K. Balakrishnan Nambiar(D) By Lrs vs State Of Karnataka & Ors

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With

CIVIL APPEAL NO. 3973 OF 2011

[Arising out of SLP (C) No. 26371 of 2008]

Sri K. Balakrishna Nambiar .. Appellant

VERSUS

State of Karnataka & Ors. ..Respondents

J U D G M E N T

SURINDER SINGH NIJJAR, J.

Civil Appeal No.4994 of 2004 :

1. This appeal is directed against the final

judgment and order of the High Court of

Karnataka at Bangalore dated 3rd September,

2003, in Writ Appeal No. 3530 of 2003 (GM

- FOR) arising out of Writ Petition No. 17766

of 2000 vide which the order of the Learned

Single Judge was affirmed and the appeal

was accordingly dismissed.

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2. The appellant herein is the transferee of

leasehold rights of the land to an extent of 25

acres in Survey No. 336/1A1 (75 acres in

total) of Aletti village of Sullia Taluk,

Dakshnia Kannada district. The original

order of lease grant was made in the favour of

one Sri. M. Shankara Narayana

Kadambalithaya in the year 1949 by the then

government of Madras for a period of 50

years vide order of grant dated 24th March,

1949, issued by the District Forest Officer,

Mangalore. The land was granted for the

purpose of raising areca nut plantation. The

lessee was permitted to grow pepper and

other fruit bearing trees as subsidiary crops

on the land. Thereafter, on the death of the

original lessee, his legal representatives, after

obtaining permission from the State

Government, alienated the lease hold rights

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in favour of the appellant. The lease in regard

to a portion of the land was to expire on 31st

March, 1999 and in regard to remaining

portion in the year 2000.

3. The appellant submitted an application dated

4th June, 1996 for renewal of the lease. It

appears that no action was taken on the

application for renewal. Consequently,

apprehending eviction, immediately after the

lease period, the appellant alongwith two

others filed a writ petition No. 9570-9572 of

1999 in the High Court of Karnataka at

Bangalore. In the aforesaid writ petition, the

appellant had prayed for the issuance of writ

of mandamus directing the respondents to

consider the applications for renewal of the

lease deed of the land in question. The High

Court vide its order dated 25th March, 1999

disposed of the writ petition with a direction

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to the respondents therein to consider the

application for the renewal of the lease in

accordance with law and dispose of the same

within two months of the date of receipt of

the copy of the order.

4. The appellant thereafter made another

representation to respondent No. 2 seeking

renewal of the lease. However by order dated

25th March, 2000, the State Government

cancelled the lease deed and directed the

appellant to hand over the possession of the

lease hold land back to the forest department

to the extent of 48 acres out of 75 acres

immediately and the remaining 27 acres by

31st December, 2001. The reasons given by

the State Government in its order dated 25th

March, 2000 for rejecting the claim of the

appellant were as under:-

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"The leasehold land is surrounded by

thick forest in East Aletty Reserved

Forest Land; this area is near to the

boundary of Kerala and Karnataka

State. In the event of extending the

period of Lease in respect of this area,

it is likely that there may be problem

for movement of men and vehicles and

in order to protect the interest of

Forest, it is not felt advisable to lease

the extent of 48 acres of Forest land, as

the lessees have already raised Areca,

Coconut and Cashew trees on the

leasehold lands and those trees have

fully developed and in the event of

extending the Lease period, it is likely

that the lessees would commence fresh

cultivation on the land in question. It

is proposed to take possession of the

land in respect of which Lease period is

completed and thereafter after doing

forestery work on this land and on the

land naturally grown trees are allowed

to be protected fully and the Reserved

Forest could be taken possession and

could be maintained as a Reserved

forest land only. As the renewal of the

Lease or the extension of Lease period

would involve obtaining prior sanction

of the Central Government and

therefore there is no room for granting

the forest land for the purpose of forest

activities within the Reserved Forest

Area.

As the period of Lease transferred in

favour of Shri K Balakrishnan Nambiar,

out of the total extent of 75 acres,

Lease period comes to an end in

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respect of an extent of 48 acres on

31.3.1999, it is felt desirable that there

is no justification to extend the Lease

period in respect of the Leasehold land

and that the Department should take

back the possession of the land from

the Lessee and in respect of the

remaining extent of 27 acres the Lease

period expires on 31.12.2001 and

thereafter without extending that lease

also after the lease period is over, the

possession of that land also should be

taken back to the department.

