1

BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH

NEW DELHI

…………..

M.A No. 1166 of 2015 (I.A No. 2469 of 2009) M.A No. 1169 of 2015 (I.A No. 3877 of 2015)

In W.P (C) No. 202 of 1995

And M.A No. 1164 of 2015 (I.A No. 2939 of 2010) In W.P No. 202 of 1995

M.A. No. 1164A of 2015 (I.A. No. 3023 of 2010) M.A. No. 1164B of 2015 (I.A. No. 3024 of 2010) M.A. No. 1164C of 2015 (I.A. No. 3030 of 2010) M.A. No. 1164D of 2015 (I.A. No. 3032 of 2010)

And Original Application No. 494/2015 In C.W.P No. 130/2011

In the matter of : 1. M.A No. 1166 of 2015 (I.A No. 2469 of 2009)

M.A No. 1169 of 2015 (I.A No. 3877 of 2015) In

W.P (C) No. 202 of 1995 M.A. No. 1164A of 2015 (I.A. No. 3023 of 2010) M.A. No. 1164B of 2015 (I.A. No. 3024 of 2010) M.A. No. 1164C of 2015 (I.A. No. 3030 of 2010) M.A. No. 1164D of 2015 (I.A. No. 3032 of 2010) T.N Godavarman Thirumalpad .….Applicant

Versus

Union of India & Ors ....Respondent

2. M.A No. 1164 of 2015 (I.A No. 2939 of 2010) In

W.P No. 202 of 1995 In

W.P No. 202 of 1995 T.N Godavarman Thirumalpad .….Applicant

Versus

Union of India & Ors ....Respondent

3. Original Application No. 494/2015

In C.W.P No. 130/2011 Bali Ram Singh ….Applicant

2

Versus

1. State of Uttar Pradesh,

Through Chief Secretary, Uttar Pradesh Secretariat, Lucknow, Uttar Pradesh

2. Principal Secretary (Forest),

Government of Uttar Pradesh Bapu Bhawan, Lucknow, Uttar Pradesh.

3. Secretary,

Ministry of Environment and Forest, Government of India Prayavaran Bhawan, CGO Complex, Lodhi Road, New Delhi

4. Ajay Sharma, Executive President

Jai Prakash Associates Limited Cement Division Corporate & Registered Office Sector 128, Noida-201304, U.P (India) Head Office: JA House, 63, Basant Lok, Vasant Vihar, New Delhi-110057 (India)

5. Shri V.K Sharma, Vice President

Jai Prakash Associates Limited Mines Division Corporate & Registered Office: Sector 128, Noida-201304, U.P (India) Head Office: J.A House, 63, Basant Lok, Vasant Vihar, New Delhi-110057 (India)

......Respondent

Counsel for Applicant: In M.A. No. 1166 of 2015 : Mr. Harin P. Raval, Sr. Adv. In M.A. No. 1169 of 2015 : Mr. Harin P. Raval, Sr. Adv. In M.A. No. 1164 of 2015 : Mr. Pinaki Misra, Sr. Adv. Original Application No. 494 of 2015 : : Mr. S.P. Singh, Sr. Adv. Counsel for Respondent(s): Mr. Harin P. Raval, Sr. Adv, Mr. Huzefa Ahmadi, Sr. Adv, Mr. Abhishek Chaudhary, Mr. M.R Shamshad, Ms. Harshita Deshwal, Advs, for Respondent No.1, Ms. Shakshi Popli, Adv for MoEF, Mr. Pinaki Mishra, Sr. Adv with Mr. Pawan Upadhya, Ms. Ruby Singh Ahuja, Ms. Akansha Munjal & Mr. Harsh Trivedi, Advs for Jaypee Associates Ltd.

Amicus Curiae: Mr. A.D.N. Rao, Mr. Sudipto Sircar, Ms. Ankita Chadha, Mr. Rahul Mishra & Mr. Annam Venkatesh, Advs.

3

O R D E R

CORAM:

HON’BLE MR. JUSTICE M. S. NAMBIAR, JUDICIAL MEMBER

HON’BLE MR. JUSTICE RAGHUVENDRA S. RATHORE, JUDICIAL MEMBER HON’BLE DR. D.K AGRAWAL, EXPERT MEMBER HON’BLE MR. PROF. A. R.YOUSUF, EXPERT MEMBER

Reserved on: 21st April, 2016

Pronounced on: 4th May, 2016

JUSTICE M.S NAMBIAR (JUDICIAL MEMBER)

1. Whether the judgment is allowed to be published on the net?

2. Whether the judgment is allowed to be published in the NGT

Reporter?

M.A. No. 1166 of 2015 & (I.A. No. 2469 of 2009), M.A. No. 1169 of

2015 (I.A. No.3877 of 2015) and M.A. No. 1164 of 2015 (I.A. No.

2939 of 2010) In W.P. (C) No. 202 of 1995 And Original

Application No. 494/2015 In C.W.P. No. 130/2011.

The Government of Uttar Pradesh (in Short ‘U.P.’) set up a

Cement Factory at Churk and Dalla in 1954 after acquiring 130.46

hectares of land vide Notification 160/18 dated 20th February, 1965.

On 01st April, 1972 U.P. State Cement Corporation Ltd. (in short

‘UPCCL’) was incorporated. On the same day, all the assets owned by

the Government Cement Factory at Churk and Dala were transferred

to UPCCL by a transfer deed, executed between UPCCL and

Government of U.P.. On 30th April, 1976 mining lease was granted to

UPCCL for Dalla Lime Stone Mines over an area admeasuring 751

hectares in village Kota for a period of 20 years ending with 30th April,

1996. 1266 hectares of land in Markundi, Makribari and Beranchua

villages was granted on mining lease to UPCCL on 29th January, 1977.

Another mining lease was granted to UPCCL over 87 hectares of land

4

in Panarai village on 24th October, 1974. All these leases provide a

renewal clause.

On 01st January, 1967 a Notification was issued under Section 4

of Indian Forest Act (in short ‘Forest Act’) declaring the intention to

constitute Reserved Forest admeasuring 399.51 hectares in village

Makribari. On 29th September, 1969 and 21st December, 1973,

Notifications were also issued under Section 4 of the Forest Act in

respect of 18709.612 hectares in Village Panari. On 01st May, 1970, a

Notification under Section 4 of the Forest Act in respect of 1680.400

hectares in village Markundi was also issued. On 30th January, 1977,

Notification under Section 4 of the Forest was also issued declaring

the intention to constitute Reserved Forest of around 2168 hectares of

land in Kota village. On 02nd March, 1977 another Notification under

Section 4 of the Forest Act was also issued in respect of 19437.78

hectares in Kota Village. On 10th August, 1982, while the Notification

under Section 4 dated 1st May, 1970 in respect of Markundi village

was prevailing, vide Notification dated 10th August, 1982, 495.3

hectares, out of the 1680.400 hectares, was declared under Section

18(1) of the Wildlife Protection Act 1972, including it in Kaimur

Wildlife Sanctuary. UPCCL became a sick industry in 1992 and came

under liquidation, by order dated 08th December, 1999 passed by the

Hon’ble High Court of Allahabad in Company Application 4/97. On

the recommendations of BIFR, UPCCL was wound up by the Hon’ble

High Court. The assets of UPCCL were thereafter put to auction by

the official liquidator. M/s. Jay Prakash Associates Ltd. (in short

‘M/s. JAL’) who quoted Rs. 459 Crores, was the highest bidder. It was

5

accepted by the Hon’ble High Court by order dated 30th January,

2006. By order dated 11th October, 2006, the sale was confirmed.

The assets to be transferred to M/s. JAL included the Kajarahat (Kota)

Lime Stone, having a total mining lease area of 815.82 hectare,

Ghurma (Markundi/Makribari) Mines having a mining lease area of

1266 hectares and Panari (Ningha) Marble Mining lease, having a

mining lease area of 87 hectares which originally belonged to Uttar

Pradesh Cement Corporation and Bhalua Lime Stone having a mining

lease area of 643.433 hectare, Julgul Mines having a mining lease

area of 384 hectares and Bari Mines, having a mine lease area of

670.575 hectares, which originally belonged to UP State Mineral

Development Corporation (in short ‘UPSMDC’). The successful bidder

M/s. JAL, filed Civil Miscellaneous Application 145925 of 2007 before

the Hon’ble High Court for a direction to the State of U.P. to renew

and transfer the mining leases detailed in the Memorandum of

Information (MoI). By order dated 12th October, 2007, Hon’ble High

Court disposed the said application directing that the mining lease of

UPCCL will be renewed by the State Government in favour of M/s.

UPCCL and transferred to M/s. JAL without any further delay and the

entire formalities with regard to renewal of lease, including

preparation of mining plans will be completed within a period of six

weeks and the lease will be transferred to M/s. JAL within the same

period either by the same order or by separate orders. It was further

held that the objection of the State Government for renewal of the

mining leases in respect of 1033.66 hectares out of 2168 hectares, the

area covered under the mining leases, but included within the

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Notification issued under Section 4 of the Forest Act, is not

sustainable.

The state of U.P. from time to time had issued Notifications

under Section 4 of the Forest Act declaring the intention to constitute

the reserved forest in respect of about 7.89 lakhs area falling in Tehsil

Dudhi and Robartganj. It was the subject matter of lis the Hon’ble

Supreme Court in Writ Petition (Criminal) No. 1061 of 1982 (Banwasi

Seva Ashram Vs. State of U.P. and Ors.). The Hon’ble Supreme Court

by judgement dated 20th November, 1986 laid down a detailed

procedure for settlement of claims, in respect of the land notified

under Section 4 of the Forest, based on the grievances relating to the

claims of the Adivasis living the Dudhi and Robertganj Tehsils in the

District of Mirzapur. The Hon’ble Supreme Court directed that within

six weeks from 01st July, 1986 the demarcation pillars shall be raised

by the Forest Department identifying the land covered under the

Notifications issued under section 4 of the Forest Act. The fact that

Notifications had been published under Section 4 of the Forest Act

and demarcating pillars have been raised in the locality to clearly

identify the property subjected to the Notifications, shall be directed to

be widely published by beat of drum in all the villages and copies of

notices printed in Hindi will be circulated in abundant number

through Gramasabhas, giving reasonable specifications which are

covered by the notifications to enable the people of the area who are

likely to be affected by the notifications to get the information as to

whether their lands are affected by the notification, so as to enable

them to decide whether any claim need to be filed. In regard to the

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lands notified under Section 4, but no notification of reserved forest

under Section 20 of the Forest Act has been made, and no claim has

been filed within the time specified in the notification as required

Section 6(c) of the Forest Act, such claim shall be allowed to be filed.

The demarcation shall be completed by 15th January, 1987. Within

three months from that date, claims as contemplated under Section

6(c) shall be received. Adequate number of Record Officers shall be

appointed by 31st December, 1986. Five experienced Additional

District Judges are to be posted to exercise the powers of Appellate

Authority as provided under Section 17 of the Forest Act. After the

Forest Settlement Officer entered the findings, the records shall be

placed before the Additional District Judge of the area, even though

no appeal is filed. The appeals are to be disposed by the Additional

District Judge. When the Appellate Authority finds that the claim is

admissible, the State Government shall honour it and proceed to

implement the same. Until the determination by the Appellate

Authority, Status Quo as then stood was directed to be continued and

it was directed not to notify under Section 20 of the Act in respected of

these lands, till the matter was decided by the Additional District

Judge. Pursuant to the said directions, the Forest Settlement Officers

decided the claims and they were examined by the Additional District

Judges as Appellate Authority, either in appeal filed by the parties or

suo-moto, in respect of 433 villages, except 12 villages. In village Kota

and Obra (Panari) also, after elaborate settlement of rights, decisions

were finally made, which include the mining lease area of UPCCL and

UPSDMC which were later transferred to M/s. JAL in the auction sale.

8

The details of the said villages, the dates of decisions made by the

Forest Settlement Officer and the Additional Judges are as follows:-

Sl.

No.

Name of

the Village

FSO Case & Order Date DJ Case & Order Date

1. Kota 3884/91 Dated 16.04.1992 4766/92 Dated 28.10.1993

2. Kota 3875/91 Dated 16.04.1992 4760/92 Dated 28.10.1993

3. Kota 11272/91 Dated 16.04.1992 4771/92 Dated 28.10.1993

4. Kota 11236/91 Dated 10.03.1992 3866/92 Dated 02.07.1993

5. Kota 3876/91 Dated 24.04.1992 4845/92 Dated 07.10.1993

6. Kota 3169/91 Dated 31.03.1992 4382/92 Dated 16.09.1993

7. Kota 3883/91 Dated 16.04.1992 4401/92 Dated 17.09.1993

8. Kota 3156/91 Dated 31.03.1992 4416/92 Dated 20.10.1993

9. Kota 3186/91 Dated 30.03.1992 4415/92 Dated 20.10.1993

10. Kota 3050/91 Dated 31.03.1992 4375/92 Dated 16.09.1993

11. Kota - 226/94 Dated 08.02.1996

12. Kota 11235/91 Dated 20.07.1992 4027/92 Dated 21.12.1993

13. Kota 4053/91 Dated 25.03.1992 3902/92 Dated 06.07.1993

14. Kota - Rev. 762/94 Dated

08.02.1996

15. Kota 4115/91 Dated 25.03.1992 3976/93 Dated 06.07.1993

16. Kota 11161/91 Dated 28.12.1992 -

17. Obra

(Panari)

2945/91 Dated 02.05.1991 1257/91 Dated 28.09.1993

18. Obra

(Panari)

2970/91 Dated 04.05.1991 1282/91 Dated 28.04.1993

19. Obra

(Panari)

2864/91 Dated 02.05.1991 1176/91 Dated 28.09.1993

20. Obra

(Panari)

2933/91 Dated 18.04.1991 1245/91 Dated 30.04.1994

21. Obra

(Panari)

2565/91 Dated 02.05.1991 877/91 Dated 30.04.1994

22. Obra

(Panari)

2963/91 Dated 18.04.1991 1275/91 Dated 29.09.1993

23. Obra

(Panari)

2635/91 Dated 02.05.1991 947/91 Dated 06.08.1993

24. Obra

(Panari)

2665/91 Dated 01.05.1991 977/91 Dated 30.04.1994

25. Obra 2909/91 Dated 02.05.1991 1221/91 Dated 30.09.1993

9

Sl.

No.

Name of

the Village

FSO Case & Order Date DJ Case & Order Date

(Panari)

26. Obra

(Panari)

2934/91 Dated 01.05.1991 1246/91 Dated 30.04.1994

27. Obra

(Panari)

2941/91 Dated 02.05.1991 1253/91 Dated 30.04.1994

Based on a letter received by the Central Empowered Committee

(in short ‘CEC’) appointed by the Hon’ble Supreme Court, CEC

informed the Principal Chief Conservator of Forest, U.P., letter dated

08th September, 2008 to ensure that no land notified under Section 4

of the Forest Act is allowed to be used/leased for mining and other

non-forest uses, without first obtaining approval under the Forest

Conservation Act 1980 (in short ‘FC Act) and the permission of the

Hon’ble Supreme Court for the dereservation. It was also stated that

the same should be ensured, even if the Forest Settlement Officer has

decided for delineation of the area.

The CEC examined the entire matter in detail and submitted

before the Hon’ble Supreme Court, the following recommendations

dated 07th August, 2009:-

i. The orders passed by the Forest Settlement Officer for

exclusion of 1083.231 ha. of area notified under Section 4 of

the Indian Forest Act, from the Reserved Forest should be set

aside. All these areas should be included in the Reserved

Forest. The renewal/transfer of mining leases in favour of

M/s. Jaiprakash Associates Ltd. should be allowed only after

obtaining the approval under the Forest (Conservation) Act for

10

the above areas. In respect of the area of the mining lease

falling in Kaimur Wild Life Sanctuary, the renewal/transfer

should be allowed only if the permission of the Hon’ble

Supreme Court is also received.

ii. All permissions granted for grant/renewal of the mining leases

and other non-forestry activities on areas notified under

Section 4 of the Indian Forest Act and for which the

settlement of rights was earlier done as per the Hon’ble

Supreme Court judgement dated 20.11.1986 in Writ Petition

(Criminal) No. 1061 of 1982 should immediately be revoked by

the State of U.P. It should be ensured that all non-forestry

activities, including mining thereon are immediately stopped;

and

iii. The notifications issued under Section 20 of the Indian Forest

Act in respect of village falling in Tehsil Dudhi and Robertganj

should be modified so as to include areas originally decided to

be kept as Reserved Forest under the settlement proceedings

carried out as per the directions of the Hon’ble Supreme Court

in Writ Petition (Criminal) No. 1061 of 1982. These will

include areas excluded on the ground that they are under

existing/proposed mining leases.

In Writ Petition 202/1995, (T.N. Godavarman Thirumalpad Vs.

Union of India and others) State of U.P. filed the IA 2469/09 raising

the following prayers:-

“A. Permit the State Government to renew the mining leases to

comply with the judgement of Hon’ble High Court dated

11

12.10.2007 as the lands for mining purpose fall under the

category of non-forest land after the settlement under the

provisions of the Indian Forest Act, 1927.

B. That the relief regarding non-forest purpose is being claimed for

the land not notified under Section 20 of Indian Forest Act and

the notification of Section 20 issued on 25.11.2008 (Annexure A-

5) may kindly be confirmed.”

The State of U.P. in the application contended that the aim of

setting of UPCCL was mainly to develop cement industry in the belt

where limestone was available. It was set up dry process slack

cement plant in place of wet process and to install split location plant

having clinkerisation at Dala and Chunar. Unfortunately being

unable to meet the rising cost of input and increased competition in

the market, UPCCL became a sick industry in 1992 and by the orders

of Hon’ble High Court in Company Application 4/97, it was wound up

on 08th December, 1999. The assets of UPCCL was put to auction and

successfully purchased by M/s. JAL. In the advertisement inviting

bidders, two types of properties were shown, firstly free hold

properties, secondly the leased properties. M/s. JAL after depositing

amount of auction demanded renewal of mining lease. The Hon’ble

High Court on 12th October, 2007 held that the purchaser of the

assets, with express promise of mining leases of the company in

liquidation, is not asking for grant of fresh leases or bringing fresh

areas, either intended to be declared or declared as forest for the

purpose of mining. It is a case of renewal and transfer of expired

mining leases in the area, which were prospected by the UPCCL, since

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1976 upto February, 1998, after which production was stopped due to

commercial losses. Objection of the State Government for renewal of

mining leases in respect of 1033.66 hectares, on the ground that it is

covered by notification under Section 4 of the Forest Act as such

cannot be sustained. The Hon’ble High Court also directed the State

Government to renew the leases in favour of UPCCL and transfer them

to M/s. JAL without any further delay with a direction to complete

preparation of mining plan within a period of 6 weeks and to transfer

the same to M/s. JAL either by the same orders or by separate orders.

The State of U.P. also contended that notification under Section 4 of

Forest Act is an expression of intention to acquire the land for forest

and a complete procedure is provided under Section 6 to 19 and

Section 20 provides the ultimate final declaration. The notification

under Section 20 regarding all the lands mentioned in the notification

under Section 4 had not been issued and till Section 20 notification is

issued, the land would not be deemed to be a reserved forest area and

therefore there was no occasion for the State Government to approach

the CEC, or the Hon’ble Supreme Court, before issuing final

notification under Section 20 of the Forest Act. In the meanwhile, the

notice dated 08th September, 2008 issued by CEC was received by the

State Government calling for comments on the allegation that land

covered under Section 4 is a forest land and therefore permission of

Central Government is necessary. It is contended that mining leases

of the land falling under the category of non-forest land, after the

settlement by Forest Settlement Officer under the provision of Forest

Act, has not been renewed. It was also contended that the order

13

passed by Hon’ble Supreme Court on 12th December, 1996 in NTPC

case is confined to forest, as defined by the Hon’ble Court in the said

Judgment and the definition given in different judgments, in

particular NTPC case, will not apply, as they would apply only to the

lands statutorily recognised forest, lands recorded as forest in the

revenue record and such land which can the termed to be forest as

per its dictionary meaning.

