Holding

The lease of the forest land is void because prior approval under Section 2 of the Forest Conservation Act, 1980 was not obtained before the lease, and post‑facto approval does not cure the defect; the land is forest land within the meaning of the Act.

Summary

The Government of Goa leased 12 hectares of land, classified as forest, to A. Chowgule & Co. Ltd. for an export‑oriented iron‑ore beneficiation plant. Respondents filed writ petitions challenging the lease, arguing that the land was forest and required prior Central Government approval under Section 2 of the Forest Conservation Act, 1980. The High Court quashed the lease, holding that the lease was void for lack of such approval. On appeal, the Supreme Court examined whether the post‑facto approval granted in 1997 for diversion of 4.44 hectares cured the defect, whether the land was indeed forest, and whether the appellant’s promise of compensatory afforestation could validate the lease. The Court held that the lease was executed without the mandatory prior approval, that post‑facto approval does not cure the defect, and that the land is forest land within the meaning of the Act. Consequently, the lease is null and void. The appeal was dismissed.

Issues considered

Whether prior approval of the Central Government under Section 2 of the Forest Conservation Act, 1980 is required before diverting forest land and executing a lease.
Whether post‑facto approval granted by the Central Government can cure the defect in a lease executed without prior approval.
Whether the 12‑hectare parcel is forest land as defined under the Act and Rules.
Whether an undertaking to afforest an equivalent area can validate a lease of forest land.
Whether renewal of a pre‑existing lease after the Act’s commencement is subject to Section 2 requirements.

Legislation cited

Forest (Conservation) Act, 1980s. 2
Forest (Conservation) Rules, 1981s. 4, s. 5, s. 6

Subjects

Forest Conservation ActSection 2Prior approvalLease of forest landDe‑reservationAfforestationEnvironmental lawMining leasePost‑facto approval

Judgment

[2008] 12 S.C.R. 196

~
A A. CHOWGULE & CO. LTD.
V.
GOA FOUNDATION & ORS.
(Civil Appeal No. 5180 of 2001)
AUGUST 18, 2008
B
[TARUN CHATTERJEE AND HARJIT SINGH BED!, JJ.]
~

Forest Conservation Act, 1980 - s. 2 - Forest (Conser-
vation) Rules 1981- rr. 4, 5 and 6 - De-reservation of forest
c and use of forest land for non-forest purpose - Restriction on
- Held: Prior approval of Central Government is required as
per procedure prescribed for diversion of forest land and its
use for some other purpose - Formal approval granted ex-
post facto would not cure any defect in dereservation.
D The Government of Goa leased 12 hectares of land
to Appellant-company to enable it to set up an integrated
unit including a benefication plant for production of sale- •
'f'

able iron ore and to operate it as a 100 per cent Export
Oriented Unit. In this regard, a Memorandum of Lease
E· dated 1st November 1989 was executed between the Gov-
ernor and Appellant, pursuant to which Appellant obtained
various administrative sanctions and also imported ma-
chinery for operation of the project.
At this juncture, Respondents 1 to 3 filed writ peti-
F tions before the High Court praying for a writ of certiorari
for quashing the Memorandum of Lease dated 1st Novem-
ber 1989, contending that the land leased was forest land.
High Court adjourned the matter in view of the statement
made by the Advocate General that the State Government
G proposed to take up the matter with the Central Govern-
ment so as to secure the necessary approvals postulated 'f,,
under section 2 of the Forest Conservation Act, 1980.
Subsequently, the State Government wrote to the Minis-
try of Environment and Forest seeking clearance under
H 196
A. CHOWGULE & CO. LTD. v. GOA 197
FOUNDATION & ORS.
--:(
section 2 of the Act whereafter in 1997, the Ministry of A
Environment and Forest conveyed its approval for diver-
sion of 4.44 hectares of forest land. The writ petition was
finally allowed in the year 2000 and writ of certiorari was
issued quashing the lease agreement dated 1st Novem-
ber 1989. It was, inter-alia, held that the various approv- B
als/sanctions granted to Appellant by the Industries De-
t partment or by the Collector could not, by any stretch of
imagination, be construed as permission for deforesta-
tion of the forest area, as envisaged by section 2 of the
Act as the said Act required prior approval of the Central c
Government after the procedure given in Rules 4, 5 and 6
of The Forest (Conservation) Rules 1981 had been fol-
lowed. The plea of the appellant that the area concerned
was not a forest was also repelled by the High Court with
the observation that an average of 250 trees per hectare
D
were growing on the land, as evident from the affidavit