After examining these proceedings the

Government has passed the following

order:-

ORDER OF GOVERNMENT; FG 17 FLL

97, Bangalore,

Dated : 25.3.2000.

Having regard to the background and

reasons explained above, it is hereby

ordered that out of the extent of 75

acres of Leasehold land transferred in

favour of Sri Balakrishnan Nambiar in

the land in S.No.336/1A6 of Aletty

Reserved forest land; an extent of 48

acres of Leased land is ordered to be

forthwith taken possession of by the

Forest Department. It is also hereby

ordered that the remaining extent of 27

acres in respect of which lease period

comes to an end on 31.12.2001 and

thereafter the Lease period should not

be extended and the possession of that

land also should be taken over by the

Forest Department.

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By order and in the name

of the Governor of Karnataka,

Sd/-xx K Krishnamurthy,

Under Secretary to Government,

Forest & Environment Department."

5. Aggrieved by the aforesaid order, the

appellant again moved the High Court of

Karnataka at Bangalore in writ petition No.

17766 of 2000. The learned Single Judge

dismissed the Writ Petition by order dated 9th

April, 2003. The Writ Appeal No. 3530 of

2003 filed by the appellant as against the

judgment of the learned Single Judge was

also dismissed by order dated 3rd September,

2003. The Division Bench of the High Court

held that the issue is concluded by this Court

in the case of T.N. Godavarman

Thirumulkpad Vs. Union of India1 wherein

it has been held that no forest area shall be

used for nonforestal activities. The Division

1 AIR (1997) SC 1228

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Bench judgment is under challenge before us

in the present appeal.

6. We have heard the learned counsel for

parties at length.

7. Mr. K.V. Vishwanathan, learned senior

counsel appearing for the appellant submits

that the High Court has dismissed the matter

on erroneous interpretation of the judgment

of this Court in T.N. Godavarman's case

(supra). He then submits that aforesaid

judgment of this Court was with regard to

`nonforestal' activities in the `reserved forest'

area. He further submits that plantation of

arecanut trees, cashew trees, coconut trees

and black pepper vines do not amount to

nonforestal activities. He further relies on the

reports of the Assistant Conservator of Forest

with regard to the adjoining lands, which

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were similarly leased, to indicate that the

lands have lost all the character of forest land

and in fact the status of the lands according

to the said report had ceased to be `reserved

forest'. Therefore, judgment in the

Godavarman's case (supra) would not be

applicable in the instant matter. He

thereafter submits that the appellant has not

violated the conditions of grant and his

activities on the land do not include breaking

up or clearing of any forest land or portion

thereto. He then submits that the appellant

has incurred huge investments to raise

valuable arecanut trees for a number of

years. Therefore, it would cause grave

injustice to him if the lease period is not

renewed. He also submits that appellant has

no other source of income. The learned

counsel further draws our attention to the

letter dated 19th February, 1994 where the

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Chief Conservator of Forest, Bangalore, has

recommended to the State Government for

confirming the lease grant on permanent

basis.

8. On the other hand, Mr. Anand Sanjay M.

Nuli, learned counsel for the State, submits

that the lease land is a part of the statutorily

declared reserved forest, having been

declared as such by Order No. 318 dated

9th February, 1907. This was published in

Notification of Board of Revenue (Land

Revenue) Forest No. 32 dated 22nd February,

1907, which had declared the land under

lease as reserved forest with effect from 1st

May 1907 under the Madras Forest Act,

1882. Since then, it has continued to be the

reserved forest land. The grant of lease in

favour of the predecessors of the appellant

did not have the effect of dereservation. At

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the expiry of the lease, the land was expected

to be surrendered to the State as forest land.

He further submits that after the enactment

of the Forest Conservation Act, 1980, no

forest land can be dereserved without prior

approval of the Central Government. Under

no circumstances, forest land can be

permitted to be used for nonforestal

activities. Learned counsel submitted that

the High Court was bound to dismiss the writ

petition as the matter was squarely covered

by the judgment of this Court in T.N.

