Holding

An amendment to a pre‑Act mining lease that permits extraction of additional minerals from forest land already cleared before the Act does not constitute a fresh ‘non‑forest purpose’ and therefore does not require prior Central Government approval under Section 2(ii) of the Forest (Conservation) Act, 1980.

Summary

The State of Bihar granted a mining lease in 1966 for mica on 80 acres of reserved forest. During mining, the lessee discovered felspar and quartz and, in 1983, the parties executed a Deed of Incorporation to include these minerals in the existing lease. The Divisional Forest Officer barred the extraction, citing Section 2(ii) of the Forest (Conservation) Act, 1980, which requires prior Central Government approval for any non‑forest use of forest land. The High Court held that the Act did not apply, allowing the lessee to extract the new minerals. On appeal, the Supreme Court affirmed that because the forest land had already been cleared before the Act’s commencement, the amendment did not amount to a fresh ‘non‑forest purpose’; consequently, prior Central approval was not required, and the lessee may continue mining the additional minerals on the already cleared five acres, subject to conditions.

Issues considered

Whether Section 2(ii) of the Forest (Conservation) Act, 1980 applies to an amendment of a mining lease granted before the Act for extraction of additional minerals from forest land already cleared prior to the Act.
Whether prior Central Government approval is required for such amendment.
Whether the amendment constitutes a fresh breaking up or clearing of forest land.

Legislation cited

Forest (Conservation) Act, 1980s. 2(ii)

Subjects

Forest Conservation Actmining leaseprior approvalnon‑forest purposelease amendmentreserved forestenvironmental law

Judgment

34S

StATE OF BIHAR
A
v.

BANSHI RAM MODI & ORS.

May 7, 1985
B
[A.P. SEN AND E.S. VENKATARAMIAH, JJ.)

Forest (Conservation) Act, 1980, s. 2(ii)-lnterpretation of-Mining
least granted prior to coming into force of the Act-Minerals not specified in least
found in the area-Whdher permission of Central Government necessary for C
winning new minerals from the same area.

Clause (ii) of Section 2 of Forest (Conservation) Act, 1980 (for short, the
Act) which came into force on October 25, 1980, provides that 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 D
of the Central Government, any order directing that any forest land or any
portion thereof may be usf'd for any non~forest purpose. E:xplanation to section
2 of the Act defines ''non-forest purpo~e" as breaking up or clearing of any
forest land or portion thereof for any purpose other than reafforestation.

Respondent No, 1, who had been granted a mining lease in the year 1966
for a period of 20 years for mining and winning mica in respect of 80 acres of
E
land in accordance with Mining Concession Rules, 1960 came acress two other
minerals, namely, felspar and quartz during the course of mining operations.
Under the conditions of the lease, Respondent No. 1 applied to the State
_.-,ernment to include the said minerals also in the earlier lease deed so that
• - could win and dispose of those minerals also. Thereupon, the State Govern-
ment and the lessee executed a Deed of Incorporation on April 6, 1983 allowing F
the lessee to win and carry away felspar and Quartz after paying the required
royalty from the area over which he had been granted lease for mining mica.
On August 8, 1983 the Divisional Forest Officer wrote a Jetter to the lessee
&tating that the impugned mining area was situated within the reserved

.. forest area and that, since previous approval of the Central Government had
not been obtained for inclusion of felspar and qllartz in the mining lease as
required by the Act. Respondent No. I could not be permitted to win felspar
and quartz even through the Deed of Incorporation had been executed. Aggri-
G
eved by the said letter, Respondent No. 1 filed a writ petition in the High Court
contending that the provisions of the Act were not applicable to a case where
the lease had been entered into prior to the coming into force of the Act and
that there was no need to break up or clear any forest land other than the area
of only 5 acres of land where mining operations were being carried on. The
H
Hish Court allowed the writ petition. Hence this appeal by the State.
•

346 SUPREME COUkT REPORTS (1985] SUPPL, .s.c.a.

Disposing of the appeal,
A
HELD: (I) It is clear from a reading <if clause (ii) of section 2 of the Act
and the Explanation to that section that these two parts of the section mean that
after the commencement of the Act no fresh breaking up of the forest land or
no fresh clearing of the forest on any such land can be permitted by any State
Government or any authority without the prior approval of the Central
Government. But if such permission has been accorded before the coming into
B force of the Act and the forest land is broken up or cleared then obviously the
section cannot apply. (350 D-FJ

(2) In the instant case, it is not disputed that in an area of five acres out
of eighty acres covered by the mining lease the forest land had been dug up and
mining operations were being carried on even prior to the coming into force of
c the Act. If the State Government permits the lessee by the amendment of the
lease deed to win and remove felspar and quartz also in addition to mica it
cannot be said that the State Government has violated section 2 of the Act
because thereby no permission for fresh breaking up of forest land is being
given. The result of taking the contrary view will be that while the digging for
purposes of winning mica can go on, the lessee would be deprived of collecting
felspar or quartz which he may come across while he is carrying on miniog
D operations for winning mica. That would lead to an unreasonable result which
would not in any way subserve the object of the Act. (350 G-H; 351 A]

(3) While before granting permission to start mining operations on a
vergin area section 2 of the Act has to be complied with, it is not necessary to
seek the prior approval of the Central Government for purposes of carrying
E out mining operations in a forest area which is broken up or cleared before the
commencement of the Act. [351 BJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2439
of 1984.
F
From the Judgment and Order dated 18.11.1983 of the Patna
High Court in W.P. No. 1014 of 1983.