•
'Y
filed by the Deputy Conservator of Forest, 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 E
the nature of the land as it was apparently a wrong de-
scription more particularly as Section 2 referred not only
to forests but to forest land as well. The High Court held
that the 12 hectares of land in question being forest land,
prior permission under section 2 of the Act was sine qua F
-~ non for execution of the lease deed dated 1st of Novem-
ber 1989 and without such prior permission, the lease
granted in favour of Appellant was contrary to law and
null and void.
G
In appeal to this Court, Appellant contended that
there had been no violation of the provisions of Section 2
·-· of the Act since the Central Government had givan its post-
facto approval to the project and had also conveyed its
approval for diversion of 4.44 hectares of the land sub-
H
198 SUPREME COURT REPORTS (2008] 12 S.C.R.

A ject to several conditions which had been complied with
and in this view of the matter, any flaw, which may have
been present at the initial stage, had been rectified.
Respondents, however, submitted that Section 2 of
the Act and the Rules pre-supposed a prior approval of
8 the Central Government as per the prescribed procedure
before the dereservation of forest land and formal approv-
als granted by any other agency or by the Central Gov-
ernment ex-post facto, would not cure any defect in the
dereservation; that even as per the appellant's case, the
C lease deed for 12 hectares had been executed on 1st No-
vember 1989, but the approval for the diversion of 4.44
hectares of land had been accorded' in the year 1997 and
would, therefore not operate retrospectively even for this
limited area and further that the Appellant's undertaking
D to cause afforestation in an area equivalent to the one
leased out as per the stipulation of the Central Govern-
ment was aJso not acceptable in. the light of the fact that
the lease deed itself was contrary to law.
Dismissing the appeal, the Court
E
HELD:1.1. A bare perusal of section 2 of the Forest
Conservation Act, 1980 and Rules 2A, 4, 5 and 6 of the For-
est Conservation (Rules), 1981 shows that prior approval
is required for diversion of any forest land and its use for
F some other purpose. Rule 4 provides that every State Gov-
ernment or. other authority seeking prior approval under
Section 2 of the Act shall submit a proposal to the Central
Government in the prescribed form and Rule 6 stipulates
that the proposals would be examined by a committee ap-
G pointed under Rule 2-A within the parameters and guide- ~
lines postulated in Rule 5. There is nothing on record to
suggest that this procedure had been adopted in the in- ..,. •,
stant case. Also the approval for 4.4 hectares had been
obtained long after the lease deed had been executed on
H 1st November 1989 and there is no suggestion that even
i
...(
A. CHOWGULE & CO. LTD. v. GOA 199
FOUNDATION & ORS.
~
for this limited area the procedure envisaged under Rules A
4, 5 and 6 had been followed. [Para 6] [210,H; 211,A-C]
1.2. After the coming into force of the Forest Conser-
vation Act, the renewal of a pre-existing mining lease in a
forest area can be granted only if the requirements of Sec-
tion 2 are satisfied. It is therefore obvious that the claim 8
_., of the appellant confined only to 4.44 hectares is also
untenable. [Para 6] [212,B]
State of Bihar v. Banshi Ram Modi & Ors. (1985) 3 SCC
643 - distinguished. c
Ambica Quarry Works vs. State of Gujarat & Ors, (1987) 1
SCC 213.; Rural Litigation & Entitlement Kendra v. State of
U.P,(1989) Suppl.1SCC504; T.N. Godavarman Thirumulkpad
v. Union of India & Ors., (1997) 2 SCC 267 and MC.Mehta v.
Union of India & Ors. (2004) 12 SCC 118 - relied on. D

