(Prayer: This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to issue a writ of certiorari or any other order or direction, directing to quash or set aside the impugned and reminder letter dated 05/09/2023 bearing no.GABHUE/UNI (KHA.AA)/KAGAGU/BLR/KAGAGU/2348/2023-24/6029 Issued by the 4th respondent director and etc.)
Cav Judgment:
Vibhu Bakhru, CJ.
1. The petitioner has filed the present petition, inter alia, impugning the communications dated 05.09.2023 and 07.07.2023, and the endorsement dated 30.09.2023. The petitioner also prays that directions be issued to respondent Nos. 5 and 6 not to disturb or interfere with the quarrying and stone crushing activities carried on by the petitioner in an area leased under QL No.2348-R1 and the stone crusher licence dated 27.07.2016. In addition, the petitioner seeks directions for the issuance of Mineral Dispatch Permits through the Integrated Lease Management System [ILMS].
2. The controversy in the present petition relates to whether quarrying activities are permissible in the area falling within Survey No. 124 of Hadonahalli Village, Doddaballapura Taluk, Bengaluru Rural District. The petitioner holds a quarry lease [hereafter QL 2348-R1] over an area of 8.20 acres, falling in Survey No.124 of Hadonahalli Village, Doddaballapura Taluk, Bengaluru Rural District [the subject land]. It also holds a stone crusher licence over an extent of 1 acre in Survey No.124 of Hadonahali Village. The quintessential controversy involved in the present petition is whether non-forest activities are permissible on the subject land without obtaining permission under the Forest (Conservation) Act, 1980 [FC Act].
3. The impugned communication dated 07.07.2023 is addressed by respondent No.7 to respondent No.5, inter alia, stating that the subject land falls under a District Forest and therefore, non-forestry activities cannot be undertaken in the said land without the necessary permission under the FC Act. The impugned communication dated 05.09.2023 is addressed by respondent No.4 to respondent No.5 referring to the impugned communication dated 07.07.2023. The said communication also states that the aforesaid issue was discussed at a meeting of the District Stone Crushers Licensing and Regulation Authority and District Task Force (Mines) Committee held on 18.07.2023 and it was decided to take action as per the directions of the Government of Karnataka by submitting a proposal regarding the cancellation of the quarry lease in question-QL 2348-R1.
4. The impugned endorsement dated 30.09.2023 was issued by respondent No.5 calling upon the petitioner to obtain and submit the Forest Clearance Certificate under Rule 8(2) of the Karnataka Minor Mineral Concession Rules, 1994 [KMMC Rules] in respect of QL 2348-R1.
5. As noted above, the principal question to be addressed is whether the subject land is a part of forest lands.
PREFATORY FACTS
6. The petitioner is a partnership firm-Sri Anjanadri Stone Crushers, constituted on 12.04.2013 and registered with the Registrar of Firms on 18.04.2013. The quarry lease over the subject land is initially granted to Sri H. Krishnamurthy. The said lease was transferred to the petitioner pursuant to an order dated 15.11.2014 passed by respondent No.5.
7. Respondent No.6 granted the petitioner a Stone Crusher Licence in Form C over an area of 1 acre in government land falling in Survey No.124 of Hadonahalli Village, Doddaballapura Taluk, Bengaluru Rural District, pursuant to the said area being declared as a safer zone for establishing a stone crusher unit. The petitioner also obtained a Consent for Operation [CFO] from the Karnataka State Pollution Control Board [KSPCB].
8. The Karnataka Regulation of Stone Crushers Act, 2011, was amended in the year, 2020 [Karnataka Act No.28/2020], and by virtue of the said amendment, the stone crusher licence issued to the petitioner was deemed to be extended for a period of 20 years. The petitioner's licence is valid till 31.03.2036.
9. The petitioner applied for renewal of the quarry lease, and pursuant to its application, a joint inspection was conducted by respondent No.5 along with revenue officials. Thereafter, a spot inspection report cum revenue opinion dated 28.04.2015 was submitted. It was observed that the leased area is a Government Hullubanni which was not transferred to the Forest Department. It is stated thereafter, respondent No.7 issued a No Objection Certificate [NOC] dated 26.06.2015 stating that out of an area of 115.09 acres, which comprises Survey No.124 of Hadonahalli Village, 109.15 acres are entered in the land records [RTC] as Government Hullubanni land. The subject land, which is a part of 109.15 acres, is not included in reserve forest land, land bank or C & D forest land. On the basis of the said NOC and the technical report dated 29.03.2016, the petitioner was granted the quarry lease, QL 2348-R1, and a stone crusher licence.