-
Jaya Narayan and Pramod Swarup for the Appellant.

G Gaur G. Ray, A.K. Nag, Mrs. N. Bakshi, Anil Dev Singh, P.P.
Gupta and R.N. Poddar, for the Respondent.

The Judgment of the Court was delivered by
H
VENKATARAMIAH, J. Respondent No. 1 Banshi Ram Modi
was granted a mining lease by the State of Bihar for mining and
winning mica in respect of an area of eighty acres of land in the
nntAR v. BANSHI RAM (Venkataramiah, J.) 347

villages of Meghatri and Bishuutikar in the district Hazaribagh,
which formed part of reserved forest area in the year 1966. A mining A
lease deed was executed in that connection by the lessee and the
State Government on April 25, 1966 in accordance with the Mineral
Concession Rules, 1960. The lease deed was registered on May 30,
1966. The period of lease was fixed at 20 years. The said lease
will expire on April 24, 1986 unless it is renewed in accordance with B
law.

During his mining operations which are admittedly now being
carried on in about five acres only Respondent No. I came across
two other minerals name'y fe!spar and quartz which are commonly
known to be associated minerals of mica. Under the conditions of c
the lease the lessee had to report to the State Government the dis-
covery in the leased area of any mineral not specified in the lease
within sixty days of such discovery and if any mineral not specified
in the lease was so discovered in the leased area he could not win and
dispose of such mineral unless such mineral was included in the lease
or a separate lease was obtained therefor. Accordingly, on discovery D
of felspar and quartz in the area where the mining operations were
being carried on for mica, Respondent No. I applied to the State
Government to include the said minerals also in the lease executed
on April 25, 1966, so that he could win and dispose of these mine-
rals also. On the State Government agreeing to do so, a Dead of E
Incorporation dated April 6, 1983 was duly executed by the parties
to the original lease. By the said Deed, felspar and quartz were
included in the original lease as minerals which the lessee could win
and carry away after paying the required royalty from the area over
which he had been granted lease for mining mica. All other condi-
tions of the lease including the period of lease remained the same. F
In fact it was not a new mining lease for a fresh period. The lease
is to exp· re on April 24, 1986 as originally stipulated.

It may be mentioned here that the State Government did not
'· ·obtain the previous approval of the Central Government for the
inclusion of the two new minerals in the original lease under clause
G
(ii) of section 2 of the Forest (Conservation) Act, 1980 (Act 69 of
1980) (hereinafter .referred to as 'the Act') which was deemed to have
come into force on October 25, 1980. The relevant part of section 2
of the Act reads thus :-
H
"2. Restriction on the dereservation of forests or
use of forest land for non-forest purpose-Notwithstanding
348 SUPREME COURT REPORTS iJ985J SUPPL. S.C.R.

·anything contained in any other law for the time being in
A force in a State, no State Government or other authority
shall make, except with the prior approval of the Central
Government, any order directing,-

B (ii) that any forest land or any portion thereof may
be used for any non-forest purpose.

Explanation-For the purpose of this section 'non-
forest purpose' means breaking up or clearing of any
forest land or portion thereof for any purpose other than
c reafforestation."

It would appear that after the coming into force of the Act the
Government of India (Ministry of Agriculture) wrote to the Chief
Secretary to the Government of Bihar drawing his attention to the
provisions of the Act, and the prohibitions contained therein.
D Perhaps, as a result of the said letter the Divisional Forest Officer,
Kodarma Forest Division, Kodarma, within whosh jurisdiction the
mining area of Respondent No. 1 was situated, wrote to Respondent
No. I on August 8, 1983 stating that the mining area was situated
within the reserved forest area and that since previous approval of
E the Central Government had not been obtained for inclusion of feh-
par and quartz in the mining lease as required by the Act, Respon-
dent No. I could not be permitted to win felspar and quartz, even
though the Deed of Incorporation had been executed.

Aggrieved by the said letter of the Divisional Forest Officer,
F Respondent No. I filed a writ pettition on the file of the High
Court of Patna (Ranchi Bench) contending that the provisions of the
Act were not applicable to a case where the lease had been entered
into prior to the coming into force of the Act and that there was no
need to break up or clear any forest land other than the area where
mining operations were being carried on. The High Court after
G hearing the parties allowed the writ petition holding that the Act had
no application to the instant case and he could win and take away
felspar and quartz from the mining area. But it however made
clear that if for winning felspar and quartz the lessee was required to
H break up or clear any forest land other than the area required for
mining to win mica, he could not do so without obtaining the pre"
vious approval of the Central Government under the Act.
BlmR v. BANSHJ RAM (Venkataramiah, J.) 349

Aggrieved by the judgment of the High Court, the State of
Bihar has filed this appeal by ipecial leave. A