•
~
Hyderabad Abrasives & Minerals, Hyderabad v. The
Govt. of A.P. Forest Department, Hyderabad &Anr. AIR (1990)
Andhra Pradesh 257 - referred to.
2.1. As regards the submission'that the land in ques- E
tion was not a forest and was, therefore, not subject to
the provisions of the Act, from a perusal of the High Court
judgment it is found that this question of fact had been
adequately dealt with based on the affidavits filed in Court
and also on a perusal of the Revenue record. Though F
-t- some argument was made on the discordance between
the affidavits filed by the two Forest Officers, however,
there is no difference with regard to the basic factum as
to the nature of the land in question and the only differ-
J
I ence, if at all, is with regard to the number of trees per
G
hectare said to be growing on the land. In the facts and
circumstances cf the case, there can be no doubt that
the land leased out to the appellant was indeed a forest.
[Paras 7, 8] [212,C-E; 213,F]
2.2. As regards the argument of the appellants that H
200 SUPREME COURT REPORTS [2008] 12 S.C.R.

A they were willing to reforest an identical area in case the
lease was allowed to be effectuated, some observations
need to be made. The re-forestation or afforestation that
is being carried out in India does not meet the fundamen-
tals and the planting of new trees to match the numbers
s 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
c 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 ex-
0
isting 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 destruc-
tion of the existing forest cover. A small but significant ex-
E ample is the destruction of plantations alongside the arte-
rial 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.
F With the removal of these plantations to widen the roads
to meet the ever growing needs of the traffic, and their re-
placement by trees of non-indigenous varieties, (which are
often not eco or bird friendly) in the restricted and remain-
ing areas bordering the widened roads, the shelter for birds
G has been destroyed and where thousands/ of birds once
nested and bred, there has been a virtual annihilation of
the bird life as well. [Para 9] {213,G, 214,8-H]
Case Law Reference

H (1985) 3 sec 643 distinguished Para 3
A. CHOWGULE & CO. LTD. v. GOA 201
FOUNDATION & ORS. [HARJIT SINGH BEDI, J.]

AIR (1990) Andhra A
Pradesh 257 referred to Para 3 .
(1987) 1 sec 213 relied on Para 11
(1989) Suppl. 1 sec 504 relied on Para 11
(1997) 2 sec 2s1 relied on Para 11 B
(2004) 12 sec 11s relied on Para 11
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5180
of 2001
From the final Judgment and Order dated 21.7.2000 of c
the High Court of Bombay, Goa Bench at Panajit in Writ Peti-
tion No. 113of1992
Ravindra Shrivastava, S. Anand Ramakrishnan,
Somanadri Goud K., Kuna! Verma, Raju! Srivastav, Supriya Jain
D
and Anup Jain (for M/s. Parekh and Co.) for the Appellant.
... Dr. R.G. Padia, Sanjay Parekh, A.N. Singh, Jitin Sahni,
~
Mamta Saxena, A. Subhashini, Savitri Pandey, D.S. Mahra,
Harshvardhan Jha and Gulshan Sharma (for M/s. K.L. Mehta &
Co.) for the Respondents. E
The Judgment of the Court was delivered by
HARJIT SINGH BEDI, J. 1. The facts leading to the filing
of this appeal are as under:

2. The appellant, a company incorporated under the Com- F
-+ panies Act, has its registered office at Chowgule House,
· Mormugao Harbour.Goa al'1d 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 G
distance from its existing mines. The process of locating suit-
able land for the unit took about 10 years and the process for
the unit was finally set in motion by a letter dated 21 51 Decem-
ber 1988 from the Collectorate of South Goa, Revenue Depart-
ment to the Inspector of Survey, Land Records, Mangao-Goa H
202 SUPREME COURT REPORTS [2008] 12 S.C.R.

