Uttarakhand High Court

Prakash Singh Bisht vs Union Of India And Others on 9 October, 2023

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                              AND
             HON'BLE SRI JUSTICE RAKESH THAPLIYAL


                          09TH OCTOBER, 2023

          WRIT PETITION (PIL) No. 187 OF 2020

Prakash Singh Bisht.
                                                                      ...Petitioner

                                         Versus

Union of India and others.
                                                                   ...Respondents

Counsel for the petitioner. : Mr. Prabhat Bohra, learned counsel.

Counsel for the Union of India. : Mr. Atul Bhatt, learned Standing Counsel for the Union of India.

Counsel for the State of : Ms. Puja Banga, learned Brief Holder Uttarakhand. for the State of Uttarakhand.

Counsel for respondent no. 7. : Mr. Dharmendra Barthwal, learned counsel.

ORDER : (per Sri Vipin Sanghi, C.J.)

The petitioner has preferred the present Writ

Petition to seek the quashing of the Government

Communication bearing No. 883(1)/x-3-2011/8(21)/2010

dated 04.10.2011, issued by respondent no. 2, and also to

seek a declaration that the Government of Uttarakhand is

not entitled to lease out protected forest land, as

protected by Government Order No. 86F/638 dated

17.10.1893, for any non-forest purpose, without obtaining the prior approval of the Central Government, in terms of

Section 2 of the Forest (Conservation) Act, 1980. The

petitioner also assails the mining lease dated 18.08.2015

granted by the State Government in respect of the

protected forest land, without obtaining the prior approval

of the Central Government. Other consequential reliefs

have been sought in pursuance of the aforesaid two

reliefs.

2. This Writ Petition has been preferred by the

petitioner in public interest. The case of the petitioner is

that the lease dated 18.08.2015, granted by the State

Government in favour of respondent no. 7, inter alia, over

an area of 6.25 Hectares, which is a protected forest,

falling in Khasra Nos. 602, 608, 828m, 645, 727 & 749 in

Village Gauna, Tehsil & District Chamoli. The petitioner

has made specific averments in this regard in paragraph

nos. 9 & 10 of the Writ Petition. The case of the petitioner

is that any land falling in a protected forest, could not

have been leased out for mining purposes by the State

Government.

3. On 31.10.2020, this Court had issued notice. In

pursuance of the notice, a counter affidavit has been filed

by respondent no. 5, i.e. the Divisional Forest Officer,

Badrinath Forest Division, Gopeshwar, District Chamoli. In

paragraph no. 10 of the para-wise reply, the said

respondent has not offered any response to the averments

made in paragraph nos. 9 & 10 of the Writ Petition.

However, in paragraph no. 13, the said respondent has

admitted that lease had been granted for mining of

soapstone, inter alia, on land admeasuring 6.25 Hectares,

which falls in protected forest area. It is stated that

mining activities can be carried out on the said reserve

forest area "only after adopting the procedure and transfer

of land". Therefore, there is an admission by the State

that the mining lease granted in favour of respondent no.

7 covers the area to the extent of 6.25 Hectares of

protected forest land.

4. The petitioner has placed on record the proposal

submitted by the petitioner for Environment Impact

Assessment/ Environment Management Plan of Proposed

Soapstone Mine. The said Environment Impact

Assessment proposal, in respect of 6.25 Hectares of land

in question, states, under the column "Compliance", as

follows :-

"6.250 ha of the land out of 10.407 ha was under forest land as per the Indian Forest Act 1878, Notification No 869 F/638 dated 17.10.2893. However later on this was ruled out by the G.O. No. 883(1)/x-3-2011/8(21)/2010 dated 04.10.2011 letter stating the same has been attached as Annexure III.

At present there is no forest land involved in ML area, the entire lease area is revenue land and govt. land."

5. The aforesaid would show that, even according

to respondent no. 7, the area classified as "Protected

Forest", under the notification dated 17.10.1893, was later

claimed to be not a Protected Forest by virtue of the

Government Order bearing No. 883(1)/x-3-

2011/8(21)/2010 dated 04.10.2011.

6. The petitioner has placed on record, firstly, the

Government Notification dated 28.09.2011, whereby, in

exercise of power conferred by Section 29 of the Indian

Forest Act, 1927, read with Section 21 of the General

Clauses Act, 1897, the Governor was pleased to rescind

Notification No. 869 F/638 dated 17.10.1893, issued under

Section 28 of the Indian Forest Act, 1878.