It is their case that Section 4 of the Forest Act cannot be read in

isolation but is to be read with the aid of other sections of the Forest

Act and a perusal of Section 4 to 20 would reveal that after issuance

of notification Section 4, a person as notified may object that the land

should not be declared as reserved forest. In case he succeeds to

show that the land is not a forest land, the same will settle with him.

The disputed lands were being used for mining activity. Forest

Settlement Officers after due process of settlement reached the

conclusion that certain land is not a forest land. The Government has

to fulfill its obligation arising out of the auction proceedings. Since

the matter of lands has now been settled and certain land has been

held to be out of the preview of the reserved forest, no permission of

Central Government is needed with regard to the same. It was

contended that the transfer of mining leases, with relief and

concessions constitute the essential and integral part of the

component and the reliefs and concessions were extended by way of

special consideration in the larger interest of the State to keep the

industry running, making production and providing employment to

the people. Therefore without renewal of the mining leases it is not

14

possible to carry on the activity and the whole process will be

frustrated. Notification under Section 4 of the Forest Act will not

convert a land into a land of Forest area. After the decisions of

Settlement Officers, the consequential order for non-forestry purpose

is required only for the portion of the land falling within the area

notification issued under Section 20 and not for the excluded portion.

It is on these contentions of the State sought to the reliefs stated

earlier.

On 17th January, 2007 M/s. JPA preferred claim petitions under

Section 9 and 11 of the Forest Act, before the Forest Settlement

Officers (in short ‘FSO’) for the lands covered by the mining leases in

village Kota, Panari, Markundi and Makribari, for exclusion of the said

area from the notification issued under Section 4. The Forest

Department filed objections explaining the factual position, including

the decisions taken in respect of the land earlier which have already

attained finality. The FSO on 05th February, 2007 dismissed the claim

petition on the ground that the FSO has already completed the

settlement and the Appellate Authority confirmed the order and

therefore it is not competent to entertain fresh claims. The records

were sent to the Appellant Court. As Additional District Judge was

not posted at that time, District Judge, Sonbhadra by order dated 27th

August, 2007 finding that M/s. JAL was not a party in the earlier

proceedings and therefore the finding of the FSO that in view of the

earlier decisions he cannot entertain the application filed by M/s. JAL,

is not sustainable. The decision of the Forest Settlement Officer was

set aside and the matter was remanded for fresh settlement, Forests

15

Settlement Officer by order dated 19th September, 2007 the FSO after

remand, upheld the claims and directed to exclude the lands from the

notification issued under Section 4. Suo-moto appeal was again sent

to the District Judge. By order dated 07th January, 2008, the District

Judge confirmed the order of the Forest Settlement Officer and upheld

the exclusion of the area from section 4 of notification. The area

included 599.211 hectares of land of Obra Forest Division, 230.844

hectares of land of Sonbhadra Forest Division and 253.176 hectares of

land of Kaimur Wildlife Sanctuary, being a total of 1083.231 hectares.

Later State of U.P. changed their stand and filed an additional

affidavit dated 01st May, 2015 before the Hon’ble Supreme Court

praying that “since the matter involves larger public interest involved,

including a majority population of tribal and backward communities,

as well as ecological benefits due to the involvement of a large area of

forest land which will have direct implications on the sustainable

environment management of the area and ecological benefits, IA 2469

of 2009 filed earlier be disposed off in the light of the submissions and

the recommendations of the CEC”. The Hon’ble Supreme Court

directed to number the additional affidavit as IA 3877 of 2015. The

State in the said additional affidavit filed by Shri Sunil Pandey,

Secretary of Forest contended that the CEC submitted its

recommendation on 07th August, 2009 and thereafter an affidavit on

behalf of Union of India was filed, wherein the Ministry was in

agreement with the findings and recommendations of the CEC and on

such facts and circumstances, the State Government reviewed the

matter and found that settlement of rights in 433 villages lying south

16

of Kaimur hill range, including the four villages which are subject

matter in the case, have already been settled in the light of the

directions of Hon’ble Supreme Court dated 20th November, 1986 in

Banwasi Seva Ashram case. In the settlement proceedings carried out

by the FSOs in 2007-2008, on the basis of the claim filed by the M/s.

JAL, overlooked the fact that the settlement in the concerned villages

have already been carried out earlier in 1986 and those decisions have

attained finality. Mining being a commercial as well as non-forest

activity, requires permission under the FC Act. Hence provisions of

the FC Act will have to be followed. The area measuring 253.176

hectare of Markundi village fall in Kaimur Wildlife Sanctuary. As per

the order of the Hon’ble Supreme Court, no area of any protected

sanctuary, can be denotified without the consent of Hon’ble Supreme

Court and the National Board for Wildlife. Yet the FSO excluded

253.176 hectares which falls within the Wildlife Sanctuary and settled

claims in favour of M/s. JAL and it is bad in law. All the forest areas

of the state are managed on the basis of working plans, which

prescribes the various operations for the improvement and

management on a sustainable basis so that the benefit can accrue

from forests. Revised Working Action Plan which has been submitted

to MoEF on 22nd February, 2013 have not been approved on account

of exclusion of 1083.231 hectare. Hence management of forest is

being affected, causing not only loss of financial resources to the State

but loss of livelihood to the local villagers having significant impact on

the ecological balance and tribal rights and concessions. The

Comptroller and Auditor General of India in Audit Memo No. 19 of 19th

17

March, 2012 have mentioned a loss of Rs. 409.09 Crore to the State.

The exclusion of large area from Section 4 of notification, has resulted

loss of forest land. In view of the said facts State Government realised

that a request is to be made to the Hon’ble Supreme Court to dispose

the matter in the light of the recommendations of the CEC.

The Ministry of Environment and Forest (in short ‘MoEF’)

through the Conservator of Forest, Central Regional Office, Lucknow

filed an affidavit in I.A. No. 2469 of 2009, submitting that he was

appointed as the Inquiry Officer in the matter by CEC and he

submitted four reports and thus conversant with the facts of the case.

It was contended that in respect of above 7.89 Acres of land in Tehsil

Dudhi and Robertganj, issued notifications from time to time under

Section 4 of the Forest Act which was the subject matter before the

Hon’ble Supreme Court in Banwasi Seva Ashram, Writ Petition

(Criminal) No. 1061 of 1982.

The Hon’ble Supreme Court issued various directions by orders

dated 20th November, 1986, and later on 08th February, 1989.

Referring the said orders it was contended that the land which are

subject to the notification under Section 4 of the Forest Act would also

come within the purview of Section 2 of the FC Act, 1980 and

therefore it would be necessary to obtain appropriate clearance under

that Act from the appropriate Authority. Pursuant to the above orders

the process of settlement of rights by the Forest Settlement Officer

and Suo-moto examination of the decisions of the Forest Settlement

Officer and by the Additional Judges as Appellate Authorities had

18

taken place in all 430 villages. By 1993-1994 except 12 villages the

settlement of the remaining were completed. In the villages Kota and

Obra (Panari) where the mining leases of UPCCL and USDMC before

transfer to M/s. JAL are located, elaborate process of settlement of

rights in terms of the directions of the Hon’ble Supreme Court took

place.

As per the information provided by the State of Uttar Pradesh,

forest area falling in the mining leases to be transferred to M/s. JAL

have so far been broken for mining by UPCCL. The details of the

areas broken for mining by UPCCL are Kota (Kajarahat) 44.99

hectares, Kota Padrach Nil, Obra (Panari) 3.53 hectares Makribari Nil

the total being 48.52 hectares. The Hon’ble Supreme Court reviewed

the settlement progress and passed an order on 18th July, 1994 that

“it has been stated by Justice Loomba in his 14th report that an area

about 26947 acres in about 12 villages covered by notification Section

4 of Forest Act, as in fact being dealt with under Section 54 of U.P.

land revenue Act. We direct revenue Secretary, Govt. of U.P. to set up

special officers to deal with this area in terms of our order dated 20th

November, 1986. We further directed revenue Secretary to implement

the decisions given by the Forest Additional District Judges in various

appeals and review decided by the Learned Judges. We close the

proceedings of this case. We however, give liberty to parties to

approach this court as and when become necessary to do so for

obtaining necessary directions”. According to the MoEF after the

decisions of Hon’ble Supreme Court dated 18th July, 1994, the

Government of U.P. vide Office Memorandum dated 21st July, 1995

19

appointed Shri Shivbux Lal, Assistant Record Officer, Sonbhadra as

Special Officer for remaining 12 villages. It clearly shows that

settlement process were completed and appeals were decided in 421

villages out of 433 villages as per the orders of the Hon’ble Supreme

Court and therefore there was no further scope for re-settlements of

forest land.

The UPCCL, having thousands of employees working in

Limestone Mining situated inside the forests area, filed various claims

under Section 6 of the Forest Act before the FSO such as a Forest

Settlement case 3891/1991 and 5020/1992, in which Shri Bhagwat

Singh, Clerk appeared for UPCCL on 28th October, 1992 and sought

for exclusion of 164.513 hectares, the FSO passed an order for the

exclusion of 164.513 hectares, from the Section 4 notified land in

favour of UPCCL. It was therefore clear that settlement process were

completed as directed by Hon’ble Supreme Court in Banwasi Seva

Ashram case. But the FSO Shri B.K. Srivastava after a gap of more

than 15 years heard the case filed by M/s. JAL under Section 7, 9 &

11. The act the FSO was without jurisdiction, as settlement process

were completed and even appeal was finalized under Section 17 of the

Forest Act. Shri B.K. Srivastava could have heard the forest

settlement cases, only in respect of the remaining 12 villages. The

said FSO thereafter in various appeals filed by M/s. JAL passed

orders excluding 1083.231 hectares, in orders in Forest Settlement

cases 180/353, 181/354, 386/388, 395/397, 396/398, 399/401 and

398/400 dated 25th January, 2008. These orders were confirmed by

orders dated 07th January, 2008, 10th July, 2008, 14th July, 2008 and

20

16th July, 2008 respectively. It is surprising that the State

Government, which did not issue notification under Section 20 even

after lapse of 12-15 years of confirmation of the areas under Section

17 of the Forest Act instructed by letter dated 14th February, 2008 to

submit draft notification under Section 20 within two days of the

orders excluding 1083.23 hectares from the forest land in favour of

M/s. JAL. The FSO could not have excluded the notified land under

Section 4, under Section 11, by which only claims of community

rights, rights of way or rights of pasture or rights of various produce

or water course only could have been excluded. The State of U.P. did

not provide Government pleaders to the Forest Department in respect

of the various cases filed by M/s. JAL. The special prosecutor (Forest)

was not allowed by the FSO to represent. The facts submitted by the

Government counsel that the disputed plot was never a forest land

and accepting the case that since 1372 disputed plot was entered as

mountain and the disputed plot is not under the category, as

described in Section 3 of the FC Act, and therefore it was irregularly

notified under Section 4 and the disputed plot is not fit for being

declared as a reserved forest. These facts are totally false and

fabricated. Notification under Section 4 was issued by the Forest

Department of State of U.P. after proper scrutiny. Many areas

recorded as jungle in revenue records have good forest density upto

0.9. Photographs taken in May, 2009 shows good quality

miscellaneous forest in the land excluded by the FSO. The forest area

of Makribari village is part of Kaimur Wildlife Sanctuary notified on

10th August, 1982 by which a total of 495.3 hectare of Makribari

21

Reserve Forest is included in the Sanctuary. The said land could not

been excluded by the FSO. By order dated 25th January, 2008, the

FSO excluded 253.176 hectares in FS case 398/400. The said order

is without jurisdiction and in violation of the order of the Hon’ble

Supreme Court dated 13th November, 2000 wherein the Hon’ble

Supreme Court directed pending further orders, no dereservation of

forest/sanctuary/national park shall be affected. 399.51 hectares of

land of Makribari villages is notified under Section 20 of Forest Act as

a reserved forests by then Secretary (Forest) notification dated 26th

February, 1986. However FSO, Sonbhadra in Case No. 399/401

dated 07th January, 2008, excluded 230.44 hectares, despite its non-

confirmation by District Judge and State Government arbitrarily

reduced the forest area by notification dated 25th November, 2008.

The exclusion of 1083.27 hectares by FSO and their confirmation by

the Additional District Judge was illegal. So also the change of the

status of the forest in revenue record to non-forest land is illegal and

in violation of the directions of the Hon’ble Supreme Court in T.N.

Godavaran Vs. Union of India dated 12th December, 1986. The

change of status of the forest land in revenue records is also contrary

to the directions of the MoEF. It has resulted in monetary benefit to

M/s. JAL due to non-payment of money of NPV, compensatory

aforestation and development of tribal and wildlife to the tune of Rs.

409 Crores namely NPV 192.80 Crores, cost of non-forest land being

Rs. 133.78 Crores, cost of penal compensatory afforestation Rs. 21.64

Crores and cost of development of tribal and wildlife of Rs. 50 Crores.

On receipt of the complaints the Divisional Commissioner, Mirzapur

22

was directed to enquire the matter. The Divisional Commissioner

constituted a committee who submitted inquiry report on 07th June,

2008 which was accepted by the Divisional Commissioner. The

disputed land is reserved forest land. Seven cases which were decided

by FSO relate to the land owned by the Central Government. Shri

B.K. Srivastava, the FSO was found to be guilty and recommendations

submitted to take punitive and criminal proceedings against him.

Pursuant to the application filed by the State of U.P., CEC was

directed to submit a report on the facts along with the

recommendations. The recommendations submitted by the CEC is

accepted by the Ministry of Environment & Forest. Shri Balram

Singh, the applicant in Original Application in Writ Petition 130 of

2011, filed a complaint before the Hon’ble Prime Minister dated 23rd

October, 2009 that 24,000 hectares of forest area, have been excluded

from notified forest in favour of M/s. JAL for unauthorized

construction of J.P. Super Cement Plant project, illegal mining and

other non-forest activities. It was forwarded to Secretary, MoEF. The

CCFL (Central) Regional office deputed Mr. Y.K. Singh Chauhan as an

Inquiry Officer. He conducted inquiry and submitted the

recommendations including action to be taken against the concerned.

By letter dated 01st June, 2010, the Divisional Forest Officer, Obra

was directed to immediately stop and explain what action has been

taken by the Divisional Officer for illegal construction by M/s. J.P.

Super Cement Plant. The Divisional Forest Officer informed that

construction is being carried on plot 3200 instead of excluded plots

from Section 4 notified area. M/s. JAL was directed to stop further

23

construction immediately. In the reply M/s. JAL denied violation and

contended that it has stated in the tender document that the freehold

land did not have any forest and mining activity is taking place on it.

The 35 hectares of land in plot 3200 is a freehold land owned by M/s.

JAL and is not a lease hold land. These assets were sold to M/s. JAL,

being a successful bidder on as a whole and as is where is and

whatever their basis and as a going concern. Repair of the roads have

been undertaken only on the free hold land. The recommendations

submitted by CEC are not the order of the Hon’ble Supreme Court

where the matter is subjudice. The prayer of the State of U.P. to

exclude 1083.231 hectares, include the land within the Kaimur

Wildlife Sanctuary. By letter dated 27th March, 2009 and 10th June,

2009 Regional Office of MoEF requested the Principal Secretary,

Forest U.P. to stop illegal construction and other non-forest activity

being carried out by M/s. JAL is in violation of FC Act. Still no action

was taken. On 08th September, 2008 the CEC requested the U.P.

Forest Department to ensure that no land notified under Section 4 is

allowed to be used/leased for mining and other non-forest uses

without first obtaining the approval from Central Government under

the FC Act and the permission of the Hon’ble Supreme Court for

dereservation of the same. Regional Office, MoEF issued various

letters requesting the Chief Conservator of Forest, Mirzapur, U.P. and

PCCF, U.P. to stop the illegal construction and non-forest activity

carried out by M/s. JAL. However, no effective steps were taken. The

order passed by the Hon’ble High Court of Allahabad on 10th

December, 2012, directing renewal of the lease in respect of 1033.66

24

hectares was not challenged by the State of U.P. As per the guidelines

and clarification for Forest (Conservation) Act, 1980, published by the

Government of India, MoEF on June 2004, under 1.1(i) lands which

are notified under Section 4 of the Forest Act would also come within

the preview of the FC Act. These guidelines and clarifications were

approved by the Hon’ble Supreme Court on 01st August, 2003 in I.A.

No. 944 and 800 and was directed that the Central Government to

take appropriate decision after examining the same in accordance

with Act, Rules framed there under guidelines on National Forest

Policy, 1988. When the State Government has violated the order of

the Hon’ble Supreme Court and has not complied with the order dated

12th December, 1996, their prayer in I.A. 2469 of 2009 can only be

dismissed. The Ministry sought direction staying further construction

of J.P. Super Cement Plant in Kota Reserve Forest on plot 3200 and

not to allow non-forest activities in plot 3205, 3206 and 3211.

M/s. JAL in response to the said affidavit filed by MoEF, filed a

counter affidavit contending that in terms of the notification dated

14th September, 2006 they applied for grant of Environmental

Clearance not for just revival of operation of the factory of UPPC, but

for its new Cement Plant on plot 3200 of Village Kota, District

Sonbhadra also. They sought site clearance as well as Environmental

Clearance for factory. It was granted by letter dated 29th September,

2008. The grant of Environmental Clearance was preceded by Terms

of Reference and detailed inquiry by expert agency culminating in

preparation of Environment Impact Assessment Report, Public

hearing undertaken in the area in question. It was thereafter

25

clearance was granted. The area includes the mining lease areas

which have been promised to be renewed and transferred in favour of

M/s. JAL. As Environmental Clearance was granted, there was no

requirement to take any clearance either from CEC or under the

provision of Forest Act. Similar exercise was undertaken in respect of

proposed new cement plant to be established on plot 3200 of village

Kota. After completion of the process as envisaged in the EIA

Notification, clearance was granted by the Ministry on 30th September,

2010. The said clearance also do not require to obtain any further

clearance from either CEC or from appropriate authority under the

provision of FC Act. As the proposed factory is within 10 Kms. radial

distance of Kaimur Wildlife Sanctuary, condition was imposed to

obtain clearance from National Board of Wildlife in accordance with

the orders passed by the Hon’ble Supreme Court in Goa Foundation

case. Pursuant to the order M/s. JAL approached to the State Wildlife

Board, which granted approval dated 24th November, 2010. The grant

of clearance to the said project is under consideration by the National

Board for Wildlife. In this background the Ministry had changed the

stand for unknown reason. The order dated 20th November, 1986 in

Banwasi Seva Ashram laid down special procedure to safeguard the

interest of those persons who were otherwise unable to seek redressal

from the courts of law. But such directions cannot override the

provisions of the FC Act. The observations therein do not apply to the

lands, which are no longer included in the notification under Section

4 of the Act, in view of the orders passed by the FSO and the

Additional District Judge. As far as M/s. JAL is concerned, the

26

mining leases were promised to be renewed and transferred in terms

of the details in para 4 of the MoI forming part of bid documents

circulated by the official liquidator acting under the orders of the

Hon’ble High Court of Allahabad, irrespective of the extent which

mining may have been undertaken by the UPCCL. The Government

cement factory was established in 1954 and these mining blocks have

been envisaged is to be inclusive. It is evident from the duly

approved mining plan. In fact the Government cement factory itself is

located in this area. The Government cement factory had carried out

mining activity uninterrupted from 1954 till the production was

stopped in 1999-2000 in the freehold, UPCCL established township,

administrative offices, township for employees, hospitals, schools,

stackers reclaimers etc. The figures of broken area did not take into

account the facilities which were otherwise established over the plots.

The order relied on by the Ministry is the only proceedings, where the

UPCCL have participated in the settlement of proceedings initiated by

the Forest Settlement Officer. There are sufficient reasons for non-

participation by UPCCL. The primary reason was closure, because of

the agitation of the workers. In fact the agitation took a violent turn

on 02nd June, 1991 when the police had to open fire causing the death

of nine labourers. In 1991-1992 agitation came to such a stage that

on several occasions police authorities had to open fire. In such a

situation UPCCL could not have participated in the survey undertaken

by the district officials. If such a survey was carried out, it cannot be

imagined that the factory and the mining areas and the other

27

constructions would not have been omitted so as to include them in

Section 4 notification.

