Letter to six noticees in re section 80 cpc notice dated 24.03.16

Sarvadaman Singh Oberoi, 1102/Tower 1, Uniworld Garden, Sec 47, Gurgaon, 122018
Mob: 9818768349 Email: manioberoi@gmail.com
Page 1 of 61
Letter to Six Noticees in re Section 80 CPC Notice dated 24.03.16
To, 08.06.2016
1. Shri B K Tripathi, IAS, The Member Secretary,
National Capital Region Planning Board (Ministry of Urban Development)
Government of India, Core IV B,First Floor, India Habitat Centre, Lodhi Road
New Delhi 110003
ncrpbms@nic.in
2. Shri Depinder Singh Dhesi, IAS, The Chief Secretary
Government of Haryana, Haryana Secretariat
Chandigarh 160001
cs@hry.nic.in
3. Dr. (Mrs.) Amarinder Kaur, IFS, Principal Chief Conservator of Forests,
Government of Haryana,
C 18, Sector 6, Panchkula. 134109
pccfhry@nic.in
4. Shri P. Raghavendra Rao, IAS, The Additional Chief Secretary,
Town and Country Planning Department, Government of Haryana
Haryana New Secretariat, Chandigarh 160017
pstcphry@gmail.com
5. Shri Pradeep Kumar Sinha, IAS, The Cabinet Secretary
Cabinet Secretariat, Government of India
Rashtrapati Bhawan, New Delhi 110004
cabinetsy@nic.in
6. Shri Ajay Narayan Jha, IAS, The Secretary,
Ministry of Environment, Forest and Climate Change,
Government of India, CGO Complex, Lodhi Road,
New Delhi 110003
secymoef@nic.in
INDEX
Ser Item Paras Pages
1 Take notice of contempt proceedings 1-2 2
2 Copy of Email Notice u/s 80 CPC dt. 24.03.16 3 2-12
3 Copy of Annx P-30/24.03.16 – Definition of forest 4 13-36
4 Dilution of environmental norms by MoEFCC in 2016 5 36-39
5 Attack on Definition of Forests by Ministry of Mning in 2000 6 39-45
6 Public Trust Doctrine in Environmental Matters, 2007 7 45-50
7 06.05.14 letter of Sh. Y.S. Malik, IAS then Additional Chief
Secretary, Forest & Wildlife, Haryana
8 50-60
8 (a) Affidavit dated 09.05.14 of Shri T.C. Gupta, then Principal
Secretary Town & Country Planning Department in the High
Court (Annexure L-1)
(b)Prime Minister Office letter dated 23.04.14 (Annexure L-2)
9 61
9 Conclusion 10-12 61

Page 2 of 61
Subject: Letter to Six Noticees in re Section 80 CPC Notice dated 24.03.16
Dear Sirs/ Madam,
1. Kindly take note qua the meeting of NCRPB proposed on 13.06.16 and non-reply
to Legal Notice to NCRPB and others dated 24.03.16, that, in view of Article 142
law laid down in Salem Advocates Bar Association v. Union of India - (2005)
6 SCC 344 (3 judges) and keeping grave threat to life and liberty and
environment, the applicant herein shall be duty bound under Articles 39(b), 47,
48A, 51, 51A, 252, 253 & 254 of the Constitution of India to initiate civil
contempt proceedings by name against the current holders of office as regards
the six noticees in the Notice u/s 80 CPC dated 24.03.16 (see paras 3-4 below)
under the provisions of Article 129 and 142 of Constitution of India read with
Order LV of Supreme Court Rules 2013 and Rule 3(c) of Rules to Regulate
Proceedings for Contempt of the Supreme Court, 1975 in terms of Sections 22 &
23 of the Contempt of Courts Act, 1971.
2. That in Salem Advocates Bar Association v. Union of India - (2005) 6 SCC
344 (3 judges) at SCC p.370-371 paras 38-39 it was held: “38. Section 80(1) of
the Code requires prior notice of two months to be served on the Government as
a condition for filing a suit except when there is urgency for interim order in
which case the Court may not insist on the rigid rule of prior notice. The two
months period has been provided for so that the Government shall examine the
claim put up in the notice and has sufficient time to send a suitable
reply.......There is no accountability in the Government, Central or State or the
statutory authorities in violating the spirit and object of Section 80. 39. These
provisions cast an implied duty on all concerned governments and States and
statutory authorities to send appropriate reply to such notices. Having regard to
the existing state of affairs, we direct all concerned governments, Central or State
or other authorities, whenever any statute requires service of notice as a condition
precedent for filing of suit or other proceedings against it, to nominate, within a
period of three months, an officer who shall be made responsible to ensure that
replies to notices under Section 80 or similar provisions are sent within the period
stipulated in a particular legislation. The replies shall be sent after due application
of mind. Despite such nomination, if the Court finds that either the notice has not
been replied or reply is evasive and vague and has been sent without proper
application of mind, the Court shall ordinarily award heavy cost against the
Government and direct it to take appropriate action against the concerned Officer
including recovery of costs from him.”
3. That copy of notice (email) dated 24.03.16 reads:
“

Page 3 of 61
Sarvadaman Oberoi <manioberoi@gmail.com> Thu, Mar 24, 2016 at 8:12 AM
To: Secretary National Capital Region Planning Board <ncrpb-ms@nic.in>, Chief
Secretary <cs@hry.nic.in>, pccf-hry@nic.in, "P. Raghavendra Rao"
<pstcphry@gmail.com>, cabinetsy@nic.in, secy-moef@nic.in
P-25 MoEF letter dt. 23.09.14 and its Annexure ...
NOTICE U/S 80 CPC, U/S 30 (b) of Act No. 19 of 2010, U/S 19(b), 17 & 5-A of
Act No. 29 of 1986, U/S 2-A, 3-A & 3-B of Act No. 69 of 1980 and u/s 2(j), 10(2)
& 35 of Act No. 2 of 1985
24.03.2016
To,
1. The Member Secretary,
National Capital Region Planning Board
(Ministry of Urban Development)
Government of India
Core-IV B,First Floor,
India Habitat Centre, Lodhi Road
New Delhi 110003 ncrpb-ms@nic.in
2. The Chief SecretaryGovt. of Haryana
Haryana Secretariat Chandigarh
160001 cs@hry.nic.in
3. Principal Chief Conservator of Forests,
Government of Haryana,
Sector-6, C-18, Panchkula.
134109 pccf-hry@nic.in
4. The Additional Chief Secretary,
Town and Country Planning Department
Government of Haryana
Haryana New Secretariat
Chandigarh 160017
pstcphry@gmail.com
5. The Cabinet SecretaryCabinet Secretariat,
Government of India
Sarvadaman Oberoi <manioberoi@gmail.com>
NOTICE U/S 80 CPC etc

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Rashtrapati Bhawan New Delhi
110004 cabinetsy@nic.in
6. The Secretary,
Ministry of Environment and Forest, Govt. of India
CGO Complex, Lodhi Road, New
Delhi 110003 secy-moef@nic.in
NOTICE U/S 80 CPC, U/S 30 (b) of Act No. 19 of 2010, U/S 19(b), 17 & 5-A of Act
No. 29 of 1986, U/S 2-A, 3-A & 3-B of Act No. 69 of 1980 and u/s 2(j), 10(2) & 35
of Act No. 2 of 1985 FOR CONSTRUCTION, WITHOUT
APPROVAL OF COMPETENT AUTHORITY, IN ARAVALLI FOOTHILLS, AN
AREA TO BE PROTECTED AT ANY COST SINCE 1992
1. Kindly take notice U/S 80 CPC, U/S 30 (b) of Act No. 19 of 2010, U/S
19(b), 17 & 5-A of Act No. 29 of 1986, U/S 2-A, 3-A & 3-B of Act No. 69 of
1980 and u/s 2(j), 10(2) & 35 of Act No. 2 of 1985 FOR CONSTRUCTION,
WITHOUT APPROVAL OF COMPETENT AUTHORITY, IN ARAVALLI
FOOTHILLS, AN AREA TO BE PROTECTED AT ANY COST SINCE 1992.
That petitioner resides in Gurgaon District hence any deterioration caused to
adjoining Aravalli foothills causes direct harm to petitioner. That cause of action
arises on 23.03.2016 on receipt of email information of grave damage to Aravalli
Foothills. See Annexure P-29.
2. That the primary responsibility of ensuring proper adherence by AddresseeNo. 4
of the Regional Plan is and was of Addressee No. 1 by operation of of the special
act, Act No. 2 of 1985 whereby development and conservation in National
Capital Region, which finds mention in Section 10 (2), had been made the
primary responsibility of Addressee No. 1 w.e.f. 19.10.1984. That the Regional
Plan alone controls the land-uses and the development of infrastructure in the
National Capital Region. (Section 2 (j) per contra 2 (d), 2 (i) and 2 (m))
3. That as regards identification of areas to be protected as forests underextended
meaning laid down by a 3 judge bench in Samatha and others v. State of A.P. and
others, 1997 (8) SCC 191 at SCC pp. 271-272 at paras 120121, p. 301 at para 194
and p. 326 at para 194, which definition has since been discussed, commented
upon and decisively re-iterated by another three judge bench in In Re
Construction of Park at NOIDA Near Okhla Bird Sanctuary v. Union of India
and Ors, 2011 (1) SCC 744 at SCC pp. 760-762 at paras 29-35. That this included
areas in Aravalli Hills.
4. That the duty of completing timely the survey and marking out was givenjointly to
Addressee Nos. 2 & 3 (as were the PCCF and Chief Secretaries of all other States)
by Order of the Hon'ble Supreme Court in T.N. Godavarman Thirumulpad vs Union