A informing the said officer that the Government of Goa had de- ~
cided to ·lease an area of 15 hectare out of 26.4675 hectares to
the appellant under Survey No. 12 of Potrem Village in Sanguem
Ta Iuka and directions were issued that the area be demarcated
and the other formalities complied with. On 17tt1 August 1989,
B the appellant addressed a letter to the Secretary for Industrial
Approvals, Ministry of Industries of the Central Government about
the proposalto 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 ;-
-1-
c 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 ex-
ecuted between the Governor of Goa and the appellant whereby
an area of 12 hectares was leased out for the purpose of ancil-
lary work connected to mining and for that purpose the appel-
D
lant was authorized to construct the necessary civil structures.
The appellant also, on 71h of February 1990, entered into a con-
/II·
tract with a Japanese Corporation for the export of processed
~
iron ore. A No Objection Certificate from the Goa State Pollu-
tion Control Board was obtained on 151h April 1991 and a Sanad
E dated 1Olh July 1991 was also issued by the Deputy Collector
of Goa permitting the use of the land for non~agricultural pur-
poses upon payment of Rs.6 lakhs by way of conversion fees. It
is the case of the appellant that pursuant to the aforesaid ad-
ministrative sanctions and decisions, machinery worth Rs.12
F crores was imported for the operation of the project. At this junc-
ture 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 Memo-
rand um of Lease dated 1st November 1989 and for several other
G 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 ;·
f
already been classified as Revenue Land meant for "Dry Crops"
and was not_ a forest area, as had been contended by the writ
H petitioners/respondents 1,2 and 3. On 26th March 1992, the High
A. CHOWGULE & CO. LTD. v. GOA 203
FOUNDATION & ORS. [HARJIT SINGH BEDI, J.]
"I Court adjourned the matter for 8 weeks in view of the statement A
made by the Advocate General that the State Government pro-
posed to take up the matter with the Central Government so as
to secure the necessary approvals postulated under section 2
-I
of the Forest Conservation Act, 1980 (hereinafter called the
"Act") and as such it was unnecessary to proceed with the writ B
petition. The High Court, accordingly, adjourned the matter for
•' 8 weeks without any discussion on merits with liberty to all par-
....
ties to press their submissions in case the need arose. Pursu-
ant to the assurance given by the Advocate General to the High
Court, the State Government wrote to the Ministry of Environ- c
ment and Forest, New Delhi on 7th May 1992 pointing out that
out of the 12 hectares leased to the appellant a small ~rea 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
D
Survey No.42 Santanu Village of Sangueme Taluka and as the

+• unit was likely to earn foreign exchange and the broatl sane-
tions had already been given by the concerned quarters, clear-
ance under section 2 of the Act be accorded. The writ petition
aforesaid once again came up for consideration on 17th No-
vember 1992 and while granting some interim relief to the writ E
petitioners-respondents, it was directed that the petition be
listed for final disposal in January 1993. The Ministry of Envi-
ronment 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 sev- F
·+ eral conditions which were statedly complied with by the appel-
lant and a final decision allowing the diversion was also con-
veyed 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 G
was issued quashing the lease agreement dated 1st Novem-
.. _A-
ber 1989. It was, inter-alia, held that the various approvals/sane-
tions 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, H
204 SUPREME COURT REPORTS [2008] 12 S.C.R.