The allegation of collusion was denied. The sale of assets of

UPCCL was undertaken by official liquidator acting under orders of

the Court. Neither the bid document nor the MoI indicated or

disclosed any forest land. State did not take steps to renew the

mining lease. The FSO originally reflected the claims of M/s. JAL. It

was on remand the claims were later upheld and they were confirmed

by the District Judge. The stone pillars in the area were placed

pursuant to the direction of the High Court dated 13th December,

2006.

It was under Section 9, M/s. JAL filed claims before the Forest

Settlement Officer, as no claim has been preferred earlier under

Section 6 to the knowledge of M/s. JAL and no notification under

Section 20 was issued, M/s. JAL is within the right to prefer the claim

before the FSO in terms of the order of the Hon’ble Supreme Court till

the final notification under Section 20 is issued and the land continue

to be under notified area and the Forest Settlement Officer is

competent to decide the application on merits. As the order against

the disputed land were passed earlier ex-parte without affording

opportunity to UPCCL, the principles of res judicata will not apply. In

fact the notification issued under Section 4, include the land, which

have been acquired by the State earlier for the Cement Factory.

Therefore M/s. JAL is entitled to take recourse to Section 9 and

matter was enquired subsequently and the lands were excluded by the

28

FSO. The lands excluded at the behest of M/s. JAL constituted only

8% of the total land excluded. Out of 38548.102 hectares notified

under Section 4, till the publishing of the notification under Section

20, 8774.532 hectares were excluded. The land excluded under the

behest of M/s. JAL is only 778.99 hectares. Though a draft

notification under Section 20 appears to have been drawn up in 1986,

the same was not notified and published in the financial gazette.

Actually survey and record operations could be undertaken only in

1991-1992. Thereafter matter also remained pending before the

Hon’ble Supreme Court. The State of U.P. thereafter issued directions

for the publication under Section 20, by communication dated 12th

September, 2008. The actual notification came to be published in

financial gazette on 25th November, 2008. The disputed lands were

not included in the said notification. The freehold land was not liable

to be included under Section 4 as they do not stand covered by any

category of land provided in Section 3 of the FC Act. The special

Public Prosecutor (Forest) was not authorized to represent the

department as indicated by the District Judge on 29th May, 2007. If

the Forest department thought it is necessary and appropriate, steps

should have been taken to obtain necessary clearances and approval.

The disputed lands do not stand included in the report that the State

Government prepared with respect to forest area pursuant to the

directions of the Hon’ble Supreme Court on 12th December, 1996.

Even the Survey of India map including land plan, photographs

extract of EIA report establish that the disputed lands do not answer

the description of forest. Although notification for setting up the

29

Kaimur Wildlife Sanctuary was issued on 10th August, 1982, no

survey of demarcation of the said sanctuary had been undertaken.

This fact was taken note of by Hon’ble High Court of Allahabad in

Kamal Kumar Pande Vs. State of U.P.. In any case with regard to the

area covered under the wildlife sanctuary M/s. JAL has to take proper

clearance required under law as incorporated in the Environment

Clearance. The order of Hon’ble Supreme Court dated 13th November,

2000 dealt with the issue of dereservation of forest which pre-suppose

existence of the reserved forest. As Section 20 notification has not

been issued, dereservation has no application. The order dated 12th

December, 1996 make it clear that the entries in revenue records

should be one, existing for long time. None of the tender documents

or documents prepared by the official liquidator, under the directions

of Hon’ble High Court of Allahabad given any indication of the

leasehold and freehold rights of UPCCL was affected by any

notification issued under Section 4 of the Forest Act. Instead the

tender document assert that none of the lands are forest lands. The

issue of lands in question, being affected by the notification under

Section 4 was raised for first time by the State of U.P. when they

expressed inability to renew and transfer the mining lease. The area

excluded at the behest of the M/s. JAL was pertains to only 778.99

hectare and not 1083.23 hectare. No part of the area 178.99 hectare

falls within the boundary of Kaimur Wildlife Sanctuary till

demarcation take place. It is not known on what basis the Secretary

(Forest) directed all construction activities on plot 3400 have

immediately stopped. The decision of U.P. not to challenge order

30

passed by the Hon’ble High Court of Allahabad dated 12th October,

2007 is based upon the legal opinion. That the decision was bonafide

taken in the larger public interest. While constituting reserve forest it

is open for the State Government to include not just forest land but

also waste land or any other land having proprietary right, in the

reserve forest. It is thus clear that mere including land under Section

4 does not if ipsofacto compel one to arrive to the conclusion that the

land is forest land. M/s. JAL from in October, 2006 till the filing IA

2939/2010 had spent Rs. 2100 Crores, towards the modernization

and refurbishing of plant and machinery of UPCCL to seek revival

operation.

M/s JAL filed IA No. 2939/2010 before the Hon’ble Supreme

Court praying for a direction to the State of U.P to renew and transfer

the mining leases as promised to the Applicant and detailed in the

MOI issued by the Official Liquidator, UP and Uttarakhand and to

declare the right of the Applicant to be granted renewal and transfer of

mining leases as promised in the Court sale confirmed in its favor,

without any fetters or encumbrances.

Cases of M/s JAL in their Application is that the State

Government issued Global Notices notifying offers for the purchase of

the assets of UPCCL, which also provided various reliefs and

concessions to the successful bidder, which inter alia include

exemption from payment of trade tax, exemption from payment of

royalty on minerals as well as renewal and transfer of various mining

leases detailed in part IV of the MOI. The Applicant and others

31

submitted the bid based on the promise of renewal and transfer of

various limestone leases present in the area in question, which had

been developed right from 1952 as ‘captive mines’ of the factory of

UPCCL. These limestone mines represented the only limestone deposit

available in the State of U.P. Post confirmation of the sale in favour of

the Applicant, they moved the State to renew and transfer various

mining leases as detailed in the MOI in respect of which Application

for renewal had already been submitted before the State Government

by UPCCL before commencing of the liquidation proceedings The

Applicant was surprised to learn later that Notification under Section

4 of the Forest Act include not only areas comprised in the promised

mining lease, but also free hold land of UPCCL as also the land on

which existed administrative, offices, hospitals, residential township,

crusher plants, rope ways etc. The Applicant approached the Forest

Settlement Officer for exclusion of the affected area from the

Notification issued under Section 4 of the Indian Forest Act. Pursuant

to the proceedings of the Forest Settlement Officer, the

Applications/Objections made by the Applicant came to be allowed

and the affected areas were excluded from the Notification issued

under Section 4 of the Forest Act. The Orders of the Forest Settlement

Officer were taken before the Additional District Judge concerned in

suo-moto Appeal as directed by the Hon’ble Supreme Court in

Banwasi Seva Ashram & others. These proceedings have since

attained finality having not been challenged by any party till date.

Applicant approached the Hon’ble Company Judge of the High Court,

who by Order dated 12.10.2007 directed the State Government to

32

renew and transfer the mining lease in favour of the Applicant as

promised. Pursuant to the directions, the State Government renewed

Dala mining lease for 370 hectares against the 751 hectares as

promised and 713 hectares of Ghurma Mines against 1266 hectares,

as promised in the tender documents. The mining leases so renewed

were those which were not included under Section 4 Notification and

also those areas which had earlier been included but later stood

excluded. The lands which were not excluded, the lease was neither

renewed earlier nor renewed or transferred to the Applicant till date.

About this time, CEC received some complaint based on which, it

issued Notice to the Chief Conservator of Forest to ensure that land

notified under Section 4, is not leased out to the applicant without

obtaining the approval of the Hon’ble Supreme Court. Meanwhile,

pursuant to the confirmation of the sale, possession of the unit and

assets of the company in liquidation were made over to M/s. JAL. Sale

certificates were also issued by the Official Liquidator in its favour.

The factory of the applicant commenced commercial production on

01.04.2008. M/s. JAL thereafter made further investment amounting

to approximately Rs. 2141.12 crores towards refurbishment of plant

and machinery, installation of new plant and machinery and other

works for restarting the plant, which had been lying closed right from

1998. Approximately 2010 officers and employees are working there.

The operations of the plant also provide indirect employment to

approximately 5000 persons, apart from making available indirect

employment opportunity to the residents of the entire region. The

factories of the company were situated in a backward region where

33

agriculture was never the main source of livelihood, due to the nature

of soil and topography. At the time when UPCCL shut down its

factories, it caused a loss of employment of 6000 workers. Rs. 459

crores deposited by M/s. JAL with the Official Liquidator has since

been disbursed amongst the workers and secured creditors. Out of the

amount deposited, Rs. 305.63 crores has been distributed amongst

the secured creditors, Rs. 116.34 crores had been distributed amongst

the workers, the balance was accounted towards liquidation expenses.

M/s. JAL had paid some of Rs. 17.25 crores towards Central Excise

and Service Tax dues. These are shown in a list. The comparative

chart of mineral reserve between the promised (MoI) and leased out

reserve. The mineral reserve as per MOI which was promised was

231.175 million tons which is comprised in an area of 3949.780

hectares. The area actually made over to M/s. JAL is only 2400.622.

The limestone reserve in the area leased to M/s. JAL is only 59.870

million tons. According to M/s. JAL, the District of Sonbhadra and

Mirzapur are the only places where limestone deposits were found in

the State of UP. It was to exploit the said deposit that in 1952 and

1954, a Government cement factory was commissioned by the State at

Churkh. The factory was established to exploit the limestone deposits

in areas now commonly known as the Ghurma mines. To establish a

second unit at Dala, the State issued Notifications under Section 4

and 6 of the Land Acquisition Act on 30.01.1964 and 22.02.1965

acquiring initially 1.67 acres. It was followed by another set of land

acquisition notifications on 20.02.1965 and 30.03.1965 acquiring

respectively 320.46 acres in village Kota. The cement factory at Dala

34

came to be commissioned in 1969 and 1971. The factory commenced

commercial production using limestone obtained from the area now

called Dala Limestone Mines. It also utilized marble which was mined

at Ningha Marble Mines. On 29.03.1972, UPCCL was incorporated

with the State Government as the sole shareholder. By order dated

31.03.1972, State of U.P transferred the assets of the existing cement

factories to vest in the UPCCL with effect from 01.04.1972. On or

about 25.10.1972, applications were made by the UPCCL for grant of

mining lease for areas falling in Dala limestone, Ningha Marbles Mines

and Ghurma Mines. The leases were granted on 24.10.1972,

21.10.1972 and 29.01.1977 respectively. Formal lease deeds were

executed in respect of 751 hectares of the Dala Limestone Mines for a

period of 20 years i.e. from 30.04.1976 to 30.04.1996. Similar lease

deed in respect of 1266 hectares of Ghurma Limestone Mines was

executed on 27.09.1978 for the period 27.09.1978 to 26.09.1998.

Mining lease deed for Ningha Marble Mines measuring 87 hectares

was executed on 12..03.1987 for the period 12.03.1987 to

11.03.1987. Consequent to the promulgation of abolition of UP

Zamindari Abolition and Land Reforms Act,1950, Zamindari in the

State came to be abolished but the abolition of Zamindari in different

areas of the State is to become effective from different dates as

notified. As far as the area in which the cement factory of UPCCL was

existing, the abolition of Zamindari came into effect on 30.06.1953.

The area falling south of Kalmur range, the entire forest area formed

part of the Kingdom of the then Vijaygarh State. When the Zamindari

was abolished, the entire Kingdom was handed over by the Revenue

35

Authorities of State of Uttar Pradesh, to the Forest Department of the

State. However, no land records in these areas were compiled or

properly maintained. Therefore, the land which was to vest in the

appropriate local bodies were never classified, categorized or recorded

in the Revenue records. The State did not inherit any revenue record

worthy of acceptance from the erstwhile Zamindari. The management

of these mines was based on the Government Notification dated

10.10.1953, which provided that forest of 50 acres or more which

were found to be contiguous to the Government forests were to be

handed over to the forest Department for management. The Forest

land which is the uncultivable area would be surplus of the need of

the Gaon Sabha would be taken over by the Forest Department. The

area in question thus, came to be vested in the Gaon Sabha in terms

of Section 117 of U.P Zamindari Abolition Act and Land Reforms Act,

1950 by Notification dated 18.06.1958. This Notification was later

repealed when a fresh notification under Section 117 of the

Notification dated 23.02.1965 was issued. In the absence of proper

documents and records of title maintained by the erstwhile Zamindari

as well as Revenue Department of the state, persons found to be in

possession asserted rights over the land and the area saw widespread

encroachments. No settlement operations were carried out in the

area. It was in this background of uncertainty to protect the areas

falling under the management of Forest Department that the first

notifications of Forest Act came to issued on 01.01.1967 and

29.09.1969. The first notification covered areas falling in the Ghurma

mines while the second notification covered areas falling in Ningha

36

Marble Mines. The Maheshwar Prasad Committee had gone into these

aspects and recorded that in forest areas residential land, agriculture

land and cultivable land were put under the control of the Forest

Department in several areas. Actual land of the tenant were also

placed under the control of the Forest Department and erroneously

notified under Section 4 of the Indian Forest Act, 1927. The

Committee therefore, recommended for fresh settlements operations to

be undertaken in the entire region. The Assistant Record Officer, Obra

on 23.01.1971 passed an order requiring recording of 256.148

hectares of land in the name of Govt. Cement Factory, Dala in the

relevant revenue records. But, this order was never translated into

actual entry in the revenue records. The second set notifications of

Indian Forest Act came to be issued on 30.04.1977 and 22.02.1978.

The said notifications taking certain areas falling in Dala Limestone

Mines as well as factory complex township, administrative building

and crusher unit of the cement factory which had been in existence

from 1969-1971. The third unit of UPCCL at Chunar came to be set

up and established, around 27.06.1981. By that time of the three

units of the Corporation were functioning and were carrying on

mining operations. On 20.11.1986, taking cognizance of the letter

petition, the hon’ble Supreme Court issued various directions in

Banvasi Ashram Case. Though pursuant to the direction issued by

the court and settlement operations have taken place and undertaken

by Settlement Officer and Additional District Judge had commenced

proceedings. M/s. JAL has neither been able to find any record of

proclamation issued under Section 4 of the Forest Act or record of

37

notice that may have been issued to the UPCCL which was the only

major industry in that region. The survey and settlement operations

were guided by various Govt. orders in terms of which the officers of

the revenue department were to carry out spot inspection and draw

up reports of persons found to be in possession of the land that may

have been notified under Section 4 of the Forest Act. No spot

inspection appeared to have been made as otherwise it would have

been found that the area covered under the notification included areas

over which the factories of the Corporation stood established and

engaged in the production of cement. On or about April, 1991, a joint

venture for taking over the UPCCL which was facing heavy loss was

approved by the state of UP. The Dalmia Industries Ltd. was chosen to

partner the Corporation and continue the operation. It led to

widespread unrest amongst the workers and litigation subsequently.

On 07.06.1991, the management declared lockout in the factory. The

state finding that the net worth of the Corporation had totally eroded

made a reference to the Board of Industries and Financial

Reconstruction (in short ‘BIFR’) on 10.07.1992 in accordance with the

provisions of the Sick Industry Companies (Special Provision) Act,

1985. In the course of the proceedings before the BIFR, the Board

declared the industrial a sick industry unit on 07.10.1992. The Board

ultimately recommended the winding of the Company by order dated

27.07.1997. On receipt of the said report, the High Court of Allahabad

registered miscellaneous company Application no. 04/1997. The

winding of the Company by the Board was intimated to the central

excise authority on 13.03.1998. By order dated 08.12.1999, UPCCL

38

was ordered to wind up by the High Court and on Official Liquidator

Officer was appointed. It was thereafter notices were published

inviting bids and M/s. JAL submitted the bid which was finally

accepted by the hon’ble High Court.

According to M/s. JAL, by carrying on mining at the time of

when notifications under Section 4 were issued the lands had lost all

characteristics of forest as judicially defined and interpreted. The

perusal of the topography sheet of survey of Indian map drawn up in

1967 establish the area in question did not have any forest area or

characteristics of forest. Prior to the commencement of the operations,

M/s. JAL had undertaken an environmental impact assessment study

as required and contemplated under the Govt. of India notification

dated 14.09.2006. The initial EIA Report prepared establishes that

land without shrubs comprised 71.2 per cent of the total study area.

The report records that no forest land, major vegetation or habitat was

found in the area. The study area did not have any endangered

endemic or migratory birds, wildlife, etc. It was pursuant to the

submission of the EIA Report, the Ministry of Environment and

Forest, Govt. of India, by order dated 29.09.2008 granted

environmental clearance to the said project. In fact, the area

comprises barren hills scarred by uninterrupted mining operation,

hillocks of reject minerals and no vegetation therein. According to the

Applicant, the prohibitions contained under the Forest Conservation

Act, 1980 are not attracted. It is contended that in the

recommendations CEC nowhere records that the land in question

satisfy the description of forest. The recommendations were based

39

solely upon inclusion of the land in question in the notifications

issued under Section 4 of the Forest Act. According to M/s. JAL mere

inclusion of certain land in the notification of Section 4, would not

invite the prohibition provided in the FC Act. The CEC clearly

misconstrued the provisions of the Forest Act read with the provisions

of the Forest Conservation Act,1980 as well as the orders of the

hon’ble Supreme Court. M/s. JAL therefore, contended that

recommendations of the CEC cannot be accepted. They would also

contend that the allegation of collusion with the State Govt. is

baseless and unsubstantiated. M/s. JAL are only being facilitated by

the State as they are was faced with the situation where even though

it had paid the entire sum of Rs. 459 crores, the promised mining

leases were not renewed or transferred. It is in the said circumstances

M/s. JAL was compelled to approach the hon’ble High Court for

necessary directions. It was in the course of seeking renewal and

transfer of mining leases, for the first time they were apprised that the

promised leases were affected by the notification issued under Section

4 of the Forest Act. They also furnished a chart showing the total area

affected by the initial notification under Section 4, the total area

calculated in the settlement proceedings and the area excluded at the

behest of M/s. JAL. While the total area of 8774.523 hectares were

excluded from the area covered under Section 4 notifications, the area

excluded at the behest of M/s. JAL is only 778.991 hectares which

works out to be roughly 8 per cent of the total area excluded in the

course of the settlement proceedings. It is therefore contended that

there was no collusion between the state and M/s. JAL as alleged.

40

They also contended that even though the order of the hon’ble

Supreme Court was made on 20.11.1986, actual settlement

proceedings took place before the FSO for the first time in 1991-1992.

Relying on some of the orders passed in the settlement proceedings,

they would contend that UPCCL was neither represented nor notices

were issued to it in the proceedings. About 1991-92, Corporation

itself was lying closed due to the agitation of the workers and was

finally declared lockout with effect from 07.06.1991. The Board of the

Corporation made a reference to BIFR on 10.07.1992. Therefore, it is

clear that at the relevant time, UPCCL was not functioning at all.

Despite issuance of Notification under Section 4, no notification under

Section 20 of the Act was ever issued in respect of the land in

question. The MOI issued by the State Government as well as Official

Liquidator carried mining plans duly approved by the Indian Bureau

of Mines, which stated that the forest areas comprised in the leased

area was nil. M/s. JAL were continuously pursuing the matter after

confirmation of sale, with the State Government for renewal and

transfer of the promised mining leases. It was only after the

confirmation of the sale and during the pendency of the proceedings of

the Company Court, the State disclosed the inability to renew the

mining leases on the ground that it would include areas, which was

included in the notification under Section 4 of the Forest Act. Since,

the UPCCL was neither put under the notice of the proceedings nor

record of any survey taken place in respect of the property, it is clearly

a case of no knowledge could be attributed of the existence of its

rights during the course of enquiry under section 7 of the Forest Act.

41

There was sufficient cause for the company not to prefer any claim.