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Of India & Ors, 1997 (2) SCC 267 (2 judges) 12.12.1996 at SCC pp. 270-272 at
paras 4-5 and Lafarge Uraniam Mining (P) Ltd. v. Union of India, 2011 (7) SCC 338
(3 judges) 06.07.2011 at SCC p. 381 para 122.
5. That the proper adherence to Section 10 (2) of the special act, Act No. 2 of
1985, development and conservation at the State level rests primarily on Addressee
No. 4, as the superior office of CCP (NCR) Haryana, which appears to have failed
miserably over the last 20 years to have performed its duties of conservation under
Article 375 of the Constitution read with Article 48A and under the now well
recognised Doctrine of Public Trust imposed upon high public officials. See
Annexures P-15 & P-30 attached.
6. That once the Prime Minister Office passed directions on 23.04.2014 andthe
Addressee No. 6 noting the concerns and directions of the Prime Minister Office
not to proceed with the Sub Regional Plan till concerns of Addressee
No. 6 were addressed, it is a grave breach of federal norms that the State of Haryana,
which has still not addressed the said concerns of Aravalli protection proceeded to
and has notified the illegitimate Sub Regional Plan (See Annexure P-24) and even
misled the High Court to permit resumption of licences to developers in the Aravallis
whereas all licences had been stopped till proper approval of Sub Regional Plan. That
when a directive of the Prime Minister Office has been and is being flouted with
impunity it becomes the responsibility of Addressee No. 5 to enforce discipline and
norms, which it would appear Addressee No. 5 has failed to enforce. (CSMOP Manual
refers)
P-24 SRP Haryana Ch 14 Environment 2014.pdf
7. That Annexure P-1 is a map of the Aravalli 1893 which shows the area of BSF
Co-op Society lies in the paleo-channel of Aravalli foothills. That Annexure
P-9 is a map of this area survyed in 1993-94. That Annexure P-2 to P-4 throw
light on how inspite of PLPA notification and of full knowledge that this area
was Aravalli foothills, a development plan was made without competent
approval and BSF Co-op Society was approved in collusion with Ansal
builder to whittle down the recorded NCZ areas of RP-2001. Wide Highways/
expressways have been built in the forest areas (yet to be identified) without
competent approval) and to add insult to injury the illegitimate existence of
these highways was illegitimately argued by the officials of Addressee No. 4
to justify change of category of Gair Mumkin Pahar/ Bhood Area from its
accepted definition of "Forest" to "Non Forest" urbanisable area in grave
breach of a series of 3 judge bench judgments of the Apex Court holding that
Aravallis from Delhi to Rajasthan shall be protected at any cost so as to stop

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the advance of desert into Delhi and save its pure water reserves from
becoming polluted.
P-26 DTP Gurgaon Memo No. 4259 dt.14.10.14 - Me...
P-27 CCF P-II Memo No.1 dated 30.06.2015 to PCC...
P-28 NGT Judgment and Order 07.07.2015.pdf
P-30 FOREST DEFINITION - Article 48A of the Con...
P-30 FOREST DEFINITION - Article 48A of the Con...
P-29 Gmail - Rampant construction in Gwal Pahar...
P-9 53 H 13 Surveyed in 1993-94.jpg
P-18 NCRPB Steering Committee Review 16.05.2013...
8. That Annexure P-5 shows how Gair Mumkin Pahar and Bhood (No-Go Areas for
construction activity) were planned in 1990.
9. That Annexures P-6, P-7 and P-8 show the scant respect the offices under
Addressee No. 4 had for the Addressee No. 6 when it flouted the notifications at
Annexures P-6 and P-8 upon a bare perusal of the noting sheets at Annexure P-7.
10. That Annexures P-10 to P-13 are only to be perused to arrive at an inescapable
conclusion that BSF Co-op Society never had and still does not have the
mandatory approval of the Addressee No. 6 in terms of Annexure P8 to build on
the No Go areas of PLPA and Gair Mumkin Pahar/ Bhood in the Aravalli
Foothills.
11. That the license issued at Annexure P-14 to BSF Co-op Society is void ab inito
and no construction can continue to remain in the area.
12. That Annexures P-16 and P-17 show that illegality at para 11 above was
compounded by issue of enmass development plan in the No Go Area without
even completing the exercise of identification mandated by the Apex Court in
T.N. Godavarman Thirumulpad vs Union Of India & Ors, 1997 (2) SCC 267 (2

Page 7 of 61
judges) 12.12.1996 at SCC pp. 270-272 at paras 4-5 and Lafarge Uraniam Mining
(P) Ltd. v. Union of India, 2011 (7) SCC 338 (3 judges) 06.07.2011 at SCC p.
381 para 122.
13. That this action breaches the precautionary principle as also the specificfinding
in Samatha and others v. State of A.P. and others, 1997 (8) SCC 191 that unless
an area is positively identified by proper survey as non-forest it shall be presumed
to be forest.
14. That Annexures P-18 to P-27 show that there has been grave loss of 50% of NCZ
by above type of illegitimate activities of development in the conservation zone.
15. That Annexure P-28 has been upheld by the Apex Court and hence no expost
facto sanction is permissible in environment matters.
16. That Annexure P-30 is the compiled law relied upon by the petitioner.
17. That in order to protect the right to life (clean water, fresh air etc) of thoseresiding
in urban areas adjacent to Aravalli Foothills the illegitimate constructions in
Aravalli Foothills must be demolished after making alternate arrangements at
cost of guilty parties for those who would be displaced as a result thereof.
18. That upon a review of the case law it appears that all illegitimateconstruction in
Aravalli Hills/ Foothills is barred from getting ex-post facto sanction and hence
the State Government whose delinquent officers have allowed this state of affairs
by grant of illegitimate licences in furtherance of illegitimate development plans
shall have to recompense those non-builder customers whose properties shall
need to be demolished as a result.
19. That it is therefore requested that steps be taken to prepare for anddemolish each
and every illegitimate construction in the Aravalli Hills/ Foothills of Haryana
State including those in the vvicinty of Gwal Pahari per law well settled.
20. Kindly take this notice and keep it on records, as you are duty bound.
Regards.
Sarvadaman Oberoi
Tower 1 Flat 1102, The Uniworld Garden,
Sohna Road, Gurgaon 122018 Haryana INDIA
Mobile: +919818768349 Tele: +911244227522 Website:
http://www.freewebs.com/homeopathy249/ email:
manioberoi@gmail.com Treasurer Mission Gurgaon
Development
Principal Secretary Federation of Apartment Owners Association
Jaago Re "Aaj Se Khilana Bandh, Pilana Shuru"

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P-2 PLPA S.O. 227 PA 2 1900 S. 4 80
10.11.1980
28 attachments
1.jpg
655K

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P-2 PLPA S.O. 227 PA 2 1900 S. 4 80 10.11.1980

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2.jpg
447K
P-5 Khasra Plan BSF Co-op Society Gwal Pahari
10.10.1990.jpg
3173K
P-6 Aravalli Notification 09.01.1992 1.jpg 1215K
P-6 Aravilla Notification 09.01.1992 2.jpg
902K
P-10 BSF Society Application 01.01.1994 1.jpg 777K
P-10 BSF Society Application 01.01.1994 2.jpg
792K

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P-10 BSF Society AApplication 01.01.1994 3.jpg 1078K

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P-10 BSF Society Application 01.01.1994 6.jpg
542K
P-11 MoEF letter BSF Co-op Society Gwal Pahari
14.01.1994.jpg
787K
P-12 BSF Society Application Reply 14.01.1994.jpg
1057K
P-13 MoEF letter BSF Co-op Society Gwal Pahari
19.01.1994.jpg
782K
P-1 Final Arvali Region Central and Eastern 1893
Map.pdf 2241K
P-3 DDP Gwal Pahari 1984 and BSF Co-op Society Proposal
2001.pdf
2151K
P-4 RP 2001 Tables Ch 13 1989.pdf
169K
P-7 Noting Sheets Valley View Ansal 25.01.92 to 28.05.92 NS 29 to
38 and 41 to 49.pdf
1376K
P-8 ARAVALLI NOTIFICATION 07.05.1992.pdf
36K
P-14 Shajra plan & Copy of Licence BSF. GGN 09.06.1994.pdf 740K
P-15 Public Trust Doctrine in Environmental Law 2007.pdf 240K
P-16 DTCP Master Development Plan Gual Pahari,-2021
11.12.2009.pdf 139K
P-17 Nallah at BSF AnsalAPI Site Local Commissioner Report
15.03.2013.pdf 1906K
P-19 PMO letter seeking compliance report first on MoEF issues
23.04.2014.pdf 48K
P-20 MoEF letter to NCRPB 24.04.2014.pdf 363K
P-21 Minutes of NCRPB Meeting 25.04.2014.pdf
313K
P-22 YS Malik letter 06.05.2014.pdf 1491K
P-23 AFFIDAVIT of TC Gupta 09.05.2014.pdf
556K”