7. This notification was quashed by this Court in

Writ Petition (M/S) No. 2764/2011, vide order dated

26.10.2017, on the basis that the State Government was

required to comply with the mandatory provisions of the

Forest (Conservation) Act, 1980, by taking mandatory

permission from the Central Government, which was not

done. The Government Order (referred to in the aforesaid

proposal submitted to the Environment Impact

Assessment Committee) dated 04.10.2011, has also been

placed on record, which shows that the same only seeks to

issue a clarification, post issuance of the Notification dated

28.09.2011, which, as noticed hereinabove, has been

quashed by this Court. Therefore, the Government Order

dated 04.10.2011 really does not survive, since it is

premised on Notification dated 28.09.2011, which already

stands quashed for lack of authority in the State

Government. Reliance placed by the petitioner in its

proposal to the Environment Impact Assessment

Committee, on the Government Order dated 04.10.2011,

therefore, seems to be of no avail.

8. It appears that the Environment Impact

Assessment Committee has not addressed the aforesaid

aspects, while dealing with the petitioner's proposal. The

petitioner has also placed on record a copy of the terms

and conditions of the mining lease. Clause 5 of the

Conditions for Operational Phase states that "the mining

shall b e carried out by open cast manual method without

adopting drilling and blasting operation. The use of hand

held mechanically driven equipment is permitted. The use

of any electrically driven machinery shall be remain

prohibited and only hand held tools shall be used for

extraction of the mineral."

9. The case of the petitioner is that respondent no.

7, however, violated these conditions. The petitioner has

placed on record photographs, which show the deployment

of heavy machinery, not only for the purpose of making

inroads into the forest area, but also the photographs

carrying out mining activities. Photographs have also

been filed along with the urgency application.

10. The submission of Mr. Dharmendra Barthwal,

learned counsel for respondent no. 7 is that the counter

affidavit of respondent no. 7 is ready, and will be filed

within a day. He submits that the mining lease has been

granted after carrying out of Environment Impact

Assessment even in respect of the 6.25 Hectares of land,

as aforesaid. In the proposal submitted by the petitioner

for Environment Impact Assessment, it is stated that at

present there is no forest land involved in the mining lease

area, and the entire lease area is Revenue Land and Forest

Land. On that basis, the State Level Environment Impact

Assessment Authority issued the order dated 03.03.2016,

granting permission for carrying out the mining activity

through open cast mining method.

11. Prima facie, this submission of Mr. Barthwal

does not appear to be correct, for the reason that the

Environment Impact Assessment Committee has

proceeded to place reliance on Government Order dated

04.10.2011, which, as aforesaid, does not survive in the

light of the quashing of the notification dated 28.09.2011

by this Court in Writ Petition (M/S) No. 2764/2011, vide

order dated 26.10.2017. As aforesaid, the Government

Order dated 04.10.2011, merely seeks to clarify the

position, post issuance of the Notification dated

28.09.2011, which stands quashed. Therefore, the

conclusion drawn by the Environment Impact Assessment

Committee on the basis of the statement of respondent

no. 7 that "at present there is no forest land involved"

may not be correct. Moreover, the stand of respondent

no. 7, as aforesaid, is contrary to the stand taken by

respondent no. 5-Divisional Forest Officer, which we have

already taken notice of hereinabove. The photographs

placed on record indeed show that for carrying out mining

activity, there is destruction of forest cover.

12. The Supreme Court has, as early as in 2009, in

Nature Lovers Movement v. State of Kerala and

others, (2009) 5 SCC 373, observed in paragraph no.

47, after noticing several decisions on the Environment

(Protection) Act, 1980, as under :-

"47. The ratio of the abovenoted judgments is that the 1980 Act is applicable to all forests irrespective of the ownership or classification thereof and after 25- 10-1980 i.e. the date of enforcement of the 1980 Act, no State Government or other authority can pass an order or give a direction for dereservation of reserved forest or any portion thereof or permit use of any forest land or any portion thereof for any non-forest purpose or grant any lease, etc. in respect of forest land to any private person or any authority, corporation, agency or organisation which is not owned, managed or controlled by the Government."

13. Therefore, it appears to us that the State

Government could not have, by issuing the Notification

dated 28.09.2011, taken away the protected forest, and

converted the same into any other kind of land, without

the prior approval of the Central Government. Prima

facie, it appears to us that the area to the extent of 6.25

Hectares, falling in a protected forest, has, indeed, been

leased out under the mining lease in question, which could

not have been done.

14. We are, therefore, inclined to direct that in the

said 6.25 Hectares of land, particulars whereof have

already been noticed hereinabove, falling in Village Gauna,