The right to seek exclusion of the land from the initial notification of

section 4 stands eclipsed only upon the issuance of the final

Notification of the section 20 of the Forest Act. Though the FSO

rejected the application filed by M/s. JAL holding that the settlement

operation stood finalized as against them, that finding was set aside

by the District Judge and remanded the case back to the Forest

Settlement Officer who upheld the claim which was later approved by

the District Judge in the Statutory Appeal. Therefore, the

recommendation of the CEC has to be rejected as sought for.

Bali Ram, filed Writ Petition 130/2011 before the Hon’ble

Supreme Court for issuing an appropriate Writ or direction in the

nature of Mandamus to stay further construction of Super Cement

plant of M/s JAL in Kota reserved forest on Plot No.3260 as well as

carrying on other non forest activities on plot no. 3205, 3206 and

3211 till the matter is finally decided by the court in I.A. 2469 of 2009

in W.P No. 202/1995 and also to stop all non forest activities in areas

notified under section 4 of Indian Forest Act and to set aside the

orders passed by the Forest Settlement Officer for exclusion of

1083.21 hectares of the area notified under section 4 from the

reserved forest in favor of M/s JAL and also to set aside the

environmental clearance provided to M/s JAL for the Super Cement

plant and to direct the State of U.P to take punitive action against all

concerned officers who connived with M/s JAL and were responsible

for the violation of the Forest Conservation Act and the decision of the

Hon’ble Supreme Court.

42

The applicant claiming to be an environmental activist, residing

at Shamsherpur of District Chandauli, fighting for the protection of

the forest and restoration of the forest land from illegal occupants and

encroachers contended that the whole area in Kota forest, large scale

cement plant construction, road construction and other non-forest

activities are carried out in violation of the provisions of the Forest

Conservation Act and Environmental Protection Act by M/s JAL.

Reiterating the facts stated earlier, applicant would contend that

thought the High Court of Allahabad by order dated 17.10.2007

disposed the application filed by M/s JAL holding that objections of

the State Government for renewal of mining lease in respect of

1033.66 hectares, on the ground that it is covered by Notification

under section 4 of Indian Forest Act cannot be sustained, the State of

U.P did not challenge that order even though the Hon’ble Supreme

Court by order dated 08.02.1989 in Banwasi Seva Ashram Vs. State of

U.P directed that the lands which are subjected to the notification

issued under Section 4 of the Forest Act would also come within the

purview of section 2 of FC Act and it would be necessary for the

project proponent to obtain appropriate clearance under FC Act. As

per the guidelines clarifying the FC Act, 1980, published by the

Ministry of Environment and Forest in June, 2000, in part ‘C’ Chapter

I, 1.1 (i), lands which are notified under section 4 of the Forest Act

would also come under the purview of the FC Act. These guidelines

and clarifications were approved by the Hon’ble Supreme Court by

order dated 01.08.2003 in I.A No. 944 and 800 and directed that

diversion proposal of the Sate submitted under FC Act, the Central

43

Government to take appropriate decision after examining the same in

accordance with the Act, rules framed therein, guidelines and National

Forest Policy 1988. Earlier, the State of U.P placed office

memorandum dated 10.10.2006 issued by the industrial development

department where under the decision of the State Cabinet regarding

relaxation and concessions to be granted in favor of the proposal of

the asset of UPCCL were recorded. The said office memorandum was

dealt by the Hon’ble High Court in its order dated 10.10.2006,

interalia providing that for the leases falling in the forest area, renewal

is possible only after obtaining prior approval of the Central

Government and payment of applicable charges. Divisional Forest

Officer, Obra vide letter dated 483/Obra/ 15 mining dated 25.07.2010

had informed the regional office of MoEF, Lucknow that the

construction work is being carried on plot no. 32000 instead in plot

no. 3206, 3211 and 3212, which are accepted by the FSO and the

same was confirmed by the District Judge, Sonbhardra. The

Secretary Forest, Government of U.P notified under section 20 dated

25.11.2008, in spite of the directions of the CEC and the MoEF. Such

construction work is being carried out on the plots and being non

forest activity. The said area of village Kota was notified as reserved

forest under section 4 of Indian Forest Act by notifications dated

02.03.1973 and 22.02.1978. Forest Settlement Officer, Obra in forest

settlement case no. 3871/1991 on 16.04.1992 held that gata/plot

3200, 3206, 3211 and 3212 are reserved forest and submitted the

proposal for final notification under section 20 of the Forest Act as

that decision was confirmed by the Additional District Judge, Chopan

44

in appeal no. 4760/1992 dated 28.10.1993. As per the directions of

the Hon’ble Supreme Court in Banwasi Seva Ashram case (WPC

106/1/1981) the order passed by the Additional District Judge shall

be taken to be the order contemplated under the Forest Act. After the

purchase of the cement factory, M/s JAL filed case no. 181/354

before the Forest Settlement Officer who by order dated 19.09.2007

excluded 15 plots having an area of 210.056 hectares, said exclusion

is illegal. It is also not tenable in view of section 11 which provide the

power to acquire land of which road is claimed. It is community right

of way, right of pasture, right of forest produce or water course etc.

the Forest Department by letter 3792 dated 12.09.2008 addressed

PCCF, Government of U.P and DFO of Sonbhadra and Obra, forest to

submit the proposal for notification under section 20 within 2 days.

The Forest Department vide notification dated 25.11.2008 excluded

the land from the land notified under section 4 for which the Forest

Settlement Officer had earlier concluded the settlement proceedings in

1992 itself, to benefit the private party and to avoid applicability of the

FC Act. Revenue authorities of the District changed the status of

jungle recorded in the revenue records to non forest as seen in the

revenue records 1372 fasli year and 1410-1415 fasli year. The

applicant, contended that M/s JAL is not entitled to get 1083.23

hectares excluded which is being illegally handed over to M/s Jaypee

Associates by the State Government. Illegal constructions are

continuing, namely Jaypee Super Cement project K-6, power plant

and packing plant and road constructions on the area. By letter dated

17.02.2005, the Ministry of Environment and Forest directed that the

45

change in the legal status of the land recorded as jungle jhar in

revenue records, without prior approval of the Central Government is

illegal and violative of the FC Act. The concerned department should

be directed to immediately restore the legal status of such lands to

jungle jhar/forest land. The site was inspected by the Conservator of

Forest (Ministry of Environment and Forest) on 22.01.2009 and a

report was submitted to the CEC. It is contended that in view of the

directions of the Hon’ble Supreme Court once the proceedings before

the Forest Settlement Officer as well as the appeals before the

Additional District Judge were completed, subsequently on the

applications filed by the M/s JAL, at a very belated stage the decisions

which have already attained finality could not have been changed. It

therefore, contended that the reliefs sought fore is to be granted, till

the Hon’ble Supreme Court finally decides I.A No. 2469/2009 filed in

W.P of 202/1995.

M.A. No. 1163 of 2015 is an application filed by M/s. J.P.

Associates limited for permission to intervene. That application was

allowed and M/s. JAL was permitted to intervene.

The dispute relates to the lands covered by the mining leases

originally granted in favour of UPCCL and later sold in public auction

in the liquidation proceeding by Hon’ble High Court of Allahabad and

purchased by M/s. JAL. The CEC recommended that though the

Forest Settlement Officer passed orders for exclusion of 1083.231

hectares from the land notified under Section 4 of the Forest Act,

those orders are illegal and invalid and those excluded lands should

46

also be treated as reserved forest and any renewal or transfer of

mining lease in favour of M/s. JAL can be allowed by the State of U.P.

only after obtaining prior approval as provided under Section 2 of the

FC Act. It was without accepting the recommendations of the CEC,

the State of U.P. originally filed IA 2469/2015 before the Hon’ble

Supreme Court, seeking permission to renew the mining leases, in

order to comply with the Judgment of the Hon’ble High Court of

Allahabad dated 12th October, 2007 in the liquidation proceedings in

favour of M/s. JAL and praying to confirm the notification issued

under Section 20 excluding the lands covered by the orders of FSO.

But later the State of U.P. filed the additional affidavit, changing the

stand accepting the findings and recommendations of the CEC and

praying that the recommendations of the CEC be accepted and

thereby giving up the reliefs originally sought in IA 2469 of 2009. The

said affidavit was registered on IA 3877 of 2015. M/s. JAL on their

part filed IA 2939 of 2015 to reject the recommendations of CEC and

supporting IA 2469 of 2009 filed by the State of U.P. as practically IA

2469 of 2009 is for permission to uphold the claim of M/s. JAL.

While the interlocutory applications and the writ petition were

pending before the Hon’ble Supreme Court, by order dated 5th

October, 2015 the Hon’ble Supreme Court transferred them to the

National Green Tribunal as follows:-

“In so far as these matters are concerned, the

interlocutory applications related to these 4 matters will be

decided by the Principal Bench of National Green Tribunal

47

alone. Registry is directed to transfer the IAs in the

following 4 matters namely forest land involved in the

mining leases transferred to M/s. J.P. Cement Limited (2)

report of the CEC regarding Western Ghats (3) construction

of Hotel at Mcleodganj on forest land in violation of the

Forest (Conservation) Act, 1980 and (4) illegal felling of trees

and road construction in Wildlife Sanctuary in Karnataka”

The order makes it clear that all the contentions of the parties

are kept open to be agitated before the National Green Tribunal.

On receipt of the records IA 2469 of 2009, IA 3877 of 2015, IA

2782 of 2010, IA 2939 of 2010, IA 2940 of 2010 in WP 202 of 1995

were respectively numbered as M.A. No. 1166 of 2015, M.A. No. 1169

of 2015, M.A. No. 1163 of 2015, M.A. No. 1164 of 2015 and M.A. No.

1165 of 2015 in CWP 130 of 2010 numbered as Original Application

No. 494 of 2015.

(A) The facts

The State of U.P. by order dated 10th October, 1953 ordered

private forest and waste land lying at South of Kaimur range in the

Mirzapur district to be handed over to forest department for

management purpose. While preparing in the list of private forest and

the land which are to be managed by the forest department the Chief

Conservator of Forests was directed to follow the following guiding

principles:-

48

With reference to your letter No. 1932/35-12 dated September, 1953 I am directed to say that the Divisional Forest Officer, Dudhi and the Sub-Divisional Officer concerned should first of all make out list of private forests and lands which will be managed by the Forest Department and those which are given over to Gaon Samajs. In preparing the lists of private forests and the lands, which are to be managed by the Forest Department, the following guiding principles should be borne in mind-

“(i) In the case of private forests the principle to be observed should be that all private forests of 50 acres or more in area or small areas which are contiguous to Govt. forests or those which form compact block of 50 acres or more should be managed by the Forest Department.

(ii) In the case of waste lands the principle to be followed should be that the uncultivated area which is surplus to the needs of the Gaon Samajs should be taken over by the Forest Department provided that the uncultivated area remaining with the Gaon Samajs if not less than 50% of the total cultivated area of the total cultivated area of the village and secondly that the area to be excluded from vesting in Gaon Samajs should not be less than 100 acres.

2. The Collector, Mirzapur, is being requested to help the Divisional Forest Officer in compiling these lists.

3. I am to add that in the mean time the Collector, Mirzapur is being asked to hand over all private forests to the Forest Department for management, but it should be clearly borne in mind that the existing rights of the people in those villages, are not interfered with any way.”

The State of U.P. acquired 129.74 hectares (320.46 Acres) of land

by notification dated 20th February, 1965 and 0.67 hectares (1.67

Acres) for construction of the Dalla Cement Factory at Kota village.

The UPCCL was incorporated on 01st April, 1972 and thereafter

transferred all the assets owned by the Government cement factory to

UPCCL. Apart from the land acquired for cement factory, for the

purpose of mining leases were granted to the cement factory as well as

49

UPCCL by various lease deeds for different periods. Later 7.89 lakh

acres of land in Tehsil Dudhi and Robertganj, were notified under

Section 4 of the Forest Act. While so, a Writ Petition under Article 32

of the Constitution of India, based on a letter received from Banwasi

Seva Ashram operating in the district Mirzapur, was registered by the

Hon’ble Supreme Court under Article 32 of the Constitution of India.

The facts of that case reveals that State declared a part of the

jungle lands in the two Tehsils of Dudhi and Robertganj in the District

of Mirzapur as reserved forest, as provided under Section 20 of the

Forest Act and in regard to the other areas, notification under Section

4 of the Forest Act was made and proceedings for final declaration of

those areas also as reserved forest were undertaken. Some of the

villages were in existence for some time which also falls within the

prohibited area. It was found that admittedly there has been no

survey and settlement in those Tehsils and in the absence any definite

record it would be difficult to implement the directions of the court.

Therefore the court directed that survey and record operation in the

Tehsils had to be completed. Holding that forests are a much wanted

national asset and on account of the depletion thereof ecology has

been disturbed; climate has undergone major change and rain have

become scanty. It was found that these have long term adverse effects

on the national economy as also on the living process. It was held “At

the same time we cannot to lose sight of the facts that for industrial

growth as also for provision of improved living facilities, there is a

great demand in this country for energy such as electricity. In fact for

quite some time the entire country in general and specific parts

50

thereof, in proclear, have suffered tremendous set back in industrial

activity for want of energy”.

Liberty was also granted to the parties to move for direction as

and when necessary. Pursuant to the said directions, settlement

proceedings were initiated. Forest Settlement Officers and Additional

District Judges were appointed claim petitions were received and

settled by the FSO in various proceedings. Those orders were placed

before the designated Additional District Judges. They were heard

along with appeals if any filed.

It is the case of the State of U.P. that settlement proceedings as

directed by the Hon’ble Supreme Court in Banwasi Seva Ashram was

completed in respect of all villages except 12 villages by 1994. The

disputed lands are part of those lands which were settled by 1994.

The Hon’ble Supreme Court in Banwasi Seva Ashram case later

passed an order on 18th July, 1994, relied upon by the CEC and the

State of U.P. to contend that in view of the said Judgment dated 18th

July, 1994, neither FSO nor the Additional District Judges were

competent to entertain or decide any Application or claim in respect of

the remaining villages except the 12 villages on which the settlement

proceedings were not finished. The order dated 18th July, 1994 shows

that with the able assistance of the Senior Counsels the gigantic task

undertaken by the court was for successfully completed. The relevant

portion of the order reads “pursuant to these court orders dated 13th

May, 1994 only one Additional Judge is functioning. We direct that he

shall function till September 30, 1996 by which date he shall

51

conclude hearing of all the appeals and review petitions. We also see

no reason to continue the remaining unit of Kulnoor Survey Agency.

We direct the closure of the same w.e.f. 01st August, 1994.” It has

been recorded that by Justice Loomba in his 14th report stated that an

area of about 26947 acres in about 12 villages covered by notification

under Section has been in fact dealt with under Section 54 of U.P.

Land Revenue Act.

“Pursuant to this Court’s order dated May 13, 1994 only one Additional District Judge in functioning. We direct that he shall function till September 30, 1994 by which date he shall conclude the bearing of all the appeals and review petitions. We also see no reason to continue the remaining unit of Kulpoor Survey Agency. We direct the closure of the same with effect from August 1, 1994.

It has been stated by Justice Loomba in his 14th Report that an area of about 26947 acres in about 12 villages, covered by Notification under Section 4 of the Indian Forest Act, has in fact been dealt with under Section 54 of the U.P. Land Revenue Act. We direct the Revenue Secretary, Government of Uttar Pradesh, to set up special officers to deal with this area in terms of our order dated November, 20, 1986. We further direct the Revenue Secretary to ..plesent the decisions given by various Additional District Judge in various appeals and revels decided by the Learned Judge.

We close the proceedings of this case. We however, give liberty to the parties to approach this court as and when it becomes necessary to do so for obtaining necessary directions.”

In some of the proceedings before the Forest Settlement Officer,

the Junior Clerk appeared on behalf of UPCCL and a portion has been

excluded from the land covered under Section 4 of the notification.

That order was confirmed by the Additional District Judge and it has

become final. By 1992 the Cement Factory became a sick industry

and proceedings were initiated before the company court of Hon’ble

52

High Court of Allahabad. By order dated 08th September, 1999, on

the recommendation of BIFR the Company Judge passed an order to

liquidate UPCCL and appointed official liquidator for the said purpose.

For selling the assets of the Corporation through tender system a

committee was constituted by the order dated 14th February, 2002.

The committee was directed to invite tender/expression of interest by

publishing in newspapers. In response to the tender

document/expression of interest four companies including M/s. JAL

submitted proposals on 30th January, 2006. M/s. JAL was declared

successful bidder being the highest bid. The lands shown in the

tender document include the mining lease area of UPCCL and

erstwhile U.P. Cement Corporation namely 751 hectares of Dala Mines

(Kagarhat) at Kota, 1266 hectares of Ghurma Mines (Markundi)

mines, 87 hectares of Ningha Marble Mining lease of Obra (Panari)

being a total 2104 hectares and 643.433 hectares of Balua Limestone,

384 hectares Jalgul mine 670.575 of Bari mining making total of

1698.008 hectares. The order dated 11th October, 2006 passed by the

Company Judge in Miscellaneous Company 4 of 1997 shows that

Advocate General has placed on record Office Memorandum dated 10th

October, 2006 by which the decision of the State confirming the reliefs

and concessions have been recorded by the State Government. The

Office Memorandum dated 10th October, 2006 was issued under the

signature of the Principal Secretary, Industrial Development

Department, declares that the State Government has taken decision

with regard to reliefs for exemption of the working capital, waiver of

trade tax, the exemption for trade tax for 10 years, exemption for ten

53

years the royalty payable by the company (under liquidation) and the

renewal of limestone leases. The order reads “The Office

Memorandum also clarifies that wherever the dues are payable in

terms of the order of the Central Government under the Forest

Conservation Act, 1980, all the orders issued by the Hon’ble Supreme

Court, the requisite permissions and approvals shall be obtained after

payment of the required fees. Wherever the land is situated in a

sanctuary, permission for non-forest purposes shall be given after

seeking approval from the Supreme Court.

“The Managing Director of M/s. JAL placed on record draft for

Rs. 1,50,65,00,000/- deposited with the Official Liquidator. It was

ordered that the sale shall stand confirmed. On confirmation of sale

assets of the company, whatever and wherever, they shall stand

transferred to and vested in M/s. JAL free from all encumbrances,

charges or fetters. M/s. JAL then moved Civil Miscellaneous

Application 145925 of 2005 seeking directions of the State of U.P. to

forthwith renew and transfer in their favour the mining leases detailed

in MoI. By order dated 12th October, 2007, the High Court rejected the

case of the State Government that prior approval of the Central

Government under Section 2 of the FC Act is necessary to renew the

lease holding that the mining leases of the company will be renewed

by the State Government in favour of the company in liquidation and

thereafter transfer them in favour of M/s. JAL without further delay

and the entire formalities will have to be completed within a period of

six weeks and transferred to M/s. JAL. It is by that time the CEC on

54

getting a letter disclosing the violations, issued the directions to the

forest department as stated earlier.

Mr. Pinaki Misra, Learned Senior Counsel appearing for M/s.