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4. That copy of the enclosure P-30 Forest Definition (Article 48A) enclosed with
notice (email) dated 24.03.16 reads:
“FOREST DEFINITION – ARTICLE 48A OF THE CONSTITUTION OF
INDIA
1. The definition of “forest” as applicable in India today was expounded as
far back as 11.07.97 by a three judges bench (Hon’ble Justice Patnaik
dissenting on interpretation of the provisions of Fifth Schedule of the
Constitution), all of whom agreed on the “extended definition of forest”,
(which definition shall constitute interpretation of Article 48A of the
Constitution of India) in Samatha and others v. State of A.P. and others,
1997 (8) SCC 191 at SCC pp. 271-272 at paras 120-121, p. 301 at para 194
and p. 326 at para 194, which definition has since been discussed, commented
upon and decisively re-iterated by another three judge bench in In Re
Construction of Park at NOIDA Near Okhla Bird Sanctuary v. Union of
India and Ors, 2011 (1) SCC 744 at SCC pp. 760-762 at paras 29-35.
2. However, there is no Constitution Bench judgment on this vital aspect of
Article 48A of the Constitution of India to date. In State of Kerala v. Peoples
Union for Civil Liberties, ILR 2009 (4) Ker 387 at ILR p. 427 a two judge
Bench took note of the strong reservations expressed by a three judge bench
in Balco Employees' Union (Regd) v. Union of India and others, 2002
(2) SCC 333 at para 71 that interpretation of the provisions of the Constitution
should be left to a Bench of five Judges.
3. T.N. Godavarman Thirumulpad vs Union Of India & Ors, 1997 (2)
SCC 267 (2 judges) 12.12.1996 at SCC pp. 270-272 at paras 4-5:
“4. The Forest Conservation Act, 1980 was enacted with a view to check
further deforestation which ultimately results in ecological imbalance;
and therefore, the provisions made therein for the conservation of forests
and fore 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 cover all statutorily recognised forests, whether designated as
reserved, protected or otherwise for the purpose of Section 2 (i) of the
Forest Conservation Act. The term "forest land", occurring in Section 2,
will not only include "forest" as understood in the dictionary sense, but
also any area recorded as forest in the Government record irrespective of
the ownership. This is how it has to be understood for the purpose of
Section 2 of the Act. The provisions enacted in the Forest Conservation

Page 14 of 61
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
and ors. versus State of Gujarat and ors. (1987 (1) SCC 213), Rural
Litigation and Entitlement Kendra versus State of U.P. (1989 Suppl. (1)
SCC 504), and recently in the order dated 29-11-1996 in W.P.(C)
No.749/95 (Supreme Court Monitoring Committee vs. Mussorie
Dehradun Development Authority and ors., 1997 (11) SCC 605). The
earlier decision of this Court in State of Bihar Vs. Banshi Ram Modi and
ors. (1985 (3) SCC 643) has, therefore, to be understood in the light of
these subsequent decisions. We consider it necessary to reiterate this
settled position emerging from the decisions of this court to dispel the
doubt, if any, in the perception of any State Government or authority. This
has become necessary also because of the stand taken on behalf of the
State of Rajasthan, even at this late stage, relating to permissions granted
for mining in such area which is clearly contrary to the decisions of this
court. It is reasonable to assume that any State Government which has
failed to appreciate the correct position in law so far, will forthwith
correct its stance and take the necessary remedial measures without any
further delay.
5. We further direct as under:
I. GENERAL
1. In view of the meaning of the word "forest" in the
Act, it is obvious that prior approval of the Central Government
is required for any non-forest activity within the area of any
"forest". In accordance with Section 2 of the Act, all on-going
activity within any forest in any State throughout the country,
without the prior approval of the Central Government, must
cease forthwith. It is, therefore, clear that the running of saw
mills of any kind including veneer or plywood mills, and mining
of any mineral are nonforest purposes and are, therefore, not
permissible without prior approval of the Central Government.
Accordingly, any such activity is prima facie violation of the
provisions of the Forest Conservation Act, 1980. Every State
Government must promptly ensure total cessation of all such
activities forthwith.

Page 15 of 61
2. In addition to the above, in the tropical wet ever- green
forests of Tirap and Changlang in the State of Arunachal Pradesh,
there would be a complete ban on felling of any kind of trees
therein because of their particular significance to maintain
ecological balance needed to preserve bio-diversity. All saw mills,
veneer mills and plywood mills in Tirap and Changlang in
Arunachal Pradesh and within a distance of 100 Kms. from its
border, in Assam, should also be closed immediately. The State
Governments of Arunachal Pradesh and Assam must ensure
compliance of this direction.
3. The felling of trees in all forests is to remain suspended
except in accordance with the Working Plans of the State
Governments, as approved by the Central Government. In the
absence of any Working Plan in any particular State, such as
Arunachal Pradesh, where the permit system exists, the felling
under the permits can be done only by the Forest Department of
the State Government or the State Forest Corporation.
4. There shall be a complete ban on the movement of cut
trees and timber from any of the seven NorthEastern States to any
other State of the country either by rail, road or water-ways. The
Indian Railways and the State Governments are directed to take all
measures necessary to ensure strict compliance of this direction.
This ban will not apply to the movement of certified timber
required for defence or other Government purpose. This ban will
also not affect felling in any private plantation comprising of trees
planted in any area which is not a forest.
5. Each State Government should constitute within one
month an Expert Committee to:
(i) Identify areas which are "forests", irrespective of
whether they are so notified, recognised or classified
under any law, and irrespective of the ownership of the
land of such forest;
(ii) identify areas which were earlier forests but stand
degraded, denuded or cleared; and
(iii) identify areas covered by plantation trees
belonging to the Government and those belonging to
private persons.

Page 16 of 61
6. Each State Government should within two months, file
a report regarding:
(i) the number of saw mills, veneer and plywood mills actually
operating within the State, with particulars of their real ownership;
(ii) the licensed and actual capacity of these mills for stock and
sawing; (iii) their proximity to the nearest forest; (iv) their source
of timber.
7. Each State Government should constitute within one
month, an Expert Committee to assess:
(i) the sustainable capacity of the forests of the State qua saw
mills and timber based industry;
(ii) the number of existing saw mills which can safely be
sustained in the State;
(iii) the optimum distance from the forest, qua that State, at
which the saw mill should be located.
8. The Expert Committees so constituted should be requested
to give its report within one month of being constituted.
9. Each State Government would constitute a Committee
comprising of the Principal Chief Conservator of Forests and
another Senior Officer to oversee the compliance of this order and
file status reports.”
4. Samatha and others v. State of A.P. and others, 1997 (8) SCC 191 (3
judges) 11.07.1997 at SCC p. 272 at paras 120-121 (K. Ramaswamy J.), p. 301
at para 194 and p. 326 at para 228: “120. The words 'forest' or 'forest land' have
not been defined in the A.P. Act or the Central Forest Act. In Collins English
Dictionary (1979 Edn.) the word 'forest' has been defined at page 568 as "a large
wooded area having a thick growth of trees and plants, the trees of such an area,
something resembling a large wooded area especially in density". The Shorter
Oxford English Dictionary defines 'forest' as "an extensive tract of land covered
with trees and undergrowth, sometimes intermingled with pasture". In Webster's
Comprehensive Dictionary (International Edn.) at page 495, ‘forest’ has been
defined as "a large tract of land covered with a natural growth of trees and
underbrush, in English Law wild land generally belonging to the crown and kept
for the protection of game; Of, pertaining to, or inhabiting woods or forest; To
overspread or plant with trees; make a forest of". The ‘forest cover’ means "the
sum total of vegetation in a forest; more especially, herbs, shrubs and the litter of
leaves, branches". 'Forest reserve' for the different manners 'a tract of forest land
set aside by Government order for protection and cultivation". According to