A 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 thaMhe area concerned was not a forest
B 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 for~ ,
ested with 3000 trees and was in addition contiguous to the
c Government forests. The Bench also observed that merely be-
cause the land had been described as "Dry Crops Land" would
not change the nature of the land asJt 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
D
TN. Godavarman Thirumulkpad vs. Union of India & Ors.
(1997) 2 sec 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
E . 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:

F "Does the subsequent act of granting permission
communicated by letter of 1 ath May 1993 enable .f-_
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
G
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 -f.- ..
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
H
A. CHOWGULE & CO. LTD. v. GOA 205
FOUNDATION & ORS. [HARJIT SINGH BEDI, J.]

on the footing that prior approval is being sought. In the A
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 B
_, 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 c
for permission would not arise.
Even 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 D
.. ~
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 E
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 F
+ 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 costs."
It is these circumstances that the appeal is before us. G
~ -t 3. Mr. Shrivastava, the learned senior counsel for the ap-
pellant has raised several arguments during the course of hear-
ing. He has first and foremost pointed out that there had been
no violation of the provisions of Section 2 of the Act in the back-
H
206 SUPREME COURT REPORTS [2008] 12 S.C.R.

~
A ground that the Government of India had given its post-facto
approval to the project and that the State Government had ac-
corded its approval on 21s1 December 1988 and that the Gov-
ernment of India had also conveyed its approval in principle for
the diversion of 4.44 hectares of the land subject to several
B conditions which had been complied with and in this view of the
matter, any flaw, whic;h may have been present at the initial
~-
stage, had been rectified. It has been submitted that the afore-
,
said arguments were further fortified from the letters of the Minis-
try of Environment and Forest, Government of India dated 18th "'
c May 1993 and 7th November 1997 for the use of 4.44 hectares
of forest land in Porterm village in favour of the appellant subject
to the condition, in.ter-alia, that compensatory afforestation would
be carried out over non-forest land at the cost of the project. It
has, accordingly, been submitted as the lease deed has been
executed for an area of about 15 hectares and was as per record
D
not a forest area, the entire area ought to be left for the use of the
(~
appellant-company and that the 4.44 hectares which had been
cleared not only by the State Government but by the Ministry of +
Environment and Forest, Government of India should in any case J.
be left out for the benefit of the appellant. The learn~d counsel '
\.-
E has relied upon (1985) 3 SCC 643 (State of Bihar vs. Banshi
~

Ram Modi & Ors.) and AIR 1990 Andhra Pradesh 257
(Hyderabad Abrasives & Minerals, Hyderabad vs. The Govt. of
A. P Forest Department, Hyderabad &Anr in support of his case.

F 4. Mr. Sanjay Parekh, the learned counsel for the respon-
dents has, however, submitted that as a matter of fact, the +
benefication plant had already been shifted from the proposed
site and that this fact had been withheld from the High Court as
well as from this Court during the course of the protracted hear-
ings. It has also been strongly urged that Section 2 of the Act
G
and the Rules pre-supposed a prior approval of the Central
_,__.I
Government as per the prescribed procedure before the
dereservation of ~orest land and formal approvals granted~by
any other agency or by the Central Government ex-post facto.
would not cure any defect in the dereservation. It has been sub-
H -~
A. CHOWGULE & CO. LTD. v. GOA 207
FOUNDATION & ORS. [HARJIT SINGH BEDI, J.]

-f mitted that even as per the appellant's case, the lease deed for A
12 hectares had been executed on 1st November 1989, but the
approval for the diversion of 4.44 hectares of land had been
accorded in the year 1997 and would, therefore not operate
retrospectively even for this limited area. It has also been ar-
gued that the appellant's undertaking to cause afforestation in B
an area equivalent to the one leased out as per the stipulation
~
of the Central Government in the afore referred documents, was
also not acceptable in the light of the fact that the lease deed
itself was contrary to law. It has also been pointed out that the
finding of fact recorded by the High Court was that the area in c
question was indeed a forest and that the judgments cited by
the appellant's counsel had been clarified by the Supreme Court
in a series of subsequent judgments reported in (1987) 1 sec
213 (Ambica Quarry Works vs. State of Gujarat & Ors.), 1989
Suppl. (1) SCC 504_(Rural Litigation & Entitlement Kendra
D
vs. State of U. P, (1997) 2 SCC 267 (TN. Godavarman
~.
Thirumulkpad vs. Union of India & Ors.) and (2004) 12 SCC
.,., 118 (M. C. Mehta vs. Union of India & Ors.).
5. We have considered the arguments advanced by the
learned counsel for the parties. It is evident from the record and E
what has been recorded earlier that the primary issue is with
regard to the permission granted by the Central Government
for the diversion of the forest area. Section 2 of the Act and the
relevant Rules are reproduced below:

"Sec. 2. Restriction on the dereservation of forests or use F
·-t of forest land for non-forest purpose - Notwithstanding
anything contained in any other law for the time being in
force in a State, no State Government or other authority
shall make, except with the prior approval of the Central
Government any order directing - G
(i) that any reserved forest (within the meaning of the
• "--+ expression 'reserved forest' in any law for the time
being in force in that State) or any portion thereof,
shall cease to be reserved;
H
208 SUPREME COURT REPORTS [2008] 12 S.C.R.

't
A (ii) that any forest land or any portion thereof may be
used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be
assigned by way of lease or otherwise to any private
person or to any authority, Corporation, agency or
B any other organisation not owned, managed or
controlled by Government;
r•
(iv) that any forest land or any portion thereof may be
cleared of trees whi.ch have grown naturally in that
c land or portion, for the purpose of using it for re-
afforestation.
Rules.
Rule 2(b). "Committee" means the Committee constituted
under Section 3.
D
2A.(1)Composition of the Committee:- The Committee
-~
shall be compQsed of the following Members:- ~

i. Inspector General of Forests, Ministry of Environment
& Forests - Chairman.
E
ii. Additional Inspector General of Forests, Ministry of
Environment and Forests - Member.

iii. Joint Commissioner (Soil Conservation), Ministry of
Agriculture - Member.
F
iv. Three eminent environmentalists (non-officials) - 4-
Member.
v. Deputy Inspector General of Forests, (Forest
Conservation), Ministry of Environment and Forests
G - Member-Secretary.
4. Procedure to make proposal by a State Government -k-~
. l
or other authority:-
(1) Every State Government or other authority seeking
H the prior approval under section 2 shall send its
A. CHOWGULE & CO. LTD. v. GOA 209
FOUNDATION & ORS. [HARJIT SINGH BEDI, J.]

proposal to the Central Government in the form A
appended to these rules:
Provided that all proposals involving clearing
naturally grown trees in forest land Or portion
thereof for the purpose of using it for
reafforestation shall be sent in the form of 8
Working Plan/Management Plan.
4.-
(2) Every proposal referred to in sub-rule (1) shall be
sent to the following address, namely:-
Secretary to the Government of India c
Ministry of Environment & Forests
Paryavaran Bhavan, CGO Complex
Lodi Road, New Delhi - 110003
Provided that all proposals involving forest land up to
D
twenty hectares and proposals involving clearing of
\.. naturally grown. trees in forest land or portion thereof for
·~ the purpose of using it for reafforestation shall be sent to
the Chief Conservator of Forests/Conservator of Forests
of the concerned Regional Office ·of the Ministry of
E
Environment and Forests.
5. Committee to advise on proposals received by the
Central Government:-
1. The Central Government shall refer every proposal
received by it under sub-rule (1) of rule 4 to the F
-t committee for its advice thereon if the area of forest
land involved is more than twenty hectares.Provided
that proposals involving clearing of naturally grown
trees in forest land or portion thereof for the purpose
of using it for reafforestation shall not be referred to G
the Committee for its advice.
~ ~

2. The Committee shall have due regard to all or any of
the following matters while tendering its advice on the
proposals referred to it under sub-rule (1 ), namely :-
H
210 SUPREME COURT REPORTS [2008] 12 S.C.R.