JAL argued that the recommendation of the CEC cannot be accepted

as it was made under misconception of law. It was argued that the

objections that no land included in any notification issued under

Section 4 of Forest Act is liable to be excluded without the prior

approval of the Central Government and the and the circular dated

20th August, 2004 issued by the MoEF is illegal, as the statutory

provision in the Forest Act cannot be taken away or made nonest as

canvassed by the CEC. It was argued that there are only two

statutory restrictions under Section 2 of the FC Act which would be

relevant and they are that except with the prior approval of the

Central Government, no reserved forest shall cease to be revered and

no non-forest activity be carried out in a forest land or any part

thereof as provided under sub-section (ii). The Learned Senior

Counsel argued that the dictum of the decision dated 08th February,

1989 in Banwasi Seva Ashram; that the land which are subjected to

the notification under Section 4 of the Forest Act, would also come

within the purview of the section 2 of the FC Act and therefore it

would be necessary for NTPC to obtain appropriate clearance from the

appropriate authority does not mean that once a land is covered

under Section 4 notification and it was later excluded after enquiry as

provided under Section 6 of the FC Act, it would again come within

the ambit of Section 2 of the FC Act. The Learned Senior Counsel

argued that when there is no notification issued under Section 20 of

55

the FC Act, declaring the disputed land a reserved forest and when the

disputed lands stand excluded from the lands notified under Section 4

by the orders of the Forest Settlement Officer and were later confirmed

by the Additional District Judge, and those orders have become final,

CEC so not justified in giving recommendations still permission of the

Central Government is necessary as provided in Section 2 of the FC

Act. The Learned Senior Counsel argued that though the earlier

orders were passed declaring that the lands are included as reserve

forest and those orders were confirmed by the Additional District

Judge in the Suo-moto appeals, those orders were passed at a time

when UPCCL was a sick industry and there was nobody to look after

the affairs and management of the company. It was argued that the

said orders will not operate as res judicata in the subsequent

proceedings. Though the claim petition filed by M/s. JAL before the

Forest Settlement Officer was rejected, finding that because of the

earlier orders confirmed by the Additional District Judge, the FSO is

not competent to decide the question once again and dismissed the

claim petition, in appeal it was found that the said positions are not

legal and correct and as M/s. JAL was not a party in the earlier

proceedings and the earlier orders will not operate as res judicata and

remanded the matter back to the FSO and after remand the FSO

upheld the claim and those orders were confirmed in appeal and those

orders was not challenged by the State or the Forest Department and

therefore they stand finally excluded from Section 4 notification and

only for the remaining area, Section 20 notification was issued and

therefore the disputed lands are not forest land, reserved forest or

56

forest land as and therefore Section 2 of the FC Act will not apply and

hence the prior approval of the Central Government is not warranted.

The Learned Senior Counsel also submitted that out of the

disputed land of 1083.231 hectares as proceedings is pending before

the court regarding the area falling in Kaimur Wildlife Sanctuary

namely 253.176 hectares, M/s. JAL is not raising any claim in respect

of that extent in this proceedings and restrict the claim to the balance

of only 778.991 hectares. The Learned Senior Counsel relied on the

decision of the Hon’ble Supreme Court in A. Jithendernath Vs. Jubilee

Hills Co-op. House Building Society (2006) 10 SCC 96, Payappar Sree

Dharmasastha Temple Advisory Committee Vs. A.K. Joseph and

Others (2009) 14 SCC 628 and Hindustan Sugar Mills Ltd. Vs. State

of U.P. and Others (1994) 4 SCC 149. The Learned Senior Counsel

also argued that though a clerk of UPCCL, without authority had

appear in three cases, there was no appearance in the remaining

cases and in one matter on appearance the claim was up held by the

FSO and in appeal it was confirmed and that order has become final

by 1994. The Learned Senior Counsel also argued that though a time

limited was fixed in Banwasi Seva Ashram cases for preferring the

claim under Section 6 of the Forest Act even the FSO and the

Additional District Judges were appointed only later and proceedings

are even now continuing and therefore based on the subsequent

decision dated 18th July, 1994 that the proceedings has been closed

with liberty to the parties to approach the Hon’ble Supreme Court, it

cannot be said that FSO is not entitled to entertain the claim, after

1995. The arguments is that as provided under Section 9 of the

57

Forest Act, a claim can be made before the concerned authority before

the final notification under Section 20 declaring in the land as

reserved forest is published in the official gazette and as the

notification under Section 20 was not published, the FSO is

competent to entertain and decide the claim and the Additional

District Judges are also competent to dispose the appeal and therefore

on these grounds also it cannot be said that the M/s. JAL cannot get

the lease renewed without payment of NPV or sanctioned of the

Central Government. It was argued that there is no collusion and the

orders area all lawful. It was also argued the revenue records prior

that date of the original decisions of the FSOs do not show that the

disputed lands hence Section 2 of the FC Act is not attracted and are

forest lands and as those lands were excluded from the Section 4

notification by the various orders passed by FSOs and confirmed by

the Appellate Authority namely the Additional District Judges, and the

final notification issued under Section 20 do not include the disputed

lands, question of application of Section 2 of the FC Act does not

arise. It was argued that the M/s. JAL submitted the bid and then

paid the amount on confirmation of sale based on the solemn promise

in the tender documents that the State Government would renew and

transfer the mining leases originally granted to UPCCL in favour of

M/s. JAL and the State cannot take a different stand later. The

Learned Senior Counsel argued that it was the specific stand of the

State as against the recommendations of the CEC and before the

Hon’ble Supreme Court that the orders passed by the FSOs excluding

the disputed lands from the notification issued under Section 4 of the

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Forest Act, is legal and it was the State itself who approached the

Hon’ble Supreme Court by filing I.A. No. 2469 of 2010 seeking

permission to renew the leases and reject the recommendation of the

CEC and the State is not thereafter entitled to turn around at a later

stage and pray for enforcement of the recommendation of the CEC. It

was argued that as the MoEF and the Central Government were not

prepared to approve Forest Management Plan submitted by the State

Government and thereby the State is not able to get the money from

the Central Government, the State changed the stand and now

contends that the disputed lands are also the reserves forest. The

State has changed their stand because of the arm twisting by the

centre and therefore the said stand is to be rejected so also the

recommendation of the CEC. The Learned Senior Counsel argued that

M/s. JAL participated in the court monitored sale and submitted the

bid without knowing that any of the mining lease area falls within any

notification issued under Section 4 of the Forest Act and all the tender

documents show that no forest land is involved and they have

invested Crores for the project and interest of warrants that the

promised renewal of the leases is to be granted by the State.

The Learned Amicus Curie, Mr. A.D.N. Rao in support of the

recommendations of the CEC submitted that by the Judgment dated

12th December, 1996 the Hon’ble Supreme Court declared that the FC

Act was enacted with a view to check further deforestation which

ultimately results in ecological imbalance and therefore the provisions

made for conservation of forests matters connected therewith must

apply to all forests irrespective of the nature of ownership or

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classification thereof. The word ‘forest’ must be understood according

to the Dictionary meaning and the description covers all statutorily

recognised forests, whether designated as reserved protected or

otherwise for the purpose of Section 2(1) of the FC Act and 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

Government record irrespective of the ownership.

The Learned Senior Counsel also pointed out that the Hon’ble

Supreme Court in Banwasi Seva Ashram by order dated 08th

February, 1989, has held that the lands which are subject to the

notification under Section 4 of the Forest Act would also come within

the purview of Section 2 of the FC Act and it would therefore be

necessary for the NTPC to obtain proper clearance under the FC Act

from the appropriate authority. The argument is that when it is not

disputed, that the disputed lands are part of the lands covered under

Section notification 4 of the Forest Act, as declared by the Hon’ble

Supreme Court, the provisions of Section 2 of FC Act would apply and

therefore prior approval of the Central Government is mandatory.

It was pointed out that thereafter the Hon’ble Supreme Court on

13th November, 2000 in Centre for Environmental Law Vs. Union of

India and others (WPC 337/1995) held that pending further orders, no

dereservation of forests/sanctuaries/national parks shall be affected.

It was also pointed out that though an attempt was made to delete the

word ‘forest’ from the said order, Hon’ble Supreme Court by order

dated 09th February, 2004 held that there is no ground to allow the

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application and delete the ‘forest’ from the order dated 13th November,

2000.

The Learned Counsel also argued that when by 1995 the Forest

Settlement Officers pursuant to the Judgment in Banwasi Seva

Ashram case had passed orders in respect of all the 1083.231

hectares of the disputed lands and by confirmation of the orders by

the Additional District Judges in Appeal including Suo-moto Appeals

and even the notification under Section 20 of FC Act was sent to the

press for publication, though it was not published approvals provided

under Section 2 of FC Act for any non-forest activity including mining

is mandatory. It was also argued that once the said orders have

become final as provided in the Judgment in Banwasi Seva Ashram

case dated 20th November, 1986, at the instance of M/s. JAL, the

question could not have been reopened or the claim of M/s. JAL could

not have entertained and therefore, the recommendations of CEC is to

be accepted. Learned Amicus Curie pointed out that CEC did not

recommend that no mining lease, shall be granted but recommended

only that prior approval of the Central Government under Section 2 of

the FC Act and M/s. JAL is bound to pay the NPV and make other

payments before getting the approval.

The Learned Senior Counsel Mr. Harin P. Rawal appearing for

the State of U.P. argued that though M.A. No. 1166 of 2015 was

earlier filed before the Hon’ble Supreme Court contending that the

recommendations of the CEC cannot be accepted and in view of the

orders of FSOs and Additional District Judges in favour of M/s. JAL

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provisions of Section 2 of the Act, 1980 is not applicable, after the

reply of the MoEF was submitted before the Court realizing the

mistake the State filed another affidavit which is numbered as M.A.

No. 1169 of 2015 seeking acceptance of the recommendations of CEC

and thereby giving the plea raised earlier in M.A. No. 1166 of 2015.

The Learned Senior Counsel argued that the change in the stand was

not due to any political interference but in fact was the stand taken by

the Forest Department even initially. The Learned Senior Counsel

argued that the provisions in the FC Act, must apply to all forests as

explained by the Hon’ble Supreme Court by order dated 12th

December, 1996 and the Government of India in furtherance to the

implementation of the FC Act issued a memorandum dated 26th

March, 1992 wherein certain clarification relating to the FC Act were

issued. It was clarified that the term “forest land” mentioned in

Section 2 of the FC Act refers to the reserved forest, protected forest or

any area recorded as forest in the Government records and all

proposals for diversification of such area for any non-forest purpose,

even if the area is privately owned, would require prior approval of the

Central Government under the FC Act. It was also clarified that

whether the Learned Senior Counsel argued that the orders passed by

the FSOs later to exclude 1083.231 hectares of land notified under

Section 4 of the Forest Act from reserved forest should be set aside

and all those areas should be included in the reserved forest and for

the renewal/transfer of mining leases in favour of M/s. JAL could only

be after obtaining approval of the Central Government and in respect

of the area falling in Kaimur Wildlife Sanctuary, the renewal/transfer

62

could be allowed only with the permission of the Hon’ble Supreme

Court and the National Board for Wildlife. It was argued that a

detailed procedure for the settlement of rights in respect of the areas

notified under Section 4 of the Forest Act was extrapolated by the

Hon’ble Supreme Court and settlement of rights of the disputed lands

had been carried out by the FSOs and suo-moto appeals came to be

decided by the Additional District Judges and settlement proceedings

in village Mukaribari was completed by 1986. The Hon’ble Supreme

Court reviewed the progress of the settlement and by order dated 18th

July, 1994 recording that fact closed the case and therefore in law,

the FSO could not have entertained the claims prepared by M/s. JAL

and the orders passed by the FSO and Additional District Judge after

the order dated 18th July, 1984 are inherit jurisdiction and are bad in

law.

It is also argued that the Forest Settlement Officer and the

Additional District Judge has excluded 256.148 hectares falling within

the Kaimur Wildlife Sanctuary which could not have been done and

that itself shows the non-application of mind by the FSO and District

Judge.

The Learned Senior Counsel appearing for the Applicant in

Original Application No. 494 of 2015 also supported the stand taken

by the State of U.P. and also sought the same directions as sought for

by the CEC and the State of U.P.

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The learned counsel appearing for the MoEF argued in support of

the recommendations of the CEC and satisfying the circular issued

clarifying the stand on dereervation of the Reserved Forest, falling in

the area notified under Section 4 of the Forest Act.

The questions to be settled are the affect of the declaration

issued under Section 4 of the Forest Act, when no notification under

Section 20 is published and whether Section 2 of the FC Act would

apply in such cases and also the effect of the orders passed by the

Forest Settlement Officer and confirmed by the Additional District

Judge as directed in Banwasi Seva Ashram cases by 1994, in view of

the completion of the settlement proceedings in all the villages except

12 villages and the liberty granted to the parties to approach the

Hon’ble Supreme Court and the later orders passed by the FSO and

confirmed by the District Judge.

Before considering the questions, it is necessary to appreciate

the background, the objects and scope of the Forest Act. The

statement of the objections and reasons as given by the law committee

is as follows:-

“The general law relating to forest in British India is contained in the Indian Forest Act, 1878, and its amending Acts. The present Bill brings the law together within the scope of one enactment. The Bill is a straight forward consolidating Bill but the original Act having been passed before the General Clauses Act of 1897 (X of 1897), it has been possible to shorten the language of the Bill by taking advantage of that Act. The ambiguous languages of the second paragraph of Section 42 of Act VII of 1878 has been altered in Clause 42(2) so as to bring it into conformity with what appears to have been the original intention of the law. The only other point which calls for further notice is the extent clause. The original Act extended to the

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Province of Assam, but by Regulation VII of 1891 the Indian Forest Act, 1878 was repealed as far as it relates to Assam. The Bill accordingly omits Assam from the extent clause”

The first chapter deals with the short title and extent of the Act

and interpretation clauses. The second chapter deals with the law

relating to reserves forest. The word “reserved” has not been defined

in the Act. Section 3 deals with the powers to reserve forest.

“3. Power to reserve forests – The State Government may constitute any forest land or waste-land which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government is entitled, a reserved forest in the manner hereinafter provided.

The State of U.P. by amendment of Act XXIII of 1965, amended

the Section w.e.f. 23rd November, 1965 adding “or any other land not

being comprised in any holding or grove or any village abadi which is

the proprietary of the Government”. An explanation was also added

on the expression “holding” shall have the meaning assigned to it in

the U.P. Tenancy Act, 1939 and the expressions of the “village of the

Abadi” shall have the meaning assigned to it in the U.P. Village Abadi

Act, 1947. Therefore the classes of the lands included in Section 3 of

the Forest Act, are (1) forest land which is the property of the

Government or over which Government has proprietary right (2) waste

land which is property of the Government or over which the

Government has proprietary right. In the State of U.P. any other land

which is the property of the Government or over which local

government has proprietary right except the land comprised in any

holding, grove or in any village abadi could also be constituted as

reserved forest. Section 4 deals with the notification by the State

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Government. Under the section whenever it has been decided to

constitute any land, a reserved forest, the State Government shall

issue a notification in the official gazette declaring that it has been

decided to constitute such land a reserved forest specifying as nearly

as possible the situation and the limits of such land and appointing

an officer called the Forest Settlement Officer, to inquire into and

determine the existence, nature and extent of any rights alleged to

exist in favour any person in or over any land comprised within such

limits or in or over any forest produce and to deal with the same as

provided in chapter-II. Though Section 4 provide for declaring any

other land, a reserved forest as provided under Section 3, such a land

should be either a forest land or waste land which is the property of

the Government or over which Government has proprietary right. In

the State of U.P. after 23rd November, 1965, such land could also be

any other land not being, in the State of U.P. which is not the

company land comprised in any holding or grove or in any village

abadi provided it is the property of the Government over which the

Government has a proprietary right.

Section 5 deals with the bar of accrual of forest rights. The

Section reads

“5. Bar of accrual of forest rights. – After the issue of a notification under Section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government of some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with

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such rules as may be made by the State Government in this behalf.”

Section 6 provides proclamation by Forest Settlement Officer.

Under the section, when a notification has been issued under Section

4, the Forest Settlement Officer shall publish in the local vernacular in

every town and village in the neighbourhood or land comprised

therein proclamation specifying the situation and the limits of the

proposed forest, explaining the consequences which will ensue on the

reservation of such forest and fixing the period of not less than three

months from the date of such proclamation and requiring every

person claiming any right mentioned in Section 4 or 5 within such

period either to present to the Forest Settlement Officer a written

notice specifying or to appear before him and state the nature of such

right and the amount of compensation if any claimed in respect

thereof. Section 7 deals with the inquiry by the Forest Settlement

Officer on a claim preferred under Section 6. Section 8 deals with the

powers of the Forest Settlement Officer. Section 9 deals with

extension of rights. Section 9 reads:

“9. Extinction of Rights. – Rights in respect on which no claim has been preferred under Section 6, and of the existence of which no knowledge has been acquired by inquiry under Section 7, shall be extinguished, unless, before the notification under Section 20 is published, the person claiming them satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under Section 6.”

Therefore under Section 9, till a notification under Section 20 is

published, any person who has not preferred a claim under Section 6

is granted a right to prefer a claim by satisfying sufficient cause for

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not preferring such claim within the period fixed under Section 6.

Section 12 deals with order on the claims of pasture to or forest

produce. Section 13 deals with the record to be made by Forest

Settlement Officer while passing such orders under Section 12.

Section 14 provide that If he Forest Settlement Officer admits in whole

or in part any claim under Section 12, he shall also record the extent

to which the claim is so admitted, during which such pasture is

permitted, the quantity of timber and other forest

From the order passed under Section 11, 12 or 13. Section 17

provides for appeal and Section 18 provides the procedure for the

appeal and the order. Section 20 deals with notification declaring the

forest reserve. The Sections reads:-

“20. Notification declaring forest reserved. – (1) When the following event have occurred, namely:

(a) The period fixed under Section 6 for referring claims has elapsed, and all claims, if any made under that section or Section 9 have been disposed of by the Forest Settlement Officer;

(b) If any such claims have been made, the period limited by Section 17 for appealing from the order passed on such claims has elapsed and all appeals (if any) presented within such period have been disposed of by the Appellate Officer or Court; and

(c) All lands (if any) to be included in the proposed forest, which the Forest Settlement Officer has, under Section 11, elected to acquire under the land Acquisition Act, 1894 (1 of 1894), have become vested I the government under Section 16 of that Act.

The State Government shall publish a notification in the official Gazette specifying definitely, according to boundary marks elected or otherwise, the limits of the forest which is to be reserved, and declaring in same to be reserved from a date fixed by the notification.

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(2) From the date so fixed such forest shall be deemed to be reserved forest.”

Chapter IV deals with protected forests under sub-section (1), of

Section 29 the State Government by notification published in the

official gazette declare the provisions of Chapter 4 applicable to any

forest land or waste land which is not included in the reserved forest,

but which is the property of the Government or over which the

Government has proprietary right or to the whole or any part of the

forest produce of which Government is entitled. Sub section 2

provides that forest land and waste land comprised in any such

notification shall be called a protected forest. It is provided under

sub-Section 3 that no such notification shall be made unless the

nature and extend of the right of the Government and of private

person in or over the forest land or waste land comprised therein have

been enquired and recorded at a survey or settlement or into and in

such other miner as the State Government think sufficient and every

such record shall be presumed to be correct until the contrary is

proved.

When section 3 empowers the State Government to constitute

any forest land or waste land which is the property of the Government

or over which the Government has proprietary rights, Section 29

enables the State Government to declare the provisions of Chapter IV

applicable to any forest land or waste land which is not included in a

reserved forest, but which is the property of the Government or over

which the Government has proprietary right. Therefore it is clear that

the State Government has all the powers to constitute any forest land

69

or waste land which belongs to the State a reserved forest or to

declare such land as a protected forest by a notification under section

4 or Section 29 of the Forest Act. Once a notification under Section 4

is issued, as provided in Section 5, no right can be acquired in or over

the land comprised in such notification except by succession or under

a grant or contract in writing entered into by or on behalf of the

Government or some person in whom such right was vested when the

notification was issued. Once a notification declaring that it has

decided to constitute such land a reserved forest, after completing the

procedure provided under Section 6 to 17 a final notification has to be

issued under Section 20 declaring to be reserved from a date to be

fixed in the notification by publishing notification in the official

gazette. From the date so fixed only such land would be a reserved

forest.

When the Forest Act was enacted in 1927, conservation of the

forest was not all a live issue. The Britain was ruling the country and

was exploiting the nation including the forest. The primary object of

the Indian Forest Act was to consolidate the laws relating to forest, the

transit of the forest produce and the duty leviable on timber and other

forest produce. The purpose was to exploit the forest and its produce

along with some effort to preserve them to enable the exploitation.