Page 17 of 61
Stroud's Judicial Dictionary (fifth ed.). Vol. 2. at page 1014 'forest' means "a
place privileged by royal authority or by prescription for the peaceable abiding
and nourishment of the beasts or birds of the forest, for resort of the king; a
subject may hold a forest by grant from the Crown: by the grant of a forest in a
man's own ground, not only the privilege but the land itself passes; within the
bounds and within the regard". Black's Law Dictionary (6th Edn.) defines 'forest'
at page 649 as 'a tract of land covered with trees and one usually of considerable
extent’.
Chambers's Twentieth Century Dictionary defines the expression forest at page
415 as 'a large uncultivated tract of land covered with trees and underwood:
woody ground and rude pasture".
121. It would thus be seen that 'forest' bears extended meaning of a tract of land
covered with trees, shrubs, vegetation and undergrowth intermingled with trees
with pastures, be it of natural growth or man-made forestation. The FC Act, as
amended by 1988 Act was enacted to check deforestation and conservation of
forest. Sub-section (2) with a non obstante clause on deforestation of forest or
use of forest land for non-forest purposes; regulates the forest and provides that
notwithstanding any other law for the time being in force in the State, no State
Government or other authority shall make, except with prior approval of the
Central Government, (i) any order directing that any reserved forest or any
portion thereof shall cease to be a reserved forest, (ii) that any forest land or
portion thereof may be used for any non-forest purpose; (iii) that any forest land
or any portion thereof may be assigned, by way of lease or otherwise, to any
private person or to any authority or corporation, agency or any other
organisation, not owned, managed or controlled by the Government, (iv) that any
forest land or any portion thereof may be cleared or trees which have grown
natural in the land or portion for the purpose of using it for reforestation. Clauses
(iii) and (iv) were added by Amendment Act 69 of 1988 w.e.f. 1912-1988. The
explanation thereto of non-forest purpose was defined to mean the breaking up
or dealing of any forest land or portion thereof for the cultivation of…. but does
not include any work relating to ancillary to conservation development and
management of forest and wildlife, namely, establishment of check-posts, fire
lines ... or other like purposes. Section 2, therefore, prohibits dereservation of the
forest or use of any forest land for any non-forest purpose or assignment by way
of lease or otherwise of any portion of land to any private person other than
Government controlled or owned, organised or managed by the State
Government agency; it prohibits clearance of trees or natural growth in the forest
land or any portion thereof to use it for reforestation, except for preservation.

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Breaking up or clearance of forest land or a portion thereof is amplified to be of
non-forest purpose. The object of the F.C. Act is to prevent any further
deforestation which causes ecological imbalance and leads to environmental
degradation. It is, therefore, necessary for the State Government to obtain prior
permission of the Central Government for (1) de-reservation of forest; and (2)
the use of forest land for non-forest purpose. The prior approval of the Central
Government, therefore, is a condition precedent for such permission. The State
Governments are enjoined by FC Act, with power coupled with duty, to obtain
prior approval of the Central Government. The leases/renewal of leases otherwise
are good. xxxx
194. . (Saghir Ahmad J. at SCC p. 301) I am short of time as Brother
Ramaswamy is retiring tomorrow. It is not possible for me to write out in detail
on other points involved in the case. Since I am agreeing with Brother
Ramaswamy on the findings recorded by him on other issues involved in the case,
specially those relating to forests and Conservation of Forests Act and the
environmental questions, I conclude by saying that I am in respectful agreement
with him. 1 also agree, with the ultimate directions issued in the Judgment.
Xxxx
228. (Patnaik J. at SCC p. 326) Dr. Dhawan, the learned Counsel contended
that in view of the aforesaid provision no lease could be granted or renewed after
19.12.1988 in favour of any authority without the prior approval of the Central
Government. Consequently the impugned leases must be held to be invalid as
having contravened the provisions of Section 2 of the Conservation Act. The
High Court in the impugned judgment, however, proceeded on the basis that the
Conservation Act is applicable only to the reserved forests and does not apply to
any other category of forests. Bearing in mind the objects sought to be achieved
by the Conservation Act, we see no justification to give a restrictive meaning to
the expression 'forest land' used in Section 2 of the Conservation Act. On the
other hand the expression 'forest land' should be given an extended meaning to
cover a track of land covered with trees, shrubs, vegetation and undergrowth
under mingled with trees with pastures, be it of natural growth or man made
forestation. This Court in the case of Supreme Court Monitoring Committee v.
Mussoorie Dehradun Dev. Aty. and Ors. in Writ Petition (Civil) No. 749 of 1995
has held "that the term 'forest land' has not been defined under the Indian Forest
Act, 1927 or the 1980 Act and, therefore, have to be understood as including an
extensive track of land covered with trees and undergrowth sometimes
intermingled with pasture, i.e. it will have to be understood in the broad
dictionary sense. So understood any area which the State considers to be forest

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and is governed under that law will also be subject to Section 2(ii) of the 1980
Act". Viewed in this light, any land which the State of U.P. by Notification
declares to be a forest would be governed under Section 2(ii) of the 1980 Act. In
T.N. Godavaraman Thirumulkpad v. Union of India and Ors. in Writ
Petition (Civil) No. 202 of 1995, the question relating to protection and
conservation of the forests throughout the country was considered by this Court,
the Court observed : "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
forest and for matters connected therewith, must apply to all forests irrespective
of the nature of ownership or classification thereof. The word ‘forest’ must be
understood according to its dictionary meaning. This description covers all
statutorily recognised forests, whether designated as reserved, protected or
otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The
term 'forest land', occurring in Section 2, will not only include 'forest' as
understood in the dictionary sense, but also any area recorded as forest in the
Government record irrespective of the ownership. This is how it has to be
understood for the purpose of Section 2 of the Act. The provisions enacted in the
Forest Conservation Act, 1980 for the conservation of forests and the matters
connected therewith must apply clearly to all forests so understood irrespective
of the ownership or classification thereof." The Court also in the aforesaid case
gave a general direction to the following effect:
"In view of the meaning of the word 'forest' in the Act, it is obvious that
prior approval of the Central Government is required for any non-forest
activity within the area of any 'forest'. In accordance with Section 2 of the
Act all on-going activity within any forest in any State throughout the
country, without the prior approval of the Central Government, must
cease forthwith. It is, therefore, clear that the running of saw mills of any
kind including veneer or plywood mills, and mining of any mineral are
nonforest purposes and are, therefore, not permissible without prior
approval of the central Government. Accordingly, any such activity is
prima facie violation of the provisions of the Forest Conservation Act,
1980. Every State Government must promptly ensure total cessation of
all such activities forthwith."
In the case of Divisional Forest Officer and Ors. v. S. Nageswaramma
1996 (6) SCC 442, this Court has held that renewal of any mining lease
could be done only in accordance with the law prevailing on the date of
renewal and, therefore, if any renewal of mining lease has been done in

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violation of Section 2 of the Forest Conservation Act, inasmuch as no
prior approval of the Central Government has been obtained, then such
renewal is invalid and inoperative.”
5. M.C. Mehta vs Union Of India & Others, 2004 (12) SCC 118 (2 judges)
18.03.2004 at SCC p. 172 para 58 and SCC p.181 para 82:
“58. The Aravallis, most distinctive and ancient mountain chain of peninsular
India, mark the site of one of the oldest geological formations in the world.
Heavily eroded and with exposed outcrops of the slate rock and granite, it has
summits reaching 4950 feet above sea level. Due to its geological location,
the Aravalli range harbours a mix of Saharan, Ethiopian, peninsular, oriental
and even Malayan elements of flora and fauna. In the early part of this
century, the Aravallis were well wooded. There were dense forests, with
waterfalls and one could encounter a large number of wild animals. Today,
the changes in the environment at Aravalli are severe. Though one finds a
number of tree species in the hills, timber quality trees have almost
disappeared. Despite the increase of population resulting in increase of
demand from the forest, it cannot be questioned nor has it been questioned
that to save the ecology of the Aravalli mountain, the laws have to be strictly
implemented. The notification dated 7-5-1992 was passed with a view to
strictly implement the measures to protect the ecology of the Aravalli range.
The notification was followed more in its breach.
Xxxx
82. In the instant case, it is not necessary to decide the legal effect of issue of
the notification under Section 4 and/or 5 of the Act. Not only in their record
the area has been shown as forest but the affidavits have been filed in this
Court stating the area to be 'forest'. In T.N. Godavarman Thirumulkpad v.
Union of India and Ors., 1997 (2) SCC 267 this Court hold that the term
'forest' is to be understood in the dictionary sense and also that any area
regarded as a forest in Government record irrespective of ownership would
be a forest. The State of Haryana, besides having filed affidavits in the forest
matters treating such areas as forest for the purposes of the FC Act has been
seeking prior approval from the Central Government for diversion of such
land for non-forestry purpose. Reference in this connection may also be made
to the affidavit dated 8-12-1996 filed by Banarsi Das, Principal Chief
Conservator of Forest, Chandigarh, Haryana in Civil Writ No. 171 of 1996
Environmental Awareness Forum v. State of Jammu and Kashmir and Ors.
Our attention has also been drawn to letter dated 26-11- 2002 addressed by
Divisional, Forest Officer, Faridabad to Mining Officer, Faridabad

