A. Chowgule & Co. Ltd vs Goa Foundation & Ors

1. The facts leading to the filing of this appeal are as under:

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 2 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 3 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 4 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 5 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 6 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 7 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:

8. We are, therefore, of the opinion that in the light of the aforesaid emphatic and clear cut observations, and findings of fact, there can be no doubt that the land leased out to the appellant was indeed a forest.

10. We are, therefore, of the opinion that there is no merit in the appeal. It is accordingly dismissed. No order as to costs.