After independence, when the extent of forest cover available in the

country was being reduced drastically, necessity was felt for

preservation and conservation of the forest. The Government of India

declared its National Forest Policy in 1952. It lays down that forest

should occupy 33% of the land surface as against then existing 23

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percent. Consequent to the growth of population, spread of economic

development and consequential demand for more timber as raw

material and fuel and also more space, excession exploitation of forest

was the order of the day. Therefore notwithstanding the National

Forest Policy, the forest cover started further dwindling. The National

Commission on Agriculture in 1976 noticed the inadequate

implementation of the National Forest Policy and proposed

amendments including provision for prior approval of the Central

Government before taking steps for dereservation or diversion of forest

lands to non-forest use. It was to meet this alarming situation the

President Promulgated the Forest (Conservation) ordinance of 1980

and thereafter the Forest Conservation Act was enacted in 1980. The

Statement of Objects and Reasons show ‘deforestation causes

ecological imbalance and leads to environmental degradation.

Deforestation have been taking place on a large scale in the country

and it has caused widespread concern’. Section 2 of the FC Act

provides restriction on de-reservation of forest or use of forest land for

non-forest purpose. The section reads:

Restriction on the de-reservation of forests or use 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-

(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;

(ii). That any forest land or any portion thereof may be used for any non-forest purpose;

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(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 any other organization not owned, managed or controlled by Government;

(iv). [That any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation].

[Explanation- For the purposes of this section “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for-

(a). The cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants;

(b). Any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes].

Section 2 A was later incorporated by Act 19 of 2010

providing appeal to the Tribunal against any order or decision of

the State Government or other authorities made under Section 2

on or after the commencement of the National Green Tribunal

Act, 2010. Section 3 provides for constitution of Advisory

Committee and Section 3 A, provides Penalty for Contravention of

the provisions of the Act. Section 3 B provides offences by

authorities and Government departments. Section 4 provides the

power to make rules.

As is clear from section 2, prior approval from the Central

Government is necessary for any order directing that any

reserved forest or any portion thereof shall ceased to be reserved

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or that any forest land or any portion thereof may be used for any

non-forest purpose or 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 any other

organization not owned, managed or controlled by Government or

that any portion thereof may be cleared of trees which have

grown naturally in that land or portion, for the purpose of using it

for reafforestation. Thus, clause (i) of Section 2 deals with

reserved forest, providing that for any order that a reserved forest

within the meaning of the expression ‘reserved forest’ shall cease

to be reserved, prior approval of the Central Government is

necessary. The said clause deals with the reserved forest, as

provided under the Forest Act. Though Forest Act does not define

the reserved forest, reserved forest is the one as provided under

the Forest Act, which would be as declared by the final

Notification under section 20 pursuant to a notification under

section 4 and finalization of the enquiry on a claim filed under

section 6 or 9 and the order passed under section 11 or 12 and

finalized under section 18 of the Act. Clause (ii) of Section 2

deals with any forest land or any portion thereof that may be

used for any non-forest purpose. Clause (iii) and (iv) also deals

with any forest land or portion thereof. Forest land is also not

defined in the FC Act. What is the meaning of the word forest

land contemplated under Section 2 of the FC Act is settled by the

Hon’ble Supreme Court by judgement dated 12.12.1996 in T.N

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Godavarman Thirumulkpad Vs. Union of India, [(1997) 2 SCC 267].

The Hon’ble Supreme Court held:

“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 ford 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 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 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 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 Sate 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 nay Sate Government which has failed to appreciate the correct position in law so far, will forthwith correct, its stance and to take the necessary remedial measures without any further delay.

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Therefore, the forest land occurring in Section 2 of the FC Act

shall include not only the forest as understood in the dictionary sense,

but also any area recorded as forest in the Government record,

irrespective of its ownership.

When Section 2 of the FC Act is so understood, it is easy to

resolve the dispute regarding the non notifying of reserve forest under

section 20 of the Forest Act after promulgation of a notification under

Section 4. As stated earlier, the Notification contemplated under

section 4 of the Forest Act is by the State Government declaring that it

has decided to constitute such land a reserved forest specifying the

situations and limits of such land as nearly as possible and

appointing an officer called the ‘Forest Settlement Officer’ to enquire

into and determine the existence, nature and extent of any rights

alleged to exist in favour of any person, in or over any land comprised

within such limits or in or over any forest produce. Section 3 of the

Forest Act enables the State to constitute any forest land or waste

land which is the property of the Government or over which

Government has a proprietary right as reserved forest. Therefore, by

virtue of the power vested under Section 3 of the Forest Act, a State

Government is entitled to constitute any forest land or waste land

which is its property or over which it has a proprietary right or to the

whole or in part of the forest produce of which it is entitled. Forest

land is also not defined in the Forest Act. Once a Notification is

issued under Section 4, as provided under Section 6, the Forest

Settlement Officer shall publish a proclamation specifying the

situation and limits of the proposed forest, and explaining the

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consequences that will ensure on the reservation of such forest, fixing

a period of not less than 3 months from the date of such

proclamation, requiring every person claiming any right mentioned in

Section 4 or 5 on or over the land, to prefer a claim before him. After

enquiry, the Forest Settlement Officer has to pass an order under

Section 11 or 12 or 14 or 15 and the aggrieved person is entitled to file

an appeal as provided under section 17. Once the appeal is decided

as provided under section 18, a final Notification as provided under

Section 20 shall be published in the official gazette specifying

definitely, according to boundary marks erected or otherwise, the

limits of the forest which is to be reserved and declaring the same to

be reserved from A date fixed by the Notification Sub-Section 2 of

Section 20 provides that from the date so fixed, such forest shall be

deemed a reserved forest. Therefore, in a case where a Notification is

issued under Section 4 of Forest Act declaring that it has decided to

constitute such land a reserve forest and a claim is preferred as

provided under section 6 and that claim on enquiry is upheld and the

order has become final, either by non filing of an appeal or after

dismissal of the appeal under Section 18 and hence the land is

excluded from the Notification issued under Section 4, the legal

position would be that the said land will not form part of the reserved

forest. The resultant position would be that the land would be

relegated to the pre section 4 Notification stage. When under Section

3 of the Forest Act, the State Government is empowered to constitute

any forest land or waste land which is the property of the Government

or over which the Government has propriety right on such exclusion

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of the land from the Section 4 Notification, the status of the land

would be reverted back to the status of the land prior to the

Notification issued under Section 4. If that be so, if it was a forest

land, it would continue to be a forest land. If it was a waste land, it

would continue to be a waste land. If Sections 3, 4 and 20 of the

Forest Act are so understood, based on such non-exclusion of the

land, it is not possible to hold that Section 2 of the FC Act is not

applicable at all to such land. FC Act is applicable not only to the

reserved forest, but also to the protected forest to the forest

irrespective of the ownership as understood in the dictionary sense If

also applied to any area recorded as forest in the Government record,

irrespective of the ownership. Therefore, M/s JAL cannot contend

that, as their claim was subsequently upheld by the Forest Settlement

Officer and the orders was confirmed by the Appellate Authority

namely Additional District Judge, such land would not be a forest

land as provided under Section 2 of the FC act. Irrespective of the

order passed in the application filed under Section 6 or 9, if the said

land otherwise come within the purview of Section 2 of the FC Act, the

orders passed by the Forest Settlement Officer or the Additional

District Judge (the validity and the effect of the said orders would be

considered a little later) will make no difference. The Hon’ble Supreme

Court in the Judgement dated 08.02.1999 in Banwasi Seva Ashram

Vs. State of U.P & Ors considered the effect of the Notification issued

under Section 4 of the Act. As in the present case, the land involved

in that case was also part of the land covered by the Banwasi Seva

Ashram Judgement dated 20.11.1986. The facts of the case reveal

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that the land sought to be acquired for the super power thermal power

project of the NTPC the land was 153 acres for ash Pipe Line and 1643

acres for ash dyko located in villages Khamakya, Mithanai, Parobatwo,

Jheeltole, Dodha and Jharaha. The requirement of NTPC was later

increased to 2495 acres out of which 1322 acres are under

occupancy, 185 acres constitute Gaon Sabha lands and 987 acres are

lease which have been notified as reserved forest under section 20 of

the Forest Act and by earlier order treated outside the purview of the

Writ Petition. It was clarified that as regards, the said land, it can

only be by satisfying the requirements of the FC Act. With regard to

the land which are part of the land covered by the Notification issued

under Section 4 of the Forest Act but for which no final Notification

under Section 20 was issued, their lordships held

‘We are of the view that the lands which are subjected to the

Notification under Section 4 of the Forest Act would also come within

the purview of Section 2 of the Forest Conservation Act, 1980 and it

would therefore be necessary for the NTPC to obtain appropriate

clearance under that Act from the appropriate authority.

The arguments of the Ld. Sr. Counsel appearing for M/s JAL is

that, this finding of the Hon’ble Supreme Court is applicable only to

such lands, for which there has been a Notification issued under

Section 4 and the final Notification under Section 20 is yet to be

issued and no claim is preferred under Section 6 or the one preferred

has been finally settled. It is argued that with regard to the land

declared as reserved forest, as declared in that Judgement, Section 2

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applies and for the land, for which final Notification is yet to be issued

and the cloud of Section 4 Notification still hangs, prior approval of

the Central Government is provided under Section 2 is necessary.

The argument is that if the claim preferred under section 6 has been

finally settled and the area claimed is excluded and for the remaining

area alone Notification under Section 20 is issued, such excluded land

will not come within the purview of Section 2 of the FC Act. True, as

far as the land covered under the Notification under Section 20 as

such land is deemed a reserved forest, Section 2 of the FC Act would

definitely apply the Ld. Sr. Counsel appearing for M/s JAL would also

not dispute the fact that as regards the land which are not excluded

from Section 4 notification, Section 2 of FC Act applied. But we

cannot accept the argument of the Learned Senior Counsel that the

land which stands excluded by upholding the claim would then

automatically goes out of the ambit of Section 2 of the FC Act. As

stated earlier, if such land was a waste land, or a forest land within

the ambit of the forest land as declared by the Hon’ble Supreme Court

by Judgement dated 12.12.1986, Section 2 of the FC Act would

definitely apply.

(B) The directions in Banwasi Seva Ashram case dated 20th

November, 1986 and the decisions taken there under by the

State.

Though the State Government declared a part of the Jungle land

in two Tehsils Dudhi and Robertganj in the District of Mirzapur as

reserved forest, as protected under Section 20 of the Forest Act, with

79

regard to the remaining area notification under Section 4 of the Forest

Act was made and proceedings for final declaration were undertaken

while so based on a letter addressed to the Hon’ble Supreme Court

proceedings were initiated under Article 32 of the Constitution of

India. Finding that admittedly there have been no survey and

settlement of these Tehsils and in the absence of any definite record to

safeguard it would be difficult to implement the directions of the

court, it was directed that survey and record operation be completed.

But later, on behalf of the State Government it was represented that

completion of such operation within a short span of time would be

difficult. The Hon’ble Supreme Court by the Judgment dated 20th

November, 1986 held that the lands which have already been declared

as reserved forest under Section 20 of the Forest Act would not form

part of the Writ Petition and for the remaining lands notified under

Section 4, even were no claim has been filed within the specified time

in the notification as required under sub-section ‘C’ of the Section 6,

such claim shall be allowed to be filed as indicated in the Judgment.

The Forest Settlement Officers of the State Government were directed

to raise demarcating pillars identifying the land covered by the

notification under Section 4, in the locality to clearly identify the

property subjected to the notification and it shall be widely published

and sufficient number of inquiry booths would be set up within the

notified area, so as to enable the people of the area likely to be affected

by the notification, to get the information as to whether their land are

affected by the notification and whether any claim needs to be filed.

That exercise was directed to be completed within six weeks from 01st

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December, 1986. Directions were also issued to appoint adequate

number of record officers by 31st December, 1986 and the Allahabad

High Court was requested to make services of 5 experienced Senior

Additional District Judges by 15th December, 1986 so that they could

be posted and one of each has to be located at Dudhi, Mohirpur, Kirbil

of Dudhi Tehsil and Robertganj and Tilbudwa of Robertganj Tehsil. It

was further directed that after the Forest Settlement Office has done

the needful under the provision of the Act finding with the requisite

papers shall be placed before the Additional District Judge of the area,

even though no appeal is filed and the same shall be scrutinized as if

an appeal has been taken against order of the Authority and order of

the Additional District Judge, passed therein shall be taken to be the

order contemplated under the Act. It was then directed.

“(3) When the Appellate Authority finds that the claim is admissible, the State Government shall (and it is agreed before us) honour the said decision and proceed to implement the same. Status quo in regard to possession in respect of lands covered by the notification under Section 4 shall continue as at present until the determination by the appellate authority and no notification under Section 20 of the Act shall be made in regard to these lands until such appellate decision has been made.”

Liberty was granted to the parties to move for directions as and

when necessary. Pursuant to the Judgment the Forest Settlement

Officers and the Additional District Judges were appointed and they

have settled the claims.

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The Hon’ble Supreme Court was monitoring the progress of the

settlement proceedings pursuant to the judgement dated 20th

November, 1986 and were giving directions from time to time. On 18th

July, 1994 the Hon’ble Supreme Court passed the following order :-

“This Court has been monitoring these proceedings as a result of the Judgement dated November 20, 1986 and the various orders passed from time to time. We are glad that with the able assistance of late Mr. Ramamurti, Sr. Advocate, Mr. Rajiv Dhavan, Sr. Adv. Mr. Krlamamurti, Advocate and other learned counsel, we have successfully completed the gigantic task undertaken by this Court. We place on record our thanks and special appreciation for Justic D.L. Loomba (Retd.) who has rendered valuable help to this Court in completing the task.

Pursuant to this Court’s order dated May 13, 1994 only one Additional District Judge is functioning. We direct that he shall function till September 30, 1994 by which date he shall conclude the hearing of all the appeals and review petitions. We also see no reason to continue the remaining unit of Kulnoor Survey Agency. We direct the closure of the same with effect from August 1, 1994.

It has been stated by Justice Loomba in his 14th Report that an area of about 26947 acres in about 12 villages, covered by Notification under Section 4 of the Indian Forest Act, has in fact been dealt with under Section 54 of the U.P. Land Revenue Act. We direct the Revenue Secretary, Government of Uttar Pradesh, to set up special officer to deal with this area in terms of our order dated November 20, 1986. We further direct the Revenue Secretary to impliement the decisions given by various Additional District Judges in various appeals and reviews decided by the Learned Judges.

We close the proceedings of the Case. However, give liberty to the parties to approach this Court as and when it becomes necessary to do so for obtaining necessary directions.”

It is not disputed that the lands involved in this case are not

included within the 12 villages where the settlement proceedings were

yet to be completed as stated in the said order. Instead the said lands

form part of the area where settlement proceedings were reported to

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be completed. The directions in the order to close the proceeding of

the case and granting liberty to the parties to approach the court, as

and when becomes necessary to do so for obtaining necessary

directions is to be appreciated in that background. The directions in

the judgement dated 20th November, 1986 are also relevant at this

juncture. Their Lordships categorically directed that even if no appeal

is filed as against the orders of the Forest Settlement Officer, the

Forest Settlement Officer has to place the findings with the requisite

papers before the Additional District Judge of the area and the same

shall be scrutinized as if an appeal has been taken against the order

of the F S O and the order of the Additional District Judge passed

therein shall be taken to be an order contemplated under that Act. It

was the direction that “when the Appellate Authority finds that the

claim is admissible, the State Government shall (and it is agreed

before us) honour the said decision and proceed to implement the

same. It is therefore absolutely clear that the order passed by the

Additional District Judge, if not reviewed, shall be treated as final and

the State Government had unambiguously admitted to honour the

same and implement it. Therefore, once the proceedings has become

final by the order of the Appellate Authority, as a natural corollary the

State was expected to proceed further if the claim is rejected, to notify

the area as a reserved forest as provided under Section 20 of the

Forest Act.

(C) The orders passed by the Forest Settlement Officer and the

Additional District Judges and their effect on the validity of

the subsequent orders passed by the Forest Settlement

83

Officer and confirmed by the Additional District Judges in

respect of the same lands later, involved in the case.

The fact that pursuant to the directions of the Hon’ble Supreme

Court in Banwasi Seva Ashram case dated 20th November 1986, due

publication of the Section 4 notification was effected, information was

furnished to the interested persons making aware of the notification,

the areas covered under the notification and their right to file claim

before the Forest Settlement Officer and claim petitions were

entertained by the Forest Settlement Officers and orders were passed

which were subjected to appeal and the appeals were also disposed,

are not disputed. The case of M/s. JAL is not that there was no

proper publication of the notification under Section 4 or the affected

persons were not aware of the factum of the notification or the

necessity to prefer a claim or that the UPCCL was not aware of their

right, if any. The only case is that as the UPCCL was then a sick

industry proper action could not have been taken and therefore, there

was no valid legal settlement of the rights. It is also admitted by all

concerned that in respect of the entire disputed land of

1033.231hectors, the settlement proceedings were finalized and

appeals were also disposed of are also not indispute. It is also

admitted that in some matters the UPCCL had appeared and

contested, though only a junior clerk had appeared before the Forest

Settlement Officer. It is also admitted that in some proceedings,

orders were passed by the Forest Settlement Officer directing

exclusion of the area claimed by UPCCL falling within the area covered

under the notification issued under Section 4 of the Forest Act and

84

the Additional District Judge also confirmed those orders. It is also

true that in the majority of the cases UPCCL did not participate in the

proceedings. But, whether a party has participated or not, the value

of the order passed by the Forest Settlement Officer and the Additional

District Judge would be the same in respect of the land. The

settlement proceedings in respect of the lands which the UPCCL

claimed rights either as acquired lands or lands having mining lease

hold rights, when orders were passed by the Forest Settlement Officer

and confirmed or modified or set aside by the Additional District

Judges, the said orders would become final as held in the order dated

20th November, 1986. When this fact is appreciated in the light of the

later order dated 18th July 1994 it is clear that when that order has

become final, if any person is aggrieved by the same, the remedy is to

approach the Hon’ble Supreme Court seeking necessary directions as

liberty was granted by the order dated 20th November, 1986 as well as

by order dated 18th July 1994. Even if a party was not represented

before the Forest Settlement Officer or the Additional District Judge

and he is aggrieved by the order passed against him, the remedy is to

approach the Forest Settlement Officer to review the order, if no

appeal was taken up or approach the Additional District Judge to

review the decision, if the order of the Forest Settlement Officer has

already been finalized in the Appeal. What M/s. JAL has done

subsequent to their purchase of the rights of UPCCL was different.

It was on 10th July, 1992 State Government made a reference to

BIFR under Section 15(1) of the sick industrial companies (Special

Provisions Act, 1985) in relation to UPSCCL. On 07th October, 1992

85

UPCCL was declared a sick industrial undertaking by BIFR. Still on

31st May, 1995, UPCCL had filed an application to renew the mining

lease of Dalla mines. On 09th September, 1996 a similar application

for renew of the mining lease of Ningha Mines was filed. It was on 08th

December, 1999 the Hon’ble High Court of Allahabad ordered winding

up of UPCCL. On 08th August, 2005 the official liquidator issued

notice inviting expression of interest for sale of cement plants and

assets of M/s. UPCCL. M/s. JAL submitted the bid thereafter and on

11th/12thOctober, 2006 the sale in favour of M/s. JAL was confirmed.

Till then M/s. JAL has nothing to do with UPCCL. Even though the

Learned Senior Counsel vehemently argued that M/s. JAL is not the

successor in interest of UPCCL, as they bid in the auction conducted

by the Official Liquidator monitored by the Hon’ble High Court of

Allahabad, pursuant to the tender inviting expression of interest, and

it was the High Court which confirmed the same, we have no

hesitation to hold that the right which was put up for sale pursuant to

the directions of the Hon’ble High Court in the liquidation proceedings

and purchased by M/s. JAL is the rights which was available with the

M/s. JAL. No better right or any right in excess of the right which

was available with UPCCL could be claimed by M/s. JAL. Though it

was argued that the MOI and the details furnished in the tender

documents do not show that any forest land was involved and if M/s.