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forwarding to him a list of blocked forest areas of Faridabad district and
requesting him to ensure that the said forest areas are not affected by any
mining operations as also to a letter dated 17-9-2001 sent by Principal Chief
Conservator of Forest, Haryana (Panchkula) to Director of Environment,
Haryana stating therein that no mining activity can be permitted in the area.
On the facts and circumstances of the case, we cannot permit the State
Government to take a compete somersault in these proceedings and contend
that the earlier stand that the area is 'forest was under some erroneous
impressions. In the present case, for the purposes of the FC Act, these areas
shall be treated as forest and for use of it for non-forestry purpose, it would
be necessary to comply with the provisions of the FC Act.”
6. M.C. Mehta vs Union Of India & Others, 2009 (6) SCC 142 (3 judges)
08.05.2009:
“2. In this connection, at the very outset, we quote paras 89 and 96(6) of the said
judgment, which read as follows: (SCC pp. 183-184)
“89. It may be reiterated that if, despite stringent conditions, the
degradation of environment continues and reaches a stage of no-
return, this Court may have to consider, at a later date, the closure of
mining activity in areas where there is such a risk.
96. (6) The Aravalli hill range has to be protected at any cost. In case
despite stringent conditions, there is an adverse irreversible effect on
the ecology in the Aravalli hill range area, at a later date, the total
stoppage of mining activity in the area may have to be considered. For
similar reasons such step may have to be considered in respect of
mining in Faridabad district as well.”
History of the relevant Orders passed by this Court
3. (i) On 6-5-2002 (2004 (12) SCC 188 the following Order was passed: (at
SCC p. 188 para 2)
“IA No. 1785
2. Issue notice. Mr Bharat Singh accepts. Reply be filed within four
weeks. Rejoinder be filed within four weeks thereafter. In the meantime,
within 48 hours from today the Chief Secretary, Government of Haryana is
directed to stop all mining activities and pumping of groundwater in and from
an area up to 5 km from the Delhi-Haryana border in the Haryana side of the
ridge and also in the Aravalli hills.”
(emphasis supplied)
(ii) On 29/30.10.2002 (2008 (16) SCC 337) the following Order was passed:

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“Illegal mining in Aravallis
...We, prohibit and ban all mining activity in the entire Aravalli hills. This
ban is not limited only to the hills encircling Kote and Alampur villages but
extends to the entire hill range of Aravalli from Dholpur to Rajasthan. The
Chief Secretary, State of Haryana and Chief Secretary, State of Rajasthan are
directed to ensure that no mining activity in the Aravalli hills is carried out,
especially, in that part which has been regarded as forest area or protected
under the Environment (Protection) Act.
(emphasis supplied)
(iii) On 31.10.2002 (2004 (12) SCC 185) the following Order was passed:
(SCC p. 186 paras 3-8)
“IA No. 1785 in IA No. 22 and in WP No. 4677 of 1985, all IAs and WPs on
board
3. It is represented that applications have been filed with regard to
environment impact assessment, and for approval of plans with regard to
the mining activity which was proposed by the applicants/leaseholders.
The said applications have to be dealt with in terms of the notification
dated 27-1-1994 of the Ministry of Environment and Forests. The said
notification relates to environment impact assessment of development
projects. It appears that environment clearance has not been obtained and
the learned Counsel submit that the applicants/leaseholders cannot be
faulted for this.
4. It is quite obvious that on the principle of sustainable
development, no mining activity can be carried out without remedial
measures taking place. For this purpose, it is necessary that environment
impact assessment is done and the applications dealt with before any
mining activity can be permitted.
5. Counsel will give on the next date of hearing list of applications
which were filed, so that the Ministry of Environment can be put to notice
and be required to deal with those applications and to dispose of them
within a period to be specified by this Court.
6. Liberty to file additional affidavits given.
7. The State of Haryana will also explain on the next date of hearing
as to whether royalty payable to the villages has been given or not.
8. To come up on 25.11.2002. (2004 (12) SCC 186) (iv) On
16.12.2002 (2008 (16) SCC 401) the following Order was passed:

Page 23 of 61
“IAs 828, 833, 834-835, 837-838, 839, 840, 846 & 847
One of the aforesaid applications has been filed by the State of Rajasthan
seeking modification or clarification to the effect that the order dated 29/30th
October 2002 would be applicable only to illegal mines in the Aravalli hills.
IA 840 has been filed by M/s. Gurgaon Sohna Mineral and Anr. seeking
similar relief. Applications have also been filed by State of Haryana and other
parties.
We have heard learned Counsel. On 29th/30th October, 2002 (2008 (18)
SCC 337) this Court prohibited and banned the mining activities in the entire
Aravalli hills. This ban, it was directed, is not limited only to the hills
encircling Kote and Alampur villages but extends to the entire hill range of
Aravalli from Haryana to Rajasthan. The Chief Secretary, State of Haryana
and State of Rajasthan were directed to ensure that no mining activity in the
Aravalli hills is carried out, especially in that part which has been regarded as
Forest Area or protected under the Environment (Protection) Act.
On consideration of the report of Central Empowered Committee dated
December 14, 2002, we issue the following further directions:
(1) Mining may be permitted in Forest Areas where specific prior approval
under Section 2 of the Forest (Conservation) Act, 1980 has been accorded by
the Ministry of Environment and Forest, Government of India. However, in
view of this Court's order dated 14.2.2000 passed in I.A. No. 548 no mining
activity is permitted within areas which are notified as Sanctuary, National
Park under Sections 18, 35 of the Wild Life (Protection) Act, 1972 or any
Sanctuary, National Part or Game Reserve declared under any other Act or
Rules made thereunder even if prior approval have been obtained from the
MOEF under the F.C. Act in such an area.
(2) Under Notification dated 29th November, 1999 issued under Section 23
of the Environment (Protection) Act for certain Districts including Gurgaon
District in the State of Haryana, the Ministry has delegated power to grant
approval for mining purposes to the State. The mining activities are being
regulated under the Notification dated 7th May, 1992 issued by the Ministry
of Environment and Forest (Annexure A-1 in IA No. 833). We direct that, for
the time being, no mining shall be permitted within the areas of Gurgaon
District in the State of Haryana where mining is regulated under the
Notification dated 7.5.1992 issued under Section 3 of the Environment
(Protection) Act, pursuant to permission granted after 29 November, 1999.
Meanwhile, the Central Empowered Committee which is examining the
matter will give its suggestions within a period of six weeks. On the receipt

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of those suggestions, the prayers made by the applicants for modification of
the order dated 29/30.10.2002 insofar as the Gurgaon District is concerned
will be considered.
(3)No mining activity would be permitted in respect of areas where there is
a dispute of applicability of F.C. Act, till such time the dispute is resolved or
approval under the FC Act is accorded, in addition to order already passed in
Writ Petition No.
4677/1985.
For the present, no mining will be permitted in the areas for which notification
under Sections 4 and 5 of the Punjab Land Preservation Act 1900 have been
issued for regulating the breaking up of the land etc. and such lands are or
were recorded as "Forest" in Government records even if the notification
period has expired, unless there is approval under the FC Act. Learned
Attorney General and Solicitor General will assist the Court on the aforesaid
aspects on the next date of hearing. In respect of suggestion 7 and 8, the
Union of India will respond on the next date of hearing.
The order dated 29/30th October, prohibiting and banning the mining
activity in Aravalli hills from Haryana to Rajasthan is modified insofar as the
State of Rajasthan is concerned to the following effect:
Wherever requisite approval/sanctions in the said State have been obtained
under FC Act and EP Act, and the mining is not prohibited under the
applicable Acts or notifications or orders of the Court, mining can continue
and to such mining the order aforesaid will not apply.
This order will be applicable to non-forest land covered for the period prior
to the date of modification of the order dated 29th November 1999 in the State
of Haryana.
This variation will not apply to the area in the Alampur District in the State
of Haryana.
List the matter on 7th February, 2003 at 2 O'Clock.
(emphasis supplied)
I. Reasons behind Order dated 29/30.10.2002 (2008 (18) SCC 337)
imposing total ban:
4. The question to be answered at the outset is why did this Court impose a
complete ban on mining in the Aravalli range falling in the State of Haryana
which broadly falls in District Gurgaon and District Faridabad including
Mewat?
5. The statistical data placed before this Court indicated that, in October,
2002, twenty six mines were inspected which indicated wide scale non-