In this case it has to be mentioned that the learned counsel for
Respondent No. 1 has stated that Respondent No. 1 would not in
any event carry on any mining operations on any area other than the
five acres of land which had already been utilised for non-forest pur- B
pose even before the Act came into force by breaking up the land,
for the purpose of winning felspar or quartz. It has also to be men·
tioned here that before the High Court, the learned Standing Counsel
for the Central Government had stated that the Act had no appli·
cation to leases granted prior to the coming into force of the Act and
that there is no repudiation of that stand before us by the Central c
Government. In view of the above statements the only question
wbich remains to be considered in this appeal is whether the mining
operations which are being carried on in the five acres of land for the
purpose of winning felspar and quartz, are illegal by reason of the
absence of the previous approval of the Central Government granted D
under the Act.

In order to appreciate the contentions of the parties on the
limited question before us, it is necessary to ascertain the object of
the Act. As its Statement of Objects and Reasons indicates, the Act
was passed with a view to checking deforestation which had been
E
taking place in the country on a large scale and which had caused
ecological imbalance and thus led to environmental deterioration.
It is well-known that breaking up of the soil or the clearing of the
forest land affects seriously reafforestation or regeneration of forests
and therefore such breaking up of the soil can only be permitted
after taking into consideration all aspects of the question such as the F
overall advantages and disadvantages to the economy of the country,
environmental conditions, ecological imbalance that is likely to occur,
its effects on the flora and the fauna in the area etc. The Act having
stated in section 2 thereof that no dereservation of forests or use of
forest land for non-forest purposes can be permitted without the pre-
G
vious approval of the Central Government has further provided for
the constitution of an Advisory Committee to advise the Central
Government on all cases in which the question of granting permi·
ssion required by section 2 of the Act arises. The Act is intended to
H
serve a laudable purpose and it has got to be enforced strictly for the
benefit of the general public. The Act applies not merely to cases of
mining lease granted in respect of areas within the reserved forests
350 SUPREME COURT REPORTS [1985) SUPPL, S.C.R.

but to all cases where forest land is sought to be used for non-forest
A purposes.
'
The question hefore us is a narrow one and that is whether
in the case of a mining lease which has been granted for winning a
certain mineral prior to the coming into force of the Act, if the
B lessee applies to the State Government after the coming into force of
the Act for permission to win and carry any new mineral from any
part of a forest area which is already utilised for non-forest purposes
by carrying out mining operations before the coming into force of the
Act, the prior approval of the Central Government has to be obtained
under section 2 of the Act for the purpose of granting such permi-
c ssion.

The relevant parts of section 2 of the Act which have to be
construed for purposes of this case are clause (ii) of and the Expla-
nation to that section. Clause (ii) of section 2 of the Act provides
D that notwithstanding anything contained in any other law for the
time being in force in a State, no State Government or other autho-
rity shall make, except with the prior approv,tl of the Central Govern-
ment, any order directing that any forest land or any portion thereof
may be used for any non-forest purpose. Explanation to section 2
E of the Act defines "non-forest purpose" as breaking up or clearing of
any forest land or portion thereof for any purpose other than reaffore•
station. Reading them together, these two parts of the section mean
that after the commencement of the Act no fresh breaking up of the
forest land or no fresh clearing of the forest on any such land can be
permitted by any State Government or any authority without the
F prior approval of the Central Government. But if such permission
has been accorded before the coming into force of the Act and the
forest land is broken up or cleared then obviously the section canuot
apply. In the instant case it is not disputed that in an area of five

G
acres out of eighty acres covered by the mining lease the forest land
had been dug up and mining operations were being carried on even
prior to the coming into force of the Act. If the State Government
permits the lessee by the amendment of the lease deed to win and
..
remove felspar and quartz also in addition to mica it cannot be said
that the State Government has violated section 2 of the Act because
thereby no permission for fresh breaking up of forest land is being
H
given. The result of taking the contrary view will be that while the
digging for purposes of winning mica can go on, the lessee would be
deprived of collecting felspar or quartz which he may come across
BIHAR v. BANSHI RAM ( Venkataramiah, J.) 351

while he is carrying on mining operations for winning mica. That
would lead to an unreasonable result which would not in any way A
subserve the object of the Act. We are, therefore, of the view that
while before granting permission to start mining operations on a
virgin area section 2 of the Act has to be complied with it is not
necessary to seek the prior approval of the Central Government for
purposes of carrying out mining operations in a forest area which is
broken up or cleared before the commencement of the Act. The B
learned counsel for Respondent No. I has also given an undertaking
the Respondent No. I would confine his mining operations only to
the extent of five acrea of land on which mining operations have
already been carried out and will not fell or remove any standing
trees thereon without the prior permission in writing from the c
Central Government. Taking into consideration all the relevant
matters, we are of the view that Respondent No.. I is entitled to
carry on mining operations in the said five acres of land for purposes
of removing felspar and quartz subject to the abov1: conditions.

With the above modification, the judgment of the High Court D
is affirmed. The appeal is accordingly disposed of but with no order
as to costs.

M.L.A Appeal disposed.