JAL was aware that any land or assets belonging to M/s. JAL put up

for sale were forest lands, they would not have submitted the bids and

would not have purchased the same and therefore, in view of the

tender of documents, the lands are to be taken as not included in any

86

forest area, as otherwise it would be prejudicial to M/s. JAL. That

plea cannot be accepted, though the submission appears attractive. If

the lands which were reported to be available with UPCCL and were

put up for sale as the properties of UPCCL, irrespective the fact

whether it was published in the tender documents or not, if the said

lands are part of the forest land, the provisions of the Forest Act

would definitely apply. Even if M/s. JAL suffered any loss on account

of the omission of such material facts, whether intentionally concealed

or accidently omitted to be shown, the remedy of M/s. JAL is different.

We do not intent to dwell upon the same in this proceedings as it is

neither relevant nor necessary.

If a land over which “A” has any right or interest and it falls

within the land notified under Section 4 of the Forest Act as reserved,

as provided under Section 6 of the Forest Act, he is entitled to put

forth his claim before the Forest Settlement Officer as provided

therein. If he prefers such a claim and an order has been passed

rejecting his claim and later “B” purchases the rights of “A” over the

said land, the remedy of “B” is only to challenge the order passed

earlier and not to prefer a separate claim under Section 6 of the Act..

Even if “A” did not file a claim and “B” purchases the rights of “A”, he

can file a claim under Section 6 if it is within time or can prefer a

claim as provided under Section 9, explaining sufficient cause as

provided therein for not preferring the claim within the stipulated

time, provided no final notification under Section 20 of the Forest Act

has been issued till then. The original notifications under Section 4 in

respect of the disputed land were issued much earlier to the date of

87

the first judgement in Banwasi Seva Ashram case. Considering the

facts of the case and finding that there was no demarcation of the

areas covered under the notification, and consequent to that persons

who would be prejudicially affected by the notification were not aware

of the consequences of the notification and therefore could not prefer

the claim under Section 6 of the Forest Act, the Hon’ble Supreme

Court directed demarcation of the land covered by the notification

publish of the same in vernacular language and to make aware the

affected parties their right to prefer the claim as provided under

Section 6 and granted opportunity to file claims within three months

from the date of finalization of demarcation and publication of the

same, directing that such claims shall be treated as claims preferred

within the time provided under Section 6 of the Forest Act. As the

direction was to finalize the settlement proceedings within a time

frame and being aware that there may be cases were such claims may

not have properly considered, contested and decided, the Forest

Settlement Officers were directed to place the said findings along with

the records before the Additional District Judge deputed by that

Judgement and directed the Additional District Judges to consider

them as appeals against the orders of the Forest Settlement Officer.

When any such order passed by the Forest Settlement Officer was

confirmed by the Additional District Judge it was declared to be final.

Hence it would be binding not only on the persons claiming right over

the land on the date when the order was passed, the order would be

binding on the land itself as it was specifically declared that such

order passed by the Additional District Judge shall be treated as final

88

and Government shall implement the same, which was in fact

undertaken by State before the Hon’ble Supreme Court. If the legal

position is so understood, if in respect of the land claimed by “A” an

order has been passed by the Forest Settlement Officer and confirmed

by the Additional District Judges, that order would be binding not

only on “A” or his assignees or successors, but on the land itself. If

so, later when later “B” purchases the rights of “A”, “B” cannot file a

claim under Section 6 ignoring the order passed earlier, either by

contending that “A” was ignorant or due to some disability he could

not have preferred a claim within the time. His remedy is to challenge

the order binding on “A” as well as the land obtained by “B” from “A”.

Even though any person has a right to prefer a claim, as provided

under Section 9, if a claim under Section 6 could not have been

preferred within the stipulated time on satisfying the conditions

provided therein, “B” cannot seek the remedy available under Section

9 of the Forest Act so long as the previous order passed subsists,

which is binding on the land as well as “A”. This position will not

change for the reason that “B” purchased the property not on a

private sale or that it was a court sale or that the true facts were not

disclosed at the time of the sale. The consequences of the sale would

be the same as against the property and the rights prefer a claim as

provided under section 6 of the Forest Act.. This exactly is the position

herein. The Forest Settlement Officer had passed orders in respect of

the entire area involved in the notification under Section 4 of the

Forest Actexcept those in the 12 villages much earlier to the date of

purchase of the rights of the UPCCL by M/s. JAL. Therefore, what

89

was put up for sale in the liquidation proceedings and purchased by

M/s. JAL by tendering the bid are the properties of UPCCL carrying

the binding orders passed by the Forest Settlement Officers and the

Additional District Judges. The question whether M/s. JAL was

aware of the orders then, makes no difference on the validity or

binding nature of those orders. Even if the case of M/s. JAL is that

because the UPCCL at that time was a sick industry and a junior

clerk had participated only in some of the proceedings before the

Forest Settlement Officer or the Additional District Judges and

therefore those orders were not passed after proper consideration of

the facts and the law, their remedy as the successor in interest of

UPCCL was to challenge that order before the appropriate Authority

and not to prefer a separate claim before the Forest Settlement Officer.

As stated earlier even if M/s. JAL had a right under Section 9 of the

Forest Act to prefer a claim after satisfying the conditions provided

therein, when there exist valid and binding orders in respect of the

said lands, passed by the Forest Settlement Officer and Additional

District Judges, pursuant to the judgement of the Hon’ble Supreme

Court in Banwasi Seva Ashram case, M/s. JAL has no legal right to

prefer such claim ignoring the previous orders. Neither the Forest

Settlement Officers nor the Additional District Judges were competent

to pass fresh orders contrary to the binding previous orders holding

that the previous orders will not be binding on M/s. JAL. M/S JAL

otherwise should have opted the remedy of approaching the Honorable

supreme Court availing the liberty reserved in the judgment dated 12th

December, 1986 or 18th July 1994.

90

Though Learned Senior Counsel Mr. Pinaki Misra relied on the

decisions in Jitender Nath Vs. Jublee Hills Building Society and

Another.((2006) 10 SCC 96), Payappar Sree Dharmashastha Temple

Advisory Committee Vs. A.K. Joseph and Ors. ((2009) 14 SCC 628)

and State of Tamil Nadu and Ors. Vs. K. Shyamsunder & Ors. ((2011

8 SCC 737) and ((1999) 4 SCC 149), in the light of the view we had

taken earlier, the said decisions are not very relevant. What was

considered and decided in Dharmashashtra Case (Supra) was that in

the earlier suit, which was held to be binding and therefore operate as

res judicata by the Hon’ble High Court, the Board though was a

necessary party was not arrayed as a party and the said decree was

obtained only against the State. Therefore the said decree at the most

would be binding only against the State and not against the Board

and hence the said judgement would not operate as res judicata for

the later suit. In Jitender Nath (Supra) it was held that the award was

a nullity and therefore the principles of res judicata will not operate.

It was also held that an order which was passed by the Authority

without jurisdiction need not be set aside being a nullity, in the eye of

the law it never existed. The earlier decision in Balavant N Viswamitra

Vs. Yadav Sadashiv Mule ((2004) 8 SCC 706) was relied upon. The

orders passed by the Forest Settlement Officer or the Additional

District Judge cannot be said to be a nullity. They are valid and

binding orders, not only on the parties to the said lis, but also on the

lands involved. Therefore, when those orders were subsisting, the

Forest Settlement Officer or the Additional District Judge could not

have entertained another independent claim petition by the successor

91

in interest of UPCCL and exclude the same from the purview of the

notification issued under Section 4 of the Forest Act. By order dated

20th November 1986the Hon’ble Supreme Court has already directed

that the order passed by the Additional District Judge in the appeal

shall be taken to be the order contemplated under the Forest Act and

the State Government shall honour and implement the decision.

Once the claim stands rejected, the final notification under Section 20

should have been issued without any delay, including the land

covered in the claim which was rejected and excluding those claims

which were upheld. In any case, even exercising the powers available

under Section 9 of the Forest Act, the Forest Settlement Officer could

not have entertained or upheld the claim. The fact that the orders

passed by the Additional District Judges confirming the order of the

Forest Settlement Officers later holding the previous orders passed

against UPCCL do not operate as res judicata, excluding the lands

from the area covered under notification issued under Section 4 of the

Forest Act, were not challenged and therefore are binding on the State

as argued by the Learned Senior Counsel appearing for M/s. JAL,

cannot be accepted. The subsequent orders were passed years after

the earlier orders have become final and much after the said fact was

reported to the Hon’ble Supreme Court, as recorded in the order dated

18th July, 1994. We hold that those orders in favour of M/s. JAL,

excluding the lands from the land notified under Section 4 are bad in

law and are not valid or binding orders. When binding previous valid

orders holding that those lands cannot be excluded from the

notification issued under Section 4 of the Forest Act legally subsist

92

and are in force, a contradictory order excluding those lands from the

purview of the notification issued under Section 4 of the Forest Act

cannot be valid or binding even though the state did not challenge the

orders of the Appellate Authority. Hence those orders are to be ignored

as not valid or binding ignored as void orders.

The Learned Senior Counsel appearing for the M/s. JAL argued

that even though the total area covered under the said orders

excluding lands from the purview of Section 4 at the behest of M/s.

JAL constitute only 8% of the total area excluded by the orders of the

FSO and Additional District Judges and neither the State Government

nor the CEC had taken any objection and in fact the State has granted

mining leases in respect of such lands without approval of the Central

Government and M/s. JAL was singled out for political reasons. The

stand taken by the State of U.P. in respect of such excluded lands

from the area covered under the notification under Section 4 of the

Forest Act, is that such lands were excluded by the orders of the

Forest Settlement Officers and Additional District Judges before July

1994 as reported and recorded in the order dated 18th July, 1994.

The fact that the lands involved in this proceedings constituted only a

small portion of the area excluded by various orders of the FSO and

Additional District Judges from the lands covered by the notification

issued under Section 4 of the Forest Act is also not disputed. The

stand taken by the CEC is that the only matter brought to the notice

of CEC was in respect of the lands claimed by M/s. JAL and the other

details were not furnished. The stand taken by the Learned Senior

Counsel appearing for the State of U.P. is that though the State has

93

originally taken a stand against the recommendations of the CEC and

in fact filed M.A. 1166 of 2016 (I.A. 2469 of 2010) to reject the

recommendations and to permit issuing notification under Section 20

of the Forest Act in respect of the balance area after the exclusion of

the area by the orders of the Forest Settlement Officers and Additional

District Judges, after being aware of the stand taken by the MoEF, on

reappraisal of the whole facts,in the larger perspective took a final

view and ordered enquiry on the circumstances as to the entertaining

of the claims preferred after the earlier orders passed by the

Additional District Judges were finalized, and decided finally to

change its stand accepting the recommendations of the CEC. When

the arguments were concluded, the Learned Senior Counsel sought

permission to make available records relating to the said enquiry and

decisions taken. Pursuant to that submission, the State of U.P. filed

an additional Affidavit of Mr. Sujoy Banerjee, the Conservator of

Forest In-charge of Court Case Division, Forest Department, Uttar

Pradesh and produced a communication addressed to the Chief

Conservator of Forest by the Special Secretary dated 22nd April, 2016.

The letter reads as under:-

“Please take reference of your letter No. Ko.Ke.2539/C.O.(A.C.) dated 20.04.2016 wherein it has been prayed to modify the notification No. 4951/14-2-2008-20(16)/2008 dated 25.11.2008 issued under Section 20 of the Act by which the land admeasuring 778.991 Hect. Was separated by declaring the same as non-forest land while it was notified as forest land under Section 4 of the Act.

2. In this regard, I have been directed to say that the said forest land admeasuring 778.991 hectare is also included in Government notification No. 4951/14-2-2008-20(16)/2008 dated 25.11.2008 in which regard the proceedings of forest

94

land settlement was already completed on or before 18.07.1994. Therefore, the aforesaid notification dated 25.11.2008 by which the forest land admeasuring 778.991 hectare. Was declared as non-forest land, the same to the said extent is not in accordance to law, as upto which limit the proceedings concerning to forest land settlement was already completed on or before 18.07.1994.

Therefore, after considering the issue with regard to forest land which was declared as non-forest land, it has been decided to modify the aforementioned Government notification No. 4951/14-2-2008-20(16)/2008 dated 25.11.2008 as follows:

“In compliance of orders passed by the Hon’ble High Court in Petition No. 1061/1982 in the matter of Vanvaasi Seva Ashram Versus State of Uttar Pradesh, the proceedings of forest land settlement were completed in village Kota, Panaari, Padrach and Maarkundi of Sonbhadra District, and the government notification issued in the year 1986 under Section 20 with regard to village Makribaari of Sonbhadra District was not published, hence, in view of above settlement proceedings, and in the light of recommendations dated 10.08.2009 of Central Empowered Committee of Hon’ble High Court, in continuation of revised settlement conducted in the year 2007 and 2008, by using the powers provided under Section 21 of General Clauses Act the notification dated 25.11.2008 issued under Section 20 of the Act may be modified to the extent by complying the legal procedure”.

Therefore, in view of above, you are requested to please ensure to initiate the proceedings”

Along with the affidavit O.M. No. 946A/14-2-2016-405(96)/96

dated 22nd April, 2016 constituting an enquiry committee consisting of

Principal Secretary, Forest and Geology Department as Chairman and

Principal Secretary Industrial Development Department as Organizing

Secretary/Member and Principal Secretary, Revenue Department and

Principal Secretary, Geology and Mining Department as members to

conduct inquiry in respect of the forest land which have been included

in the auction proceedings of properties of UPCCL and in the matter in

95

which forest land was declared as non-forest land. The State has also

produced various orders passed by the Forest Settlement Officers and

the Additional District Judges which have become final by July, 1994

in respect of the disputed lands.

M/S JAL filed a reply to the said affidavit and documents stating

that the attempt is to over reach the court at the belated stage and it

is only a farce and the orders of the FSOs and Additional District

Judges show that the settlement proceedings were not completed in

1994 as contented by the State and in fact it continued even in 2006

and even now proceedings are pending and in any case there cannot

be a reserved forest without a notification published in the official

gazette as provided under section 20 of the Forest Act and therefore

the additional documents produced cannot be relied on at all.

We do not consider it necessary to go in detail on the inquiry

being conducted or the action intended to be taken as they are

irrelevant and unnecessary for our purpose in resolving the disputes

involved in this case. If M/S JAL is aggrieved by the actions or orders

they are at liberty to challenge them before the appropriate authority

in accordance with law. But we cannot ignore the fact that effective

action is not taken in respect of the parts of the lands involved in the

notification issued under Section 4 of the Forest Act, when allegations

are made that State is even granting mining leases in respect of the

forest land covered under the notification issued under Section 4 of

the Forest Act, without the prior approval of the central government

much less challenge the exclusion of those lands from the purview of

96

the notification, as they are doing as against M/S JAL. The affidavit

referred to earlier filed for the State reporting the intention to issue

further notification in compliance of the orders in Banwasi Seva

Ashram case, in respect of villages Kota, Panari, Padrach and

Markundi of Sonbhadra District prior to 1985,to modify the earlier

notification dated 25th November, 2008, does not disclose any steps in

respect of the remaining lands excluded from the notification issued

under Section 4 of the Forest Act. The intention is only to act in

respect of the lands claimed by M/s. JAL and were excluded by the

orders of Forest Settlement Officer and the Additional District Judge.

In such circumstances we see it necessary to issue directions to the

State of U.P. to conduct a proper inquiry in respect of the entire lands

covered under the notification issued under Section 4 of the Forest Act

and coming within the purview of section 2 of the FC Act. The state

shall not grant any mining lease or renew a mining lease or permit

any non-forest activity in any portion of the land covered under the

notification issued under section 4 of the Forest Act, without the prior

approval of the Central Government as provided under Section 2 of

the Forest (Conservation) Act.

The fact that private forest and waste land lying South of Kaimur

in the Mirzapur District, were declared as forest land by the State of

U.P. in 1953 was not disputed and in fact it is the very basis of the

decision in Banwasi Seva Ashram case. The revenue records show

that the lands are either waste land or jungle land. Later subsequent

to the settlement proceedings the entire lands involved in this case are

shown as forest land, is not in disputed. But the case of M/s. JAL is

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that the change of land use pursuant to the decisions of the Forest

Settlement Officers and Additional District Judges at a time when

UPCCL was a sick industry and therefore based on such entry it

cannot be held that the lands are forest lands. It was also pointed out

that subsequent to the later orders of the Forest Settlement Officer

and the Additional District Judges, the land use in the revenue record

were also changed. We find that even in the counter affidavit filed by

M.S JAL it was specifically admitted that earlier the entire land

covered by the notification were jungle or cliff or mountain. If so it

would satisfy the forest land as explained in the decision in Banavasi

seva samaj case. In view of the fact that the lands covered by the

notification issued under Section 4 of the Forest Act would also be

treated as forest land as provided under Section 2 of the Forest

(Conservation) Act, requiring prior approval of the Central

Government, we do not find it necessary to go into the question

further, except holding that the disputed lands which form part of the

area notified under Section 4 of the Forest Act would attract the

provisions of Section 2 of the Forest (Conservation) Act, requiring the

prior approval of the Central Government.

Though the Learned Senior Counsel relying on the decision of

the Hon’ble Supreme Court in B.S. Sandhu and Ors. Vs. Govt. of India

& Ors. (AIR 2014 SC 3409) argued that the definition of forest land as

understood in the decision dated 12th December, 1996 in Godavarman

Thirumulakpad (Supra) was explained and for the sole reason that the

land is shown as forest in the forest records, it cannot be said that

Section 2 would be attracted. It was a case registered as PIL by the

98

Hon’ble High Court Suo-moto based on a news item published in the

Hindustan Times that Forest Hill Golf and Country Club is being

developed in village Karoran in blatant violation of environment and

forest laws as well as the orders passed by the State of Punjab. The

land was shown as forest area in the Annual Administration Report of

the Forest Department. It was also found that the land was included

in the land notified under the Punjab Land Preservation Act, 1900

(PLP). Their Lordships held:

“15. It will be clear from the language of Section 3 of the PLP Act, 1900 extracted above that for the better preservation and protection of any local area, situated within or adjacent to Shivalik Mountain Range which is liable to be affected deboisement of forests in that range or by the action of “cho”, such Government may by notification make a direction accordingly. The expression “local area” has not been defined in the PLP Act, 1900 and may include not only ‘forest land’ but also other land. In Section 4 of the PLP Act, 1900 extracted above, the local Government was empowered by general or special order, temporarily or permanently to regulate, restrict or prohibit various activities mentioned in Clauses (1), (b), (c), (d), (e), (f) and (g) thereof. A reading of these clauses would show that activities such as cultivation, pasturing of sheep and goats and erection of buildings by the inhabitants of towns and villages situated within the limits of the area notified under Section 3 can be regulated, restricted or prohibited by a general or special order of the local Government. All these activities are not normally carried on in forests. Similarly, under Section 5 of the PLP Act, 1900, the local Government was empowered by special order, temporarily or permanently to regulate, restrict or prohibit the cultivating of any land or to admit, heard, pasture or retain cattle generally other than sheep and goats. These activities are also not normally carried on in forest. In our view, therefore, land which is notified Under Section 3 of the PLP Act, 1900 and regulated by order of the local Government Under Section 4 and 5 of the PLP Act, 1900 may or may not be ‘forest land’. Therefore, the conclusion of the High Court in the impugned order that the entire land of village Karoran, District Ropar, which has been notified Under Section 3 of the PLP Act, 1900 and is regulated by prohibitory directions notified Under Section 4 and 5 thereof is ‘forest land’ is not at all correct in law. The basis for inclusion of the entire area in village Karoran, District Ropar, in the list of forest areas in the State of Punjab pursuant to the order dated 12.12.1996 of this Court in

99

the case of T.N. Godavarman Thirumulkpad V. Union of India and Ors. (supra) is legally not correct. Similarly, the conclusion of the High Court in the impugned order that the entire land in village Karoran, District Ropar, having been notified Under Section 3 of the PLP Act, 1900 and being under the regulatory regime of Sections 4 and 5 of the said Act is ‘forest land’ is also legally not correct.”

