areas bordering the widened roads, the shelter for birds has been destroyed and where thousands of birds once nested and bred, there has been a virtual annihilation of the bird life as well. Those who live in North India would do well to remember that a drive along the Grand Trunk Road, National Highway No.1, northwards of Delhi, particularly during the hours of dawn or dusk, was as if through an aviary with thousands of birds representing a myriad of species with their distinctive calls reaching a crescendo during early evening and gradually fading into silence as darkness set in. Sadly, all that can now be seen are crows feeding on the decaying and mutilated carcasses of dogs and other animals killed by speeding vehicles. 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 and in the storage of food grains