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compliance of statutory Rules and Regulations applicable to mines. Broadly
stated, most of these mines failed to obtain environmental clearances. Most
of these mines failed to submit environmental management plan. In some
cases, the status of mining indicated below groundwater table. Mining pits
were turned into huge groundwater lakes. No efforts were made to create
plantation. Broadly, these were silica sand mines. In some cases, even
groundwater stood extracted. Deep mining pits with large water bodies were
detected. Huge amounts of overburden were also seen in the area. These are
some of the defects which were highlighted by EPCA in various Reports as
far back as October, 2002. These non-compliances have also been highlighted
with the names of the mines meticulously in para 18 of the judgment in the
case of M.C. Mehta (2004 (12) SCC 118).
6. It is important to note that by Notification dated 7.5.1992 issued by MoEF
under Section 3(2)(v) of the Environment (Protection) Act, 1986 ("EP Act"
for short), as amended, all new mining operations including renewal leases
stood banned. The Notification further laid down the procedure for taking
prior permission before undertaking mining activity.
7. At this stage it may be noted that by Notification dated 27.1.1994 as
amended on 4.5.1994 issued by MoEF under Section 3(2) of the EP Act, 1986
read with Rule 6, Environment Impact Assessment ("EIA") before
commencement of any mining operation became mandatory. Therefore, by
Order dated 29/30.10.2002, when this Court found large scale mining without
Approved Plans, it decided to ban all mining activities in the Aravalli Range.
II. Fall out of the Order dated 29/30.10.2002: (2008 (18) SCC 337)
8. After Order dated 29/30.10.2002, I.As. were moved saying that
applications have been filed for EIA and for approval of plans and it is at this
stage that this Court ordered that no mining activity could be carried out
without remedial measures being taken and for that purpose, it was necessary
that EIA had to be done before any mining activity could be permitted. (see
2004 (12) SCC 118 at p.185 ).
9. At this stage, one event needs to be highlighted. The powers vested in the
Central Government in terms of Notification dated 7.5.1992 were delegated
to State Government concerned, namely, Rajasthan and Haryana, vide
Notification dated 29.11.1999. But the delegation in favour of the State stood
withdrawn when it was found that most of the mines in the State were
operating in violation of Approved Plans. In most cases, mining operations
were carried out unscientifically with the sole aim of maximizing profits
which resulted in indiscriminate scattering of the overburden, wasteful

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manner of mining with complete disregard to mineral conservation aspect,
rendering reclamation of mined area impossible. This Court further found that
mining leases were granted by the State in areas where plantations were
undertaken with the financial assistance provided by international donor
agencies. That, mining was permitted in a manner which was destroying the
groundwater table as also causing irreparable damage to the critical
groundwater reserves. That, there was no effective mechanism to ensure
compliance of various conditions stipulated while giving approvals and,
lastly, no deterrent action was taken against mines for serious violations and
noncompliance of conditions were found.”
7. In Re Construction of Park at NOIDA Near Okhla Bird Sanctuary v.
Union of India and Ors, 2011 (1) SCC 744 (3 judges) 03.12.2010 at SCC pp.
760-762 paras 29-35, SCC p. 778 para 78:
“29. In order dated 12-12-996 in Godavarman Thirumulkpad, 1997 (8) SCC
191, this Court held and observed as under: (SCC p.269-270, paras 3-4)
3. It has emerged at the hearing, that there is a misconception in certain
quarters about the true scope of the Forest Conservation Act, 1980 (for short
the 'Act') and the meaning of the word "forest" used therein. There is also a
resulting misconception about the need of prior approval of the Central
Government, as required by Section 2 of the Act, in respect of certain
activities in the forest area which are more often of a commercial nature. It
is necessary to clarify that position.
4. The Forest Conservation Act, 1980 was enacted with a view to check
further deforestation which ultimately results in ecological imbalance; and
therefore, the provisions made therein for the conservation of forests and for
matters connected therewith, must apply to all forests irrespective of the
nature of ownership or classification thereof. The word "forest: must be
understood according to its dictionary meaning. This description covers all
statutorily 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

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Works v. State of Gujarat, 1987 (1) SCC 213, Rural Litigation and
Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504 and recently
in the order dated 29.11.1996 (Supreme Court Monitoring Committee v.
Mussorie Dehradun Development Authority, 1997 (11) SCC 605). The
earlier decision of this Court in State of Bihar v. Banshi Ram Modi, 1985
(3) SCC 643 has, therefore, to be understood in the light of these subsequent
decisions. We consider it necessary to reiterate this settled position emerging
from the decisions of this Court to dispel the doubt, if any, in the perception
of any State Government or authority. This has become necessary also
because of the stand taken on behalf of the State of Rajasthan even at this
late stage, relating to permissions granted for mining in such area which is
clearly contrary to the decisions of this Court. It is reasonable to assume that
any State Government which has failed to appreciate the correct position in
law so far, will forthwith correct its stance and take the necessary remedial
measures without any further delay.
In the above order the Court mainly said three things: one, the provisions of
the FC Act must apply to all forests irrespective of the nature of ownership
or classification of the forest; two, the word "forest" must be understood
according to its dictionary meaning and three, 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.
30. The order dated December 12, 1996 indeed gives a very wide
definition of "forest". But any definition howsoever wide relates to a
context. There can hardly be a legal definition, in terms absolute, and totally
independent of the context. The context may or may not find any articulation
in the judgment or the order but it is always there and it is discernible by a
careful analysis of the facts and circumstances in which the definition was
rendered. In the order the Court said: (SCC p.270, para 4)
"4. ...The term 'forest land occurring in Section 2, will not only include 'forest'
as understood in the dictionary sense, but also an area recorded as forest in
the Government record irrespective of the ownership (emphasis added). Now
what is meant by that is made clear by referring to the earlier decision of the
court in State of Bihar v. Banshi Ram Modi 1985 (3) SCC 643."
31. In the earlier decision in Banshi Ram Modi, 1985 (3) SCC 643 the
Court had said: (SCC p.647, para 10)
"10. ...Reading them together, these two parts of the section mean that
after the commencement of the Act no fresh breaking up of the forest

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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 force of the Act and the forest land
is broken up or cleared then obviously the section cannot apply...."
32. The observation in Banshi Ram Modi (which again was made in
the peculiar context of that case!) was sought to be interpreted by some to
mean that once the land was broken in course of mining operations it ceased
to be forest land. It was in order to quell the mischief and the subversion of
Section 2 of the FC Act that the court in the order dated December 12, 1996
made the observation quoted above italics.
33. In Samatha, this Court was dealing with cases of grant of mining
leases to non tribals in reserved forests and forests that were notified as
scheduled area under the Andhra Pradesh Scheduled Areas Land Transfer
Regulation, 1959. It was contended on behalf of the lease holders that the
Regulation and the Mining Act do not prohibit grant of mining leases of
government land in the scheduled area to non-tribals. The Forest
(Conservation) Act or the Andhra Pradesh Forest Act, 1967, does not apply
to renewal of leases. The observations in regard to what constitutes a forest
made in paragraphs 119, 120, 121 and 123, relied upon by Mr. Bhushan,
was made when it was sought to be argued by the leaseholders that unless
the lands are declared either as reserved forests or forests under the Andhra
Pradesh Forest Act, 1967, the FC Act had no application. Hence, there was
no prohibition to grant mining lease or to renew it by the State government.
The context in which the Court expanded the definition of forest is, thus,
manifest and evident.
34. In M.C. Mehta v. Union of India and Ors. (2004) 12 SCC 118,
in the paragraphs relied upon by Mr. Bhushan, this Court was considering
the question of permitting mining in Aravalli Hills where large scale
afforestation was done by spending crores of rupees of foreign funding in
an effort to repair the deep ravages caused to the Aravalli Hills range over
the years by mostly illegal mining. The context is once again evident.
35. Almost all the orders and judgments of this Court defining"forest"
and "forest land" for the purpose of the FC Act were rendered in the context
of mining or illegal felling of trees for timber or illegal removal of other
forest produce or the protection of National Parks and wild life sanctuaries.
In the case in hand the context is completely different. Hence, the decisions
relied upon by Mr. Bhushan can be applied only to an extent and not in

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absolute terms. To an extent Mr. Bhushan is right in contending that a man
made forest may equally be a forest as a naturally grown one. He is also
right in contending that non forest land may also, with the passage of time,
change its character and become forest land. But this also cannot be a rule
of universal application and must be examined in the overall facts of the
case otherwise it would lead to highly anomalous conclusions. Like in this
case, Mr. Bhushan argued that the two conditions in the guidelines adopted
by the State Level Expert Committee, i.e., (i) "trees mean naturally grown
perennial trees" and (ii) "the plantation done on public land or private land
will not be identified as forest like area" were not consistent with the wide
definition of forest given in the December 12, 1996 order of the Court and
the project area should qualify as forest on the basis of the main parameter
fixed by the Committee. If the argument of Mr. Bhushan is accepted and the
criterion fixed by the State Level Expert Committee that in the plains a
stretch of land with an area of 2 hectares or above, with the minimum
density of 50 trees/hectare would be a deemed forest is applied mechanically
and with no regard to the other factors a greater part of Lutyens Delhi would
perhaps qualify as forest. This was obviously not the intent of the order
dated
December 12, 1996.
xxxx
78. (at SCC p. 778) It is made clear that the above directions are given in
the peculiar facts of this case and nothing said in the judgment shall form
precedent when the court is hearing the matter of the "buffer zones".”
8. Lafarge Uraniam Mining (P) Ltd. v. Union of India, 2011 (7) SCC 338 (3
judges) 06.07.2011 at SCC p. 381 para 122:
“Conclusion
122. Accordingly, we see no reason to interfere with the decision of MoEF
granting site clearance dated 18.6.1999, EIA clearance dated 9.8.2001 read
with revised environmental clearance dated 19.4.2010 and Stage-I forest
clearance dated 22.4.2010. Accordingly, I.A. No. 1868 of 2007 preferred by
M/s. Lafarge stands allowed with no order as to costs. Consequently, I.A. No.
2937 of 2010 preferred by SAC is dismissed. The interim order passed by this
Court on 5.2.2010 shall also stand vacated. All other I. As. shall stand
disposed of.
Part II - Guidelines to be followed in future cases
(i) As stated in our order hereinabove, the words "environment" and
"sustainable development" have various facets. At times in respect of a few