10. The petitioner has been carrying on its activities since the execution of the lease. However, pursuant to the impugned communications, the concerned authorities have interdicted quarrying and stone-crushing activities and initiated steps to cancel the lease. The petitioner claims that the concerned authorities have blocked the issuance of Mineral Dispatch Certificates pursuant to the impugned communications, and the quarrying and stone crushing activities stand suspended.
RIVAL CONTENTIONS
11. The forest authorities claim that the subject land is forest land and that no non-forest activities can be carried out there. It is also contended on their behalf that the licence was issued on an erroneous assumption that the land in question was non-forest land. The Forest Department relies on the Notification dated 04.09.1929 issued by the Government and published in the Mysore Gazette, inter alia, declaring 135 acres and 1 gunta of land falling in Survey No. 124 as "Reserved Land (Fodder Reserve)". According to respondent No.7, by virtue of the said notification, the lands falling in Survey No.124 to the extent of 135 acres and 1 gunta were declared as District Forests.
12. The petitioner disputes that the lands falling in Survey No.124 of Hadonahalli Village are Forest Lands. The learned senior counsel appearing for the petitioner submitted that the said lands were declared as a Village Forest under Section 31 of the Mysore Forest Regulation (XI of 1900) and were so notified under a gazette notification dated 21.07.1927. However, the said notification was cancelled by a subsequent notification dated 04.09.1929. Thus, by virtue of the subsequent notification, the lands falling in Survey No.124 ceased to be forest land.
REASONS AND CONCLUSION
13. At the outset, it is apposite to note that there is no serious dispute that if the subject land was a part of the forest land, it could not have been diverted for carrying on any non-forest activities without the permission of the Central Government under the FC Act. It is also relevant to bear in mind the observations of the Supreme Court in T.N. Godavarman Thirumulpad v. Union of India and Others (W.P. (Civil) No. 202/1995) ((1997) 2 SCC 267) explaining the meaning of forest and forest land. We consider it apposite to set out the following extract from the said decision.
"4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest" must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] , Rural Litigation and Entitlement Kendra v. State of U.P. [1989 Supp (1) SCC 504] and recently in the order dated 29-11-1996 (Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority [ WP (C) No 749 of 1995 decided on 29-11-1996] ). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi [(1985) 3 SCC 643] has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this Court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay."
14. Bearing the aforesaid observations in mind, we will now consider the principal issue, whether the lands falling in Survey No.124 are forest lands.
15. The parties have placed on record the notification (No.S.178-Ft. 18-27-2, dated 21.07.1927) setting out a declaration by the Government of Mysore issued under Section 31 of the Mysore Forest Regulation (XI of 1900), whereby lands falling in Survey No.112 (Gomal) and Survey No.124 (Kharab) to the extent of 38 acres and 135 acres and 1 gunta respectively falling in Tubagere Hobli and Hadonahalli Village, Doddaballapur Taluk, Bangalore District were declared as Village Forest under the Mysore Forest Regulations, 1900.
16. Although the lands in question were declared as Village Forest by virtue of the aforesaid declaration, the said notification was cancelled by a subsequent notification (No.G. 2790-Ft. 276-28-7 dated 04.09.1929) dated 04.09.1929. Thus, undisputedly, the lands falling in Survey No.125 were no longer classified as Village Forest. However, on the same date, that is on 04.09.1929, the Government of Mysore issued another notification (No. B. 2795-Ft. 276-28-9 dated 04.09.1929) declaring these lands as reserve land (for the reserve). The said notification, which is published in Part-II, Section 2 of the Mysore Gazette, is set out below:
"PART II--Section 2.
NOTIFICATIONS BY GOVERNMENT.
CHIEF SECRETARIAT.
No. G. 2790-Ft. 276-28-7, dated 4th September 1929.
The Government of His Highness the 'Maharaja' of Mysore are pleased to declare under the provisions of section 35 of the Mysore Forest Regulation Forest Regulation that the land, the limits of which are described in the annexed schedue shall be reserved land (Fodder Reserve) for the purpose of the General Rules for the management of District Forests published under Government Notification No. 245-1800, dated 2nd October 1901:
IMAGE
Boundaries
North - Subraya Nagenahalli village limit and Survey No. 125 of Hadonahalli:
East - The road leading to Subraya Temple and Survey. Nos. 186, 141, 142 and 148.
South - Survey Nos. 111 and 110 and District Forest.
West - District Forest limit (Survey No. 113)."