Godavarman's case (supra). In order to

ensure the effective implementation of the

Forest Conservation Act, 1980, the State

Government has taken a policy decision not

to continue the lease of any forest land. The

policy of the State, according to the learned

counsel, is in conformity with National Forest

Policy, 1988, which has been formulated to

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maintain the environmental stability and to

preserve the ecological balance. The learned

counsel submits that the State Government

has rejected the claim of the appellant, after

taking due notice of the legal position as well

as any hardship that may be caused to him.

9. We have considered the submissions made

by the learned counsel for the parties. In our

opinion, in view of the judgment of this Court

in Godavarman's case (supra), it is not

necessary to dilate upon the matter at length,

since all the issues raised by Mr.

Vishwanathan have been elaborately

considered and decided in the aforesaid

judgment. We are unable to accept the

submission of Mr. Vishwanathan that

arecanut cultivation cannot be treated as a

nonforestal activity, merely because it does

not involve any cutting of the trees. On the

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other hand, the Government has given cogent

and valid reasons for non-renewal of the

lease. The order passed by the Government

makes it clear that the leasehold land is

surrounded by thick forest in East Aletty

Reserved Forest land; this area is near to the

boundary of Kerala and Karnataka State. It

notices that extending the period of lease in

respect of this area is likely to cause

problems for the movement of men and

vehicles. It is also noticed that lessees have

already raised Areca, Coconut and Cashew

trees on the leasehold lands and those trees

are fully developed. Therefore, in the event of

extending the lease period, it is likely that the

lessee would commence fresh cultivation on

the land in question. The intention of the

Government is to develop naturally grown

forests over the lands. This can only be done

if the possession is taken by the Government.

1 Addressing the similar issues, this Court in

Godavarman's case (supra) has observed as

follows:-

"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, Rural

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Litigation and Entitlement Kendra v.

State of U.P. and recently in the order

dated 29-11-1996 (Supreme Court

Monitoring Committee v. Mussoorie

Dehradun Development Authority). The

earlier decision of this Court in State of

Bihar v. Banshi Ram Modi 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."

10. After making these observations, a specific

direction has been issued, to all the State

Governments, to ensure that all ongoing non-

forest activity within any forest, without the

prior approval of the Central Government,

must cease forthwith. It was emphasised

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that every State Government must ensure

total cessation of all nonforestal activities

forthwith. Mr. Vishwanathan had also

submitted that since the lease has been

granted prior to the operation of the 1980 Act

and the land has been declared as dereserved

at the time of the grant of the lease, the lease

can not be automatically cancelled upon

promulgation of the 1980 Act. In our

opinion, the aforesaid submission of the

learned counsel is also no longer res integra

as it has been answered in the case of Nature

Lovers Movement Vs. State of Kerala &

Ors.

2 11. Upon consideration of the earlier cases

pertaining to the conservation of forests in

India, this Court culled out certain

principles. We may, however, notice only the

2 (2009) 5 SCC 373

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observations made in Paragraphs 47 and 48,

which are as under:-

"47. The ratio of the above noted

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.

48. Another principle which emerges

from these judgments is that even if

any forest land or any portion thereof

has been used for non-forest purpose,

like undertaking of mining activity for a

particular length of time, prior to the

enforcement of the 1980 Act, the tenure

of such activity cannot be extended by

way of renewal of lease or otherwise

after 25-10-1980 without obtaining

prior approval of the Central

Government."

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12. In view of the aforesaid observations, we are

of the considered opinion that there is no

merit in the appeal. The appeal is

accordingly dismissed with no order as to

costs.

Civil Appeal No. 4995 of 2004,

Civil Appeal No. 4996 of 2004 and

Civil Appeal No.3973 of 2011

(Arising out of SLP (C) No. 26371 of 2008)

13. Leave granted in Civil Appeal No. 3973 of

2011 (Arising out of SLP (C) No.26371 of

2008).

14. In view of the judgment passed in Civil

Appeal No. 4994 of 2004, these appeals

are also dismissed with no order as to costs.

...................................J.

[B.Sudershan Reddy]

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...................................J.

[Surinder Singh Nijjar]

New Delhi;

May 05, 2011.

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