A a. Whether the forests land proposed to be used
for non-forest purpose forms part of a nature
reserve, national park wildlife sanctuary,
biosphere reserve or forms part of the habitat
of any endangered or threatened species of
B flora and fauna or of an area lying in severely
eroded catchment;
b. Whether the use of any forest land is for
agricultural purpose or for the rehabilitation or
persons displaced from their residences by
c reason of any river valley or hydro-electric
project;
c. Whether the State Government or the other
authority has certified that it has considered all
other alternatives and that no other alternatives
D
in the circumstances are feasible and that the
required area is the min~mum needed for the .J

purpose; and ~·

d. Whether the State Government or the other
E authority undertakes to provide at its cost for
the acquisition of land of an equivalent area
and afforestation thereof.
3. While tendering the advice, the Committee may also
suggest any conditions or restrictions on the use of
F any forest land for any non-forest purpose which, in
its opinion, would minimize adverse environmental +
impact.
6. Action of the Central Government on the advice of the
Committee - The Central Government shall, after
G
considering the advice of the committee tendered under
rule 5 and after such further enquiry as it may consider
necessary, grant approval to the proposal with or without
+ -4'

conditions or reject the same."

H 6. A bare perusal of thP. aforesaid provisions would show
A. CHOWGULE & CO. LTD. v. GOA 211
FOUNDATION & ORS. [HARJIT SINGH BEDI, J.]
-¥
that prior approval is required for the diversion of any forest A
land and its use for some other purpose. This is further fortified
by a look at Rule 4 which provides that every State Government
or other authority seeking prior approval under Section 2 of the
Act shall submit a proposal to the Central Government in the
prescribed form and Rule 6 stipulates that the proposals would B
be examined by a committee appointed under Rule 2-A within
~ the parameters and guidelines postulated in Rule 5. There is
nothing on record to suggest that this procedure had been
adopted. Admittedly also the approval for 4.4 hectares had been
obtained long after the lease deed had been executed on 151 c
November 1989 and there is no suggestion that even for this
limited area the procedure envisaged under Rules 4, 5 and 6
had been followed. We are, therefore, of the opinioh even as-
suming that some approval was granted with respect to 4.44
hectares of land in the year 1997, it would not amount to prior
D
approval in terms of the Act and the Rules afore quoted. Mr.
~ . Shrivastava has, however, pointed out that in the light of the
~ judgment in Banshi Ram Modi's case (supra), as the 4.44 hect-
ares of land were to be utilized for the purpose of an existing
and adjoining mining activity, the prior approval envisaged un-
der section 2 was not required. We find, however, that the afore- E
said judgments do not apply to the facts of the present matter
as it is nobody's case that any mining activity was going on
near the land which is now sought to be leased out. In the above
cited cases, the primary question was as to whether in the case
of a lease granted prior to the coming into force of the Act, the F
-1 provisions of Section 2 would apply at the time of the renewal
of the lease after the Act had become operative. Concededly
this is not the case before us and on the contrary in Hyderabad
Abrasives case (supra) it has been specifically observed that
the material date "for the purpose of the Act is not the date of G

- ~
the lease is granted, but the date on which the State Govern-
ment or other authority permits the breaking up, or clearing of
the forest land or any portion thereof', the implication being that
the initial lease deed could be granted earlier to the promulga-
tion of the Act, but for renewal, the provisions of the Act would H
212 SUPREME COURT REPORTS [2008] 12 S.C.R.