17. In view of the above, the controversy narrows to whether the term 'Reserved Land (Fodder Reserve)' is to be construed as a declaration of the lands in question as forest.
18. It is contented on behalf of the respondents that by virtue of the aforesaid notification, the subject land was declared as a District Forest. The petitioner disputes the said claim and contends that a 'fodder reserve' cannot be classified as a forest.
19. Mr. Vivek Reddy, the learned Senior Counsel appearing on behalf of the petitioner, contended that the expression 'Reserve Forest / Fodder Reserve' merely meant that certain lands were reserved for providing fodder. According to him, by its very nature the said lands could not be considered as forests.
20. The aforesaid controversy may be addressed by referring to the provisions of the Mysore Forest Regulation,1900, as the notification, declaring the lands in question as Reserve Land (Fodder Land), was issued under the said statute.
21. It is material to note that the aforesaid notification dated 04.09.1929 mentions that the declaration is made under Section 35 of the Mysore Forest Regulation 1900. It is material to note that the preamble of the said statute expressly states that it is enacted " to amend the law relating to forests and forest produce in Mysore"
22. We may note that Section 35 of the Mysore Forest Regulation 1900 falls in Chapter IV of the said enactment. The said chapter is set out below:
"CHAPTER IV
District Forests
"34. The Government may, in any District Forest, grant such privileges at it thinks fit in regard to the removal by cultivating raiyats or other classes of persons of forest produce required for prescribed purposes; and may without assigning reason therefor, cancel such grant: Provided always that the exercise of any privilege under this section shall be for the use of the person entitled therein, and not for the purpose of export or merchandise.
35. Subject to all rights now legally vested in individuals and communities, the Government may, for any district or portion of a district, make rules to regulate the use of the forest produce or of the pasturage of any land at the disposal of Government and not included in a State or Village Forest.
Such rules may amongst other things-
(i) declare that certain trees shall be classed as reserved trees not to be felled without the special sanction of the Conservator of Forests or of an officer duly authorized by him;
(ii) declare that certain trees not classed as reserved shall be granted to cultivating raiyats on favourable rates on seigniorage;
(iii) provide for placing any area at the disposal of Government under special protection, in view to its subsequent settlement and constitution as a State Forest or for any other purpose, and prescribe the conditions and penalties attendant on such special protection;
(iv) regulate or prohibit the grant of land and its clearing and breaking up for cultivation or other purposes;
(v) regulate or prohibit the kindling of fires, and prescribe the precautions to be taken to prevent the spreading of fires;
(vi) regulate or prohibit the felling, cutting, girdling, making lopping, tapping or injuring by fire or otherwise of any trees, the sawing, conversion, and removal of trees and timber, and the collection and removal of other forest produce;
(vii) regulate or prohibit the quarrying of stone or gravel, the burning of lime or charcoal, the smelting of ore, or the boiling of catechu;
(viii) regulate or prohibit the cutting of grass and pasturing of cattle, and prescribe the payments (if any) to be made for such cutting or pasturing;
(ix) regulate or prohibit hunting, shooting, beating or driving for game, fishing, poisoning or dynamiting water, and setting traps or snares;
(x) regulate the disposal of timber and other forest produce whether by sale or by free grant;
(xi) prescribe, or authorize the Conservator and the Deputy Commissioner of the district jointly to prescribe, the fees, royalties or other payments for such timber and other forest produce, and the manner in which they shall be levied.
36. The Government may by such rules prescribe, as penalties for the infringement thereof, imprisonment for a term which may extend to one month or fine which may extend to two hundred rupees, or both.
Provided that the Government may exempt any person or class of persons from the operation of all or any of such rules." [ emphasis added]
23. The heading of Chapter IV does indicate that the provisions contained therein concern District Forests. At this stage, we may also refer to Section 2(13) of the Mysore Forest Regulation, 1900, which defines the expression "District Forest" as under:
"Section 2(13)-"District Forest" includes all land at the disposal of Government not included within the limits of any State or Village Forest nor assigned at the survey settlement as free grazing ground or for any other public or communal purpose:
Provided that it shall be competent for Government to modify or set aside such assignment and constitute any such land a State, Village or District Forest, or devote the same to any other purpose it may deem fit."
24. Section 34 of the Mysore Forest Regulations, 1900, enables the Government to grant such privileges as it thinks fit in any District Forest.
25. Section 35 of the Mysore Forest Regulations, 1900 empowered the Government to make rules to regulate the use of forest produce or of the pasturage of any land at the disposal of the Government, which is not included in a State or Village Forest. Section 35 of the said statute concerns district forests. Clause (iii) of Section 35 is relevant as it specifically refers to placing any area under the disposal of the Government under special protection.
26. The Government of Mysore had framed Rules under Section 35 of the Mysore Forest Regulations 1900 - "General Rules for maintenance of District Forest and other lands at the disposal of the Government" [hereafter the Rules] - which were notified on 02.10.1901.
27. The relevant extract of the said Rules is set out below:
"The Government of Mysore are pleased to make the following rules under Section 35 of the Mysore Forest Regulation (1900) for the regulation of the use of the forest produce and of the pasturage of lands at the disposal of Government and not included within the limits of-
(a) a State Forest;
(b) a Village Forest;
(c) a grazing kaval managed by the Amrut Mahal Department; or
(d) a Municipality, in respect of lands assigned to it.
These rules shall apply to all districts, but shall not affect the existing rajyats' privileges rules for the districts of Shimoga, Kadur and Hassan, so far as they relate to taluks and parts of taluks specified therein as "Malnad."
2. Land at the disposal of Government may, for the purpose of these rules, be classed as follows:-
(a) Land of which the Government has acquired the ownership or possession by purchase, lease or otherwise.
(b) Assessed but unoccupied land.
(c) Unassessed and unoccupied land.
(d) Land assigned as free grazing ground or for other communal purposes,
3. "Reserved land" includes all land notified under Section 4 of the Forest Regulation and any area specially declared to be reserved land in the manner prescribed in Rule 6.
Land at the disposal of Government which is not set apart as "reserved land" (or otherwise specially assigned by Government) will be held to be "unreserved land."
** ** **
6. So much of the four classes of land, specified in Rule 2, as the Deputy Commissioner of the District and the Conservator of Forests consider should be in view to the constitution of a State Forest or to the safeguarding of the placed under special protection under Section 35 (iii) of the Regulation, either supply of timber, of fuel, or of fodder, or for purposes of protecting hill sides, or water supplies, may be declared to be "reserved land" by a Notification of Government published in the Mysore Gazette.
7. On land declared "reserved served land" under Rule 6, no fresh clearing shall be made for cultivation, or for any other purpose, without the permission of the Deputy Commissioner, which shall only be granted with the concurrence of the Conservator of Forests.
8. After the limits of any reserved land have been duly notified in the Mysore Gazette, no person within such land shall-
(a) set fire to any trees, timber, grass or other forest produce, or shall kindle or keep burning any fire except at such places and subject to such pre-cautions as may be prescribed by the Deputy Commissioner or other person duly authorized in that behalf;
(b) fell, remove, girdle, mark, lop, tap, uproot or burn, or strip bark or leaves from or otherwise damage any tree growing on such land, or use or injure or remove any forest produce found thereon, unless such person be duly authorised in this respect.
Provided that, subject to such special rules as may hereafter be issued in respect of any such land, the words "forest produce" in the foregoing clause ( shall not be held to include grazing on land assigned as free grazing ground, nor shall it include the following produce which may be removed for the bona fide home use of the neighbouring villages:-
(a) Fallen dry wood (other than of the reserved kinds) for fuel.
(b) Grass cut for fodder or grazed by "cattle" (not being goats or kids when the pasturage of the area concerned has been sold under the hulbanni system or otherwise to the villagers collectively.
** ** **
14. Quarrying in land at the disposal of the Government will be regulated by the Rules under the Land Revenue Code, care, however, being taken by the Deputy Commissioner to see that it is not ordinarily permitted in places where damage is likely to be caused to forest growth."
28. A plain reading of the opening part of the Rules indicates that the same applies to the areas which do not fall in a State Forest, Village Forest, Grazing lands or a Municipality. The 'reserved lands' expressly include lands which are reserved under Section 4 of the Forest Regulation and any land that is declared to be reserved in a manner as set out under Rule 6 of the Rules. This compels us to look into Section 4 of the Mysore Forest Regulation,1900, which falls under Chapter II under the heading State Forests. Section 4 of the Forest Regulation is set out below:
"4. Whenever it is proposed to constitute any land a State Forest, the Government shall publish a notification in the official Gazette-
(a) specifying as nearly as possible the situation and limits of such land;
(b) declaring that it is proposed to constitute such land a State Forest; and
(c) appointing an officer (hereinafter called "the Forest Settlement Officer") to inquire into and determine the existence, nature and extent of any rights claimed by, or alleged to exist in favour of, any person in or over any land comprised within such limits, or to any forest produce of such land, and to deal with the same as provided in this chapter.