After noting the relevant facts, how to understand the word

“forest land” is explained in the judgement dated12th December,

1996. It was held that it would show that the Forest Act was enacted

with a view to check further deforestation and was applied to all forest

area, irrespective of the nature of ownership or classification thereof

and FC Act puts a restriction on further deforestation of the forest

land and would apply to any land which at the time of enactment of

the FC Act 1980,irrespective of the classification or ownership. It was

also held that the relevant fact is whether the said land was forest

land as on 25th October, 1980, the date on which the FC Act came

into force. It was found on facts that the records of the forest

department in which the land was shown to be under the forest

department because of the fact that the land was closed under the

PLP Act. Several decades before the enactment of the FC Act by

recording the blanket finding that all the land in village Karoran was

forest land for the purpose of Section 2 of the Forest (Conservation)

Act, the Hon’ble High Court has affected the legal rights of several

villagers, Agriculturist, Farmers, Shop owners and inhabitance of the

village who were carrying on respective occupations on their land,

even before the enactment of FC Act. The findings of the Hon’ble High

Court that the entire land in Village Karoran is forest land for the

purpose of Section 2 of FC Act was set aside and the matter was

100

remanded for fresh consideration. That decision does not change the

view expressed in the order dated 12th December, 1996 and reiterated

in various subsequent decisions would clarify that the factual

question is whether on the commencement of the Forest Act on 25th

November, 1990, the land is a forest land. Though the Learned

Counsel appearing for M/s. JAL would argue that the Cement Factory

of UPCCL was established and were operating and the mining license

were granted to UPCCL, much prior to 1980 and the UPCCL was

mining the limestone much earlier to1980 and the said land cannot be

termed a forest land and therefore Section 2 of the Forest

(Conservation) Act is not attracted and the prior approval of the

Central Government is not necessary, cannot be accepted. Even if the

land was granted on mining lease to a party and thereafter a

notification is issued under Section 4 of the Forest Act and the mining

lease area form a part of the land thus notified under Section 4, it

cannot be said that, Section 2 of the FC Act is not attracted or the

prior approval of the Central Government is not required. The legal

position is already settled.

The question of renewal of mining leases in Gujarat came for

consideration before the Hon’ble Supreme Court in Ambica Quarry

Works Vs. State of Gujarat ((1987) 1 SCC 213). In that case the

appellant have been granted a quarry lease for the miner mineral

black trap in the State of Gujarat for a period of 10 years on November

8, 1971. When the term of above was to expire the appellant applied

for renewal of lease. The forest department refused to grant consent

on the ground that the land fell under the reserved forest area and

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hence section 2 of the FC Act applied to the land. The contention of

the appellant was that by the order granting lease for the purpose of

quarrying, the lands have been dereserved from the reserved area and

therefore the FC Act has no application. Their Lordships held:

“15. The rules dealt with a situation prior to the coming into operation of 1980 Act. ‘1980 Act’ was an Act in recognition of the awareness that deforestation and ecological imbalances as a result of deforestation have become social menaces and further deforestation and ecological imbalances should be prevented. That was the primary purpose writ large in the Act of 1980. Therefore the concept that power coupled with the duty enjoined upon the respondents to renew the lease stands eroded by the mandate of the legislation as manifest in 1980 Act in the facts and circumstances of these cases. The primary duty was to the community and that duty took precedence, in our opinion, in these cases. The obligation to the society must predominate over the obligation to the individuals.”

Though appellant had relied on the earlier decision in State of

Bihar Vs. Banshi Ram Modi ((1985) 3 SCC 643) on the facts it was

distinguished as depriving the collection of feldspar or quartz which

he may come across while he is carrying on mining operation for

Winning Mica would lead to a unreasonable result which would not in

any way sub-serve the objective as their exist a lease wherein mining

operation was being carrying on and what was due by incorporation of

a new term was that while mining operations were being carried on

some other mineral were available, he was giving the right to collect

them and the new lease only permitted utilization or collection of the

said other minerals and does not extend the area of the lease. Their

Lordships therefore held:

“19. In the instant appeals the situation is entirely different. The appellants are asking for a renewal of the quarry

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leases. It will lead to further deforestation or at least it will not help reclaiming back the areas where deforestations have taken place. In that view of the matter, in the facts and circumstances of the case, in our opinion, the ratio of the said decision cannot be made applicable to support the appellants’ demands in these cases because the facts are entirely different here. The primary purpose of the Act which must sub-serve the interpretation in order to implement the Act is to prevent further deforestation. The Central Government has not granted approval. If the State Government is of the opinion that it is not a case where the State Government cannot apparently seek such approval in a matter in respect of which, in our opinion, it has come to the conclusion that no renewal should be granted.”

The Honourable Supreme Court in Rural Litigation and

Entitlement Kendra Vs. State of U.P. (1989 Supp.(1) SCC 504)

reiterated that whether it is a case of fresh lease or renewal following

exercise of the option by the lessee, the compliance of Section 2 of FC

Act is a necessary condition precedent. It was held as follows:

“The ratio of the decision of this Court in State of Rajasthan V. Hari Shankar Rajindra Pal7 has obviously no application to the facts of this case. In Banshi Ram Modi case6 what was being considered was extension of the leases for another mineral which was found while exploitation under the existing mining lease was undertaken. We agree with the view expressed by Brother Mukharji that the Conservation Act of 1980 applies to renewals as well and even if there was a provision for renewal in the lease agreement on exercise of lessee’s option, the requirements of 1980 Act had to be satisfied before such renewal could be granted.”

M/s. JAL therefore cannot contend that as the mining lease was

granted to UPCCL prior to the commencement of the FC Act, there

was braking of the land due to resultant mining and therefore it is not

a forest land or that Section 2 of the FC Act has no application or that

being the renewal of the lease pursuant to the option available under

original lease as well as the specific provision in the tender documents

or on the statement given before the Hon’ble High Court of Allahabad

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in the liquidation proceeding by the State Government that the

successful bidder would be entitled to get renewal of the lease, M/S

JAL is entitled to get renewal of the lease without the prior approval of

the Central Government as provided under Section 2 of the FC Act.

While granting or refusing the grant of the lease or renewal of the

lease, the following directions of the Hon’ble Supreme Court in State

of A.P. Vs. Anupama Minerals (1995 Supp. (2) SCC 117) is relevant.

“2…. The purpose of the Act is conservation of forests and to

prevent the depletion of forest. In other words the Act

intended not only to protect the existing forests but also to

conserve and protect the existing forests in accordance with

the provisions of the Act. In view of the prohibition for grant

of lease in the reserved forest area, grant of renewal in the

fact os the prohibited area will be in violation of law.”

(D) The decision of the Hon’ble Supreme Court in Central for

Environmental Law Vs. Union of India dated 13thNovember,

2000 and the Circular dated 16th August, 2004 / 20th August,

2004 of Ministry of Environment & Forest.

On 13th November, 2000 the Hon’ble Supreme Court passed the

following order in IA 2 in Writ Petition (Civil) 337/1995

“Four weeks for filing of affidavits by the State that

have not already done so. List after five weeks. Pending

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further orders no dereservation of forest/sanctuary/national

park shall be affected”.

The Ministry sought to modify the order by deleting the word

“forest” in that order by filing IA 16. On 09th February, 2004 the said

application was dismissed as follows:-

“We see no ground to allow the application and delete the word

“forest” from the order 13th November, 2000”.

The impact of the order dated 13th November, 2000 is that

pending the disposal of the matter, there shall be no dereservation of

forest sanctuary or national park. It is thereafter the MoEF issued the

circular dated 16th/2OthAugust, 2004 which reads as follows:-

“I am directed to bring to your kind notice that Hon’ble

Supreme Court vide its order dated 13-11-2000 in Writ

Petition (C) No. 337 of 1995, has banned dereservation of

forest/national parks/sanctuaries. The same order has

been reiterated by the Apex Court on 09-02-2004. In view

of the orders of the Court, the matter was placed before the

Forest Advisory Committee on 26-07-2004. Taking the fact

into account the Ministry of Environment and Forests has

already filed an affidavit for vacation of the order. The

Committee decided that all such proposals shall be closed

temporarily and the respective State/UT Governments

would be advised to approach the Supreme Court first, and

seek the vacation of the order banning dereservation. All

such proposals for conversion of forest villages into revenue

villages, and deletion of Section 4 area shall be processed

by the Central Government only after the concerned

105

State/UT Government obtains the permission of Supreme

Court after final decision in the case.”

The arguments of the Learned Senior Counsel appearing for M/s.

JAL is that the Statutory provision under the Forest Act cannot be

interfered or nullified by the Ministry and the order dated 13th

November, 2000 only prohibits dereservation and necessarily it

implies that there should be a declaration of reserved forest as

provided under Section 20 of the Forest Act and the Ministry was

wrong in stating that prior approval of the central Government is

necessary for deletion of an area from the notification issued under

Section 4 of the Forest Act. True, as stated earlier a reserved forest

would come into existence only on the notification issued under

Section 20 of the Forest Act. Section 20 makes it clear that the

notification shall be published in the official gazette declaring the land

to be reserved from a date fixed by the notification and from the date

so fixed such forest shall be deemed to be a reserved forest. By

issuing a notification under Section 4, by exercising the powers under

Section 3, the State Government is only declaring that it has been

decided to constitute such land a reserved forest. Though the bar

provided under Section 5 would start to operate from the date of such

publication of the notification, the land covered under the said

notification will not automatically become a reserved forest. It is only

after completing the procedure provided under the Act like

proclamation by the Forest Settlement Officer, the determination of

the claim if any preferred under Section 6 or 9 as well as the appeal if

any preferred under Section 17 and its decision under Section 18, a

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notification as provided under Section 20 can be issued. The said

land/forest would become a reserved forest only from the date so fixed

in the notification published in the official gazette under Section 20 of

the Act. Therefore, it cannot be said that exclusion of a land, whole or

part, from an area covered under the notification issued under section

4 of the Forest Act would amount to dereservation. Section 27 of the

Forest Act empowers the State Government by notification in the

official gazette direct that any forest or any portion thereof reserved

under the Act shall cease to be a reserved forest from a date fixed by

that notification and from the date so fixed, such forest or portion

thereof shall cease to be a reserved forest. Therefore, though it is not

provided under Section 27 of the Act, by virtue of the order dated 30th

November, 2000 which admittedly subsists even today, before issuing

a notification under Section 27 declaring the forest no longer a

reserved forest, prior approval of the Central Government is

necessary. Even after a notification under Section 4 of the forest Act

is issued declaring the decision to constitute such land a reserved

forest, nothing in the Forest Act prevents the State Government from

issuing a notification in modification of the earlier notification by

deleting the whole or part of a land covered under the notification

constituting a reserved forest. In view of the decision dated 08th

February, 1999, holding that the lands which are subject to the

notification under Section 4 of the Forest Act would also come within

the purview of the Section 2 of the Forest (Conservation) Act, it would

be necessary to obtain appropriate clearance from the appropriate

Authority, a prior approval as provided under Section 2 of the FC Act

107

is mandatory. In view of the mandate of Article 141 of the

Constitution of India, the ratio of the said decision of the Hon’ble

Supreme Court is the law of the land. If that be so, it cannot be said

that the direction in the said circular issued by the Ministry. in the

light of the orders passed by the Hon’ble Supreme Court, is illegal or

invalid.

The lands excluded by the Forest Settlement Officer and upheld

by the Additional District Judge, include 253.176 hectares in

Markundi village. By order dated 25th January, 2008 in Case No.

398/400 the said land was excluded. That order was confirmed by

order dated 28th November, 2008. Admittedly this land forms part of

the Kaimur Wildlife Sanctuary. A land notified in the Wildlife

Sanctuary, cannot be excluded from the sanctuary without the

permission of the National Board for Wildlife and the Hon’ble Supreme

Court. In fairness, the Learned Senior Counsel appearing for M/s.

JAL submitted that though this 253.176 hectares also form part of the

land excluded by the Forest Settlement Officer and confirmed by the

Additional District Judge and also form part of the land included in

the report of the CEC, as proceedings before pending before the

District Court in respect of the said land M/s. JAL is not pressing the

claim in respect of the said 253.176 hectares and their claim now is

restricted to 778.991 out of 1083.231 hectares mentioned in the

report of CEC. As the said land forms the part of the Kaimur Wildlife

Sanctuary, without the sanction of the National Board for Wildlife and

the Hon’ble Supreme Court, no mining license could be renewed or

108

permission for non-forest activities could be permitted in the said

land.

In view of the above discussions we hold that exclusion of

778.991 hectares and 253.148 hectares covered under the Kaimur

Wildlife Sanctuary are bad in law and they form part of the lands

notified under Section 4 of the Forest Act. We further hold that as the

settlement proceedings were finalized in respect of all those lands

before M/s. JAL submitted the bid and purchased the rights of

UPCCL, as directed by the Hon’ble Supreme Court in the order dated

23rd November, 1986 in Banwasi Seva Ashram case, the notification

under Section 20 should have been issued by the state government

without delay much earlier to the date when the M/s. JAL obtained

rights over the said lands. Though M/s. JAL is entitled to get renewal

of the mining lease, as purchaser of the rights and assets of UPCCL in

the liquidation proceedings, such lease could be renewed by the State

of UP only after getting prior approval from the Central Government.

With regard to the land which is part of the Kaimur Wildlife

Sanctuary, approval of the National Board for Wildlife and the Hon’ble

Supreme Court is necessary. The orders passed by the Forest

Settlement Officer and confirmed by the Additional District Judge in

the claims preferred by M/s. JAL subsequent to the finalization of the

orders passed by the Forest Settlement Officers and Additional

District Judges pursuant to the directions in Banwasi Seva Ashram

case dated 20th November, 1986 are not valid in law. The following

observation of the honourable Supreme Court in Rural litigation and

entitlement Kendra ( supra )is relevant.

109

“It is clear from the directions contained in the order of March 12, 1985, as also the ratio of the judgment in the Ambica Quarry Works case5 that even if there has been an order of the court and no challenge is raised against such order this Court could invoke its jurisdiction to nullify the direction or order and if any order, direction of decree has been passed ignoring the provisions of the Conservation Act of 1980 the same would not be binding. We have been given to understand during the hearing of these cases that appeals have been preferred by the State of Uttar Pradesh where decrees have been passed directing renewal. When this Court left the litigations to be continued, the Conservation Act of 1980 and not been noticed. Therefore, liberty had been granted to agitate the disputes arising out of refusal to renew. In view of the provisions in the Conservation Act and the opinion expressed in Ambica Quarry Works case5, with which we are in agreement, the decrees also would not be sustainable where prior approval of the Central Government has not been obtained. We agree with Brother Mukharji that whether it is a case of first grant or renewal following exercise of option by the lessee, the compliance of Section 2 of the Conservation Act is necessary as a condition precedent.”

Those orders were passed in violation of the directions of the

Honourable Supreme Court that the order passed by the Additional

District Judge would be final and it is to be honoured by the state and

is to be implemented. We therefore hold that the said orders were

passed without jurisdiction and are therefore to be treated as non est

and the exclusions from the area covered by the notification issued

under section 4 of the Forest Act by the said orders will have no force.

In the light of the aforesaid discussions the recommendations of

the CEC are accepted with the following directions:

a. The orders passed by the Forest Settlement Officers for

exclusion 1083.231 hectares of the land notified under

Section 4 of Indian Forest Act are declared null and void as

the settlement proceedings directed by the Supreme court

110

was finalized several years prior to M/s. JAL obtained right

over the land and also because the Forest Settlement

Officer or the Additional District Judge has no power to

exclude the said lands from the notification issued under

Section 4 which has already been finalized. The fact that

no notification under Section 20 in respect of the said land

were issued by the state, as against the unambiguous

direction of the Supreme Court and the solemn assurance

made to the Supreme Court by the state, and as per the

judgement on determination of the appeal the order of the

Additional District Judge would become final and is an

order passed under the Forest Act, will not empower the

Forest Settlement Officer or the Additional District Judge to

entertain any subsequent application in respect of already

settled lands. In view of the declaration by the Hon’ble

Supreme Court in Banwasi Seva Ashram case dated 20th

November, 1986 the order of the Additional District Judge

would be final and the Government had to implement the

order. The failure of the State Government to notify the

said lands as reserved forest would not enable the State

Government or the Forest Settlement Officer to exclude the

very same land, when earlier it was found that the lands

cannot be excluded and the order has already become final

and nobody exercised the liberty reserved by the Supreme

Court in the judgment to approach the court if directions

are necessary. Therefore, renewal of the mining lease, in

111

favour of M/s. JAL can only be after obtaining prior

approval of Central Government as provided under Section

2 of Forest (Conservation) Act, 1980 and that too on

payment of NPV and other payments warranted under law.

In respect of 256.176 hectares which form part of the

Kaimur Wildlife Sanctuary additionally prior approval of the

National Board for Wildlife and the Hon’ble Supreme Court

is necessary to renew the lease.

b. The State of U.P. shall cancel all mining leases whether

fresh or renewal and all other non-forestry activities on the

areas notified under Section 4 of the forest Act for which

settlement rights have been finalized pursuant to the

Judgement in Banavasi Seva Asram case dated 20th

November, 1986 and shall ensure that there is no non-

forest activity including mining in any such land without

the permission/approval of the Hon’ble Supreme Court.

c. The notification under Section 20 of Indian Forest Act shall

be issued immediately in respect of the lands falling in

Tehsil Dudhi and Robertganj, in accordance with the

findings in this judgement modifying the one issued earlier,

including all the lands for which settlement proceedings

were carried out as per the Judgement dated 20th

November, 1986 and become final.

d. The State of UP shall take appropriate action to protect and

conserve the forest and prevent any violation of the

provisions of FC Act and the rules. The state shall also

112

take appropriate action against all the officers found liable

for the failure to take action including non publication of

the notification under section 20 of the Forest Act as

directed by the Supreme Court and thereby prevented the

implementation of the directions of the Supreme Court.

1. M.A. 1166 of 2015 (IA 2469 of 2009) stands dismissed.

2. M.A. 1164 of 2015 (IA 2939 of 2010) stands dismissed.

3. The Original Application 494 of 2015 (CWP 130/2011) stands

disposed of in the light of the directions issued.

4. M.A. 1169 of 2015 (IA 3877 of 2015) stands allowed.

All the applications are disposed accordingly, but without any

order as to cost.

M.A. No. 1165 of 2015 was only an application for exemption

from filing official English translation of some of the exhibits filed.

That application also later disposed, as translations were already filed.

M.A. No. 1164A of 2015 (IA 3023 of 2011) filed before the Hon’ble

Supreme Court is only application to receive additional documents to

bring on record, as evidence. That application was allowed and

disposed. M.A. No. 1164B of 2015 (IA 3024 of 2011) is an application

for exemption from filing official English translation. It was also

disposed as later translations were filed. M.A. No. 1164C of 2015 (IA

3030 of 2011) is an application filed for interim directions by M/s. JAL

to continue the construction in plot 3200. No interim directions were

given by the Hon’ble Supreme Court. As the matter is finally

disposed, the application is also disposed. M.A. No. 1164D of 2015

113

(IA 3032 of 2011) is an application filed for permission to file

additional documents. It was also allowed and the additional

documents were permitted to be filed. The petition also stands

disposed.

M.A. No. 1164A of 2015 (I.A. No. 3023 of 2010), M.A. No. 1164B of 2015 (I.A. No. 3024 of 2010), M.A. No. 1164C of 2015 (I.A. No. 3030 of 2010) and M.A. No. 1164D of 2015 (I.A. No. 3032 of 2010)

Accordingly, M.A. No. 1164A of 2015 (I.A. No. 3023 of 2010),

M.A. No. 1164B of 2015 (I.A. No. 3024 of 2010), M.A. No. 1164C of

2015 (I.A. No. 3030 of 2010) and M.A. No. 1164D of 2015 (I.A. No.

3032 of 2010) stand disposed of.

.....…………………………….,JM

(M. S. Nambiar )

..……………………………….,JM (Raghuvendra S. Rathore

.……………………………….,EM (Dr. D.K. Agrawal)

.……………………………….,EM (Prof. A.R. Yousuf)

New Delhi