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of these facets data is not available. Care for environment is an ongoing
process. Time has come for this Court to declare and we hereby declare that
the National Forest Policy, 1988 which lays down far-reaching principles
must necessarily govern the grant of permissions under Section 2 of the Forest
(Conservation) Act, 1980 as the same provides the road map to ecological
protection and improvement under the Environment (Protection) Act, 1986.
The principles/ guidelines mentioned in the National Forest Policy, 1988
should be read as part of the provisions of the Environment (Protection) Act,
1986 read together with the Forest (Conservation) Act, 1980. This direction
is required to be given because there is no machinery even today established
for implementation of the said National Forest Policy, 1988 read with the
Forest (Conservation) Act, 1980. Section 3 of the Environment (Protection)
Act, 1986 confers a power coupled with duty and, thus, it is incumbent on the
Central Government, as hereinafter indicated, to appoint an Appropriate
Authority, preferably in the form of Regulator, at the State and at the Centre
level for ensuring implementation of the National Forest Policy, 1988. The
difference between a regulator and a court must be kept in mind. The court /
tribunal is basically an authority which reacts to a given situation brought to
its notice whereas a regulator is a pro-active body with the power conferred
upon it to frame statutory Rules and Regulations. The Regulatory mechanism
warrants open discussion, public participation, circulation of the Draft Paper
inviting suggestions. The basic objectives of the National Forest Policy, 1988
include positive and pro-active steps to be taken. These include maintenance
of environmental stability through preservation, restoration of ecological
balance that has been adversely disturbed by serious depletion of forest,
conservation of natural heritage of the country by preserving the remaining
natural forests with the vast variety of flora and fauna, checking soil erosion
and denudation in the catchment areas, checking the extension of sand-dunes,
increasing the forest/ tree cover in the country and encouraging efficient
utilization of forest produce and maximizing substitution of wood. Thus, we
are of the view that under Section 3(3) of the Environment (Protection) Act,
1986, the Central Government should appoint a National Regulator for
appraising projects, enforcing environmental conditions for approvals and to
impose penalties on polluters. There is one more reason for having a
regulatory mechanism in place. Identification of an area as forest area is
solely based on the Declaration to be filed by the User Agency (project
proponent). The project proponent under the existing dispensation is required
to undertake EIA by an expert body/ institution. In many cases, the court is

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not made aware of the terms of reference. In several cases, the court is not
made aware of the study area undertaken by the expert body. Consequently,
the MoEF/ State Government acts on the report (Rapid EIA) undertaken by
the Institutions who though accredited submit answers according to the Terms
of Reference propounded by the project proponent. We do not wish to cast
any doubt on the credibility of these Institutions. However, at times the court
is faced with conflicting reports. Similarly, the government is also faced with
a fait accompli kind situation which in the ultimate analysis leads to grant of
ex facto clearance. To obviate these difficulties, we are of the view that a
regulatory mechanism should be put in place and till the time such mechanism
is put in place, the MoEF should prepare a Panel of Accredited Institutions
from which alone the project proponent should obtain the Rapid EIA and that
too on the Terms of Reference to be formulated by the MoEF.
(ii)In all future cases, the User Agency (project proponents) shall comply
with the Office Memorandum dated 26.4.2011 issued by the MoEF which
requires that all mining projects involving forests and for such non-mining
projects which involve more than 40 hectares of forests, the project proponent
shall submit the documents which have been enumerated in the said
Memorandum.
(iii) If the project proponent makes a claim regarding status of the land
being non-forest and if there is any doubt the site shall be inspected by the
State Forest Department along with the Regional Office of MoEF to ascertain
the status of forests, based on which the certificate in this regard be issued. In
all such cases, it would be desirable for the representative of State Forest
Department to assess the Expert Appraisal Committee.
(iv) At present, there are six regional offices in the country. This may
be expanded to at least ten. At each regional office there may be a Standing
Site Inspection Committee which will take up the work of ascertaining the
position of the land (namely whether it is forest land or not). In each
Committee there may be one nonofficial member who is an expert in forestry.
If it is found that forest land is involved, then forest clearance will have to be
applied for first.
(v) Increase in the number of Regional Offices of the Ministry from six
presently located at Shillong, Bhubaneswar, Lucknow, Chandigarh, Bhopal
and Bangalore to at least ten by opening at least four new Regional Offices at
the locations to be decided in consultation with the State/UT Governments to
facilitate more frequent inspections and in-depth scrutiny and appraisal of the
proposals.

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(vi) Constitution of Regional Empowered Committee, under the
Chairmanship of the concerned Chief Conservator of Forests (Central) and
having Conservator of Forests (Central) and three non-official members to be
selected from the eminent experts in forestry and allied disciplines as its
members, at each of the Regional Offices of the MoEF, to facilitate
detailed/in-depth scrutiny of the proposals involving diversion of forest area
more than 5 hectares and up to 40 hectares and all proposals relating to mining
and encroachments up to 40 hectares.
(vii) Creation and regular updating of a GIS based decision support
database, tentatively containing inter-alia the districtwise details of the
location and boundary of (i) each plot of land that may be defined as forest
for the purpose of the Forest (Conservation) Act, 1980; (ii) the core, buffer
and eco-sensitive zone of the protected areas constituted as per the provisions
of the Wildlife (Protection) Act, 1972; (iii) the important migratory corridors
for wildlife; and (iv) the forest land diverted for nonforest purpose in the past
in the district. The Survey of India top sheets in digital format, the forest cover
maps prepared by the Forest Survey of India in preparation of the successive
State of Forest Reports and the conditions stipulated in the approvals
accorded under the Forest (Conservations) Act, 1980 for each case of
diversion of forest land in the district will also be part of the proposed decision
support database.
(viii) Orders to implement these may, after getting necessary approvals,
be issued expeditiously.
(ix) The Office Memorandum dated 26.4.2011 is in continuation of an
earlier Office Memorandum dated 31.03.2011. This earlier O.M. clearly
delineates the order of priority required to be followed while seeking
Environmental Clearance under the
Environment Impact Assessment Notification 2006. It provides that in cases
where environmental clearance is required for a project on forest land, the
forest clearance shall be obtained before the grant of the environment
clearance.
(x)In addition to the above, an Office Memorandum dated 26.04.2011 on
Corporate Environmental Responsibility has also been issued by the MoEF.
This O.M. lays down the need for PS Us and other Corporate entities to evolve
a Corporate Environment Policy of their own to ensure greater compliance
with the environmental and forestry clearance granted to them.
(xi)All minutes of proceedings before the Forest Advisory Committee in
respect of the Forest (Conservation) Act, 1980 as well as the minutes of

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proceedings of the Expert Appraisal Committee in respect of the Environment
(Protection) Act, 1986 are regularly uploaded on the Ministry's website even
before the final approval/decision of the Ministry for Environment and
Forests is obtained. This has been done to ensure public accountability. This
also includes environmental clearances given under the EIA Notification of
2006 issued under the Environment
(Protection) Act, 1986. Henceforth, in addition to the above, all forest
clearances given under the Forest (Conservation) Act, 1980 may now be
uploaded on the Ministry's website.
(xii) Completion of the exercise undertaken by each State/UT Govt. in
compliance of this Court's order dated 12.12.1996 wherein inter-alia each
State/UT Government was directed to constitute an Expert Committee to
identify the areas which are "forests" irrespective of whether they are so
notified, recognized or classified under any law, and irrespective of the land
of such "forest" and the areas which were earlier "forests" but stand degraded,
denuded and cleared, culminating in preparation of Geo-referenced district
forest-maps containing the details of the location and boundary of each plot
of land that may be defined as "forest" for the purpose of the Forest
(Conservation) Act, 1980.
(xiii) Incorporating appropriate safeguards in the Environment
Clearance process to eliminate chance of the grant of Environment Clearance
to projects involving diversion of forest land by considering such forest land
as non-forest, a flow chart depicting, the tentative nature and manner of
incorporating the proposed safeguards, to be finalized after consultation with
the State/ UT Governments.
(xiv) The public consultation or public hearing as it is commonly
known, is a mandatory requirement of the environment clearance process and
provides an effective forum for any person aggrieved by any aspect of any
project to register and seek redressal of his/her grievances;
(xv) The MoEF will prepare a comprehensive policy for inspection,
verification and monitoring and the overall procedure relating to the grant of
forest clearances and identification of forests in consultation with the States
(given that forests fall under entry 17A of the Concurrent List).”
9. M.C. Mehta vs Union Of India & Others, [2008] 8 S.C.R. 828, 2008 (17)
SCC 294 (3 judges) 14.05.2008 at SCC p.296 at paras 1-2, at SCC p.297-298 at
para 8, at SCC p.301-302 at paras 1113 it was held:
“1.......It was indicated that these areas have been declared by this Court to be
"forest" and, therefore, penal action is required to be taken for any non forest

Page 34 of 61
activities under the Forest Conservation Act, 1980 (in short the `Conservation
Act'). This communication was issued purportedly on the basis of this Court's
order.
2. Similar communication was made by the Senior Town Planner, Gurgaon
Circle, Gurgaon intimating Dr. Mathan Singh Kanwar that he has to obtain
"NOC" from the forest department and produce the same before the Senior
Town Planner so that the next course of action with regard to granting
occupation certificate can be carried out. Reference has also been made to a
letter dated 19.9.1999 by the Commissioner and Secretary to Government,
Haryana Forest and Wildlife Department addressed to the Principal Chief
Conservator, Forest Conservation, Haryana on the subject of prohibition in
the areas covered under the Notification issued under the Act. It has been
indicated therein that the Forest Department will not declare areas notified,
under Sections 4 & 5 of the Act as "forest".
xxxxx
8. It is to be noted that earlier the focus was on areas and not on khasra
numbers. The stand of the applicants regarding pre 21-121992 has been dealt
with in paras 80 and 81 of the earlier judgment. The decision of this Court in
M.C. Mehta's case (supra) dealt with the applicability of the Conservation Act
to the areas treated as forest by the State Forest Department in Paragraphs 78
,79, 80, 81 and 82. It was inter alia observed as follows: (SCC pp.180-182
paras 78-82)
"78. The provisions of the Act provide for the conservation of forest and for
matters connected therewith or ancillary or incidental thereto. Any forest land
or portion thereof cannot be used for any non-forest purposes or assigned by
way of leases or otherwise to any private person or to any authority,
corporation, agency or any other organisation not owned, managed or
controlled by the Government, except with the prior approval of the Central
Government.
xxxxx
82. In the instant case, it is not necessary to decide the legal effect of issue of
the notification under Sections 4 and/or 5 of the Act. Not only in their record
has the area been shown as forest but affidavits have been filed in this Court
stating the area to be "forest". In T.N. Godavarman Thirumulkpad v. Union
of India (1997 (2) SCC 267) this Court held that the term "forest" is to be
understood in the dictionary sense and also that any area regarded as a forest
in government records, irrespective of ownership, would be a forest. The State
of Haryana, besides having filed affidavits in the forest matters treating such

Page 35 of 61
areas as forest for the purposes of the FC Act has been seeking prior approval
from the Central Government for diversion of such land for non-forestry
purpose. Reference in this connection may also be made to the affidavit dated
8-12-1996 filed by Banarsi Das, Principal Chief Conservator of Forests,
Chandigarh, Haryana in Environmental Awareness Forum v. State of J&K
(Civil Writ No. 171 of 1996)......On the facts and circumstances of the case,
we cannot permit the State Government to take a complete somersault in these
proceedings and contend that the earlier stand that the area is forest was under
some erroneous impressions. In the present case, for the purposes of the FC
Act, these areas shall be treated as forest and for use of it for non-forestry
purpose, it would be necessary to comply with the provisions of the FC Act.
xxxxxx
11. Reference can be made to Sections 3, 4 and 5 of the Act. Section 3 inter-
alia provides that whenever the State Government with a view to conserve -
(a) sub-soil water; (b) erosion in any area; may make a notification for the
said purpose and Section 4 thereof provides as to what activities can be
prohibited. A perusal of Section 4 and 5 would show that what can be
prohibited is- (a) The clearing or breaking up of any area/land which was not
under cultivation;
(b) The quarrying of stone or burning of lime which was not so being
done earlier;
(c) The cutting of trees or timber or collection or removal of any
forest produce except for bonafide domestic use;
(d) The setting on fire of trees, timber or forest produce;
(e) The admission, herding, retention or pasturing of animals;
(f) The examination of forest produce;
(g) The grant of permits to the inhabitants of the towns and villages
to take any tree or timber or forest produce for their own use or to pasture
sheep or camel or to cultivate or to make building etc.
12.In view of the notification under Section 4 when the clearing or breaking
up of the land is not permitted that itself is a bar from fresh construction
because a construction only can take place if clearing and breaking of an
area/land taking place. This prohibition is clearly contained in the notification
of 1992. The reliance placed by the applicants on Clause (g) is clearly
misconceived, inasmuch as the permissible activity allowed within Clause (g)
is in favour of inhabitants of town and villages within the limits or vicinity of
any such area. The admitted case is that the applicants herein have developed

Page 36 of 61
plots in the area in question and have sold it to persons who are not inhabitants
of towns and villages within such specified living area, but could be anybody
from all over the country or outside, and therefore Clause (g) in Section 4 has
no application. The factum of developing a plot and then construct therein
would amount to clearing or breaking up of an area or land.
13.The judgment in M.C. Mehta's case (2009 (17) SCC 541) notes the
argument, which is presently reiterated that the State Forest Department has
been treating and showing the areas notified under Sections 3, 4 and 5 as
forest. This Court noted this in para-82 of the judgment which has been
extracted above.”
5. That the MoEFCC it appears is bent upon destroying the ecology as may be seen
from recent loose comments (withdrawn later under adverse public criticism) of
a senior Minister on a technical report blaming heavy air pollution in Delhi for
causing reduction of life span from 2 to 6 years and from the recent (31 May
2016) dilution of Wetland Rules as it appears from the news report in the Indian
Express reproduced below:
“New conservation rules may soon apply to wetlands. What are they?
Draft Rules open for public comment until today propose to pass on most powers
on these crucial ecosystems to states.
The Indian Express, Kedar Nagarajan, Updated: May 31, 2016, 9:53
In March this year, the central government set the ball rolling on a new set of
rules intended to protect wetlands. The Draft Wetland (Conservation and
Management) Rules, 2016, which seek to replace the older Wetland
(Conservation and Management) Rules, 2010, are open for public comments until
today, May 31.
The new Rules have been proposed at a time when several petitions on the
implementation of the 2010 Rules are pending at the National Green Tribunal
(NGT). After it emerged that states were yet to notify wetlands under the 2010
Rules, the NGT directed them to do so in at least 5-10 districts in a time-bound
fashion.
One of the reasons cited for bringing in the new Rules has been ineffective
implementation of the 2010 Rules. The draft 2016 Rules seek to decentralise
wetlands management to states, with the Centre having a say only in “exceptional
cases” — a provision that could potentially weaken conservation efforts in these
eco-sensitive zones
Several organisations and legal experts have submitted their objections to the new
Rules, which they say have the potential to significantly dilute the protective

Page 37 of 61
framework for wetlands. Organisations such as the Bombay Natural History
Society, WWF India, Legal Initiative for Forests and Environment, International
Rivers, INTACH, Yamuna Jiye Abhiyan and South Asian Network on Dams
Rivers and People have sent representations to the Environment Ministry.
Ritwick Dutta, an environmental lawyer and member of the Legal Initiative for
Forests and Environment, said, “It makes very little sense to grant states, which
have so far not been adhering to the Rules that are already in place, all the power
to notify wetlands.”
Here is how the 2016 draft is different from the 2010 Rules.
Overseeing Body
2010 Rules: The Centre created the Central Wetland Regulatory Authority
(CWRA), headed by the Secretary, Ministry of Environment, and consisting of
bureaucrats and experts.
Draft Rules: Propose the removal of this body entirely, and its replacement by a
State Level Wetland Authority in each state. According to the draft Rules, the
power to identify and notify wetlands would be vested in the Chief Minister, who
as chief executive of the state government as well as of the state wetland
authority, will propose and notify wetlands after accepting or rejecting
recommendations. While transferring powers from the central to the state
authority, the draft has left out powers such as the one to periodically review the
list of wetlands and the activities prohibited in them, and the power to issue
“whatever directions (are) necessary for conservation, preservation and wise use
of wetlands”. The Rules simply ask the state authorities to take “necessary
directions for conservation and sustainable management of wetlands”.
Time-Bound Action
2010 Rules: Wetlands have to be notified within a year of the Rules coming into
force, and there are deadlines for each process along the way: 6 months for
identification and classification, 30 days to send it to a research institute for
reference and opinion, 90 days for the research institute to submit its opinion. The