The officer appointed under clause (c) of this section shall ordinarily be a person other than a Forest Officer; but a Forest Officer may be appointed by the Government to assist the Forest Settlement Officer in the enquiry prescribed by this Chapter."
29. It is clear from the above that the expression 'Reserved Lands' is used in the context of lands declared as 'State Forest' and other lands that may be specifically declared as reserved in accordance with the manner prescribed under Rule 6 of the Rules. Rule 6 refers to lands which are classified under Rule 2 of the Rules, which are required to be placed under special protection either in view of constituting a State Forest, or to safeguard the supply of timber, fuel or fodder, or for the purpose of protecting hill sides, or water supplies.
30. On a conjoint reading of Section 35 of the Forest Regulation and Rule 6 of the Rules, clearly indicate that the import of declaring any land 'Reserved Land' is to place such lands under a special protection with a view to (i) constitute a State Forest; (ii) safeguard supply of timber, fuel or fodder; (iii) protect hill sides; or (iv) protection of water supplies.
31. As noted above, Section 35 of the Mysore Forest Regulation falls under Chapter IV under the heading "District Forest", which also clearly indicates that the declaration under Section 35 would be considered under the broad classification of a forest. Under Rule 3, the reserved lands are either State Forest declared under Section 4 of the Mysore Forest Regulation,1900 or areas of special protection which would fall under the definition of "District Forest" under Section 2(13) of the Mysore Forest Regulation,1900.
32. Rule 8 of the Rules is also significant as it prohibits the destruction and removal of forest produce without the requisite permissions. Rule 7 of the Rules prohibits any part of the reserved land from being cleared for cultivation or for any other purpose without the permission of the Commissioner or the Conservator of Forests. Thus, the land declared as reserved land could not be cleared without the requisite permissions, including those from the Forest Department.
33. A plain reading of Rules 6, 7 and 8 of the Rules establishes that, for all intents and purposes, lands declared as reserved lands were to be preserved and could not be disturbed or cleared without the concurrence of the Forest Department. The title of the Rules also indicates that the Rules were, inter alia, the management of forests and other lands under the disposal of the Government. It is also necessary to bear in mind that the statutory framework for placing certain lands (other than village or state forests, grazing land, and municipalities) under special protection is under a law relating to "forests and forest produce".
34. It is also relevant to understand the context in which the notifications under the Mysore Forest Regulation 1900, regarding the lands in question, were issued. As noted earlier, the said lands were declared as Village Forest by a notification dated 21.07.1927. The provisions regarding Village Forest are set out in Chapter III of the Mysore Forest Regulation 1900. Section 31(1) of the said enactment postulates that the Government may, by notification in the Official Gazette, constitute any land at the disposal of a Village Forest for the benefit of any village community or group of village communities. The notification declaring the lands in question as Village Forest was cancelled, and simultaneously, a notification was issued declaring those lands as reserved lands under Section 35 of the Mysore Forest Regulation 1900. It is thus clear that the intention of the Government was not to divert the forest lands but to reclassify them as a District Forest. Thus the import of the notification in question was that the lands in question were no longer earmarked for the benefit of the village community(ies) of any specified village(s).
35. The respondents have also produced the map of the Mysore Forest Survey of Hadonhalli Fodder Reserve for the season 193334. The map clearly shows the "forest boundary". It is not disputed that the subject lands fall within the forest boundary as shown on the said map.
36. The question of whether the subject land is a Forest is necessarily to be considered with reference to the broader definition of Forests as explained by the Supreme Court in T.N. Godavarman (supra). Forests fall within the FC Act's cover, irrespective of their ownership or classification under the relevant statutes. By virtue of the notification dated 04.09.1929, the lands in question (of which the subject land is a part) were reserved under the statutory provisions concerning District Forests. Neither any tree could be felled nor could the land be cleared for any other purpose. The removal of forest produce from the land in question was also restricted. Given the nature of the restrictions applicable to reserved lands under the Rules, it is difficult to accept that the lands declared as reserved could be considered anything but Forests.
37. In view of the above, we are unable to find fault with the Forest Department's decision to consider the reserved land as part of the District Forest. Given the broader meaning of forest as explained by the Supreme Court in T.N. Godavarman (supra) read with the scheme of the Forest Regulation and the Rules, we are unable to accept that the subject land is not Forest Land.
38. In view of the above, we find no grounds to interfere with the impugned communications or the impugned endorsement. The petition is accordingly dismissed.
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