A be operable. We also find that the observations in Ambica
Quarry Works, Rural Litigation & Entitlement Kendra,
T.N.Godavarman Thirumulkpad and M.C.Mehta cases (supra),
would indicate that after the coming into force of the Act, the
renewal of a pre-existing mining lease in a forest area can be
B granted only if the requirements of Section 2 are s·atisfied. It is
therefore obvious that the claim of .the appellant confined only
to 4.44 hectares is also untenable for the reasons given above
and that in any case, the benefication plant to which this area
was to be attached had been shifted from its earlier proposed
c location.
7. It has finally been submitted by Mr. Shrivastava that the
land in question was not a forest and was, therefore, not sub-
ject to the provisions of the Act and that in any case, the appel-
lant was willing to reforest an identical area if the lease was
D permitted to operate. We find from a perusal of the High Court
judgment that this question of fact had been adequately dealt
. 1
with based on the affidavits filed in Court and also on a perusal y
of the Revenue record. Some argument has been made by Mr..
Shrivastava on the discordance between the affidavits filed by
E the two Forest Officers, T.Ramaswamy and R. Nagbhushan Rao.
We however discern no difference with regard to the basic fac-
tum as to the nature of the land in question and the only differ-
ence, if at all, is with regard to the number of trees per hectare
said to be growing on the land. We, thus, have no hesitation in
F confirming this finding of fact. In T.N.Godavarman Thirumulkpad
case (s.upra), this Court expressed its dissatisfaction with some
of the Stat~ Governments in the implementation of the provi- +-
sions of the Act and observed thus:
"The Forest Conservation Act, 1980 was enacted with a
G 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 t11ereof. The
H word "forest" must be understood according to its
A. CHOWGULE & CO. LTD. v. GOA 213
FOUNDATION & ORS. [HARJIT SINGH BEDI, J.]

"' -Y dictionary meaning. This description covers all statutorily A
recognized 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 B
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 c
dearly 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 vs. State of Gujarat, Rural Litigation
and Entitlement Kendra vs. State of U.P. and recently in
D
the order dated 29.11.1996 (Supreme Court Monitoring
f . Committee vs. 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 E
the decisions of this Court to dispel the doubt, if any, in the
perception of any State Government or authority."
8. We are, therefore, of the opinion that in the light of the
aforesaid emphatic and clear cut observations, and findings of F
fact, there can be no doubt that the land leased out to the appel-
lant was indeed a forest.
9. Some 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 G
connection, some observations need to be made. The basic
.... l question is as to what is implied by the terms afforestation or
re-forestation. Is it merely the replacement of one tree with an-
other or does it imply some thing a little more complex? "Refor-
estation is the restocking of existing forests and woodlands H
214 SUPREME COURT REPORTS [2008] 12 S.C.R.

A which have been depleted, with native tree stock, whereas af-
forestation 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
s 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 lo .

not meet the fundamentals and the planting of new trees to match "·
the numbers removed is too simplistic and archaic a solution,
c 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 environmen-
tal system. It must be borne in mind that both re-forestation and
afforestation envisage a resurrection and re-plantation of trees
0
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 environ-
ment have destroyed the ecosystem dependent on them. This
E 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 de-
struction of plantations alongside the arterial roads in India. 30
years ago all arterial roads had huge peripheral forest cover
F 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 planta-
tions to widen the roads to meet the ever growing needs of the
traffic, and their replacement by trees of non-indigenous variet-
G ies, (which are often not eco or bird friendly) in the restricted
and remaining areas bordering the wi~ened roads, the shelter
for birds has been destroyed and where thousands of birds once -f ..
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
H remember that a drive along the Grand Trun!.z Road, National
A. CHOWGULE & CO. LTD. v. GOA 215
FOUNDATION & ORS. [HARJIT SINGH BEDI, J.]
+
Highway No.1, northwards of Delhi, particularly during the hours A
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 fad-
ing into silence as darkness set in. Sadly, all that can now be
seen are crows feeding on the decaying and mutilated car- B
casses of dogs and other animals killed by speeding vehicles.

-t'
' Equally disturbing is the decrease in the reptilian population as
the undergrowth in which it lived and prospered has been de-
~
"' strayed, and with the concomitant increase in the rodent popu-
lation, colossal losses .and damage to the farmer and in the c
storage of food grains.
10. We are, therefore, of the opinion that there is no merit
in the appeal. It is accordi!1gly dismissed. No order as to costs.
B.B.B. Appeal dismissed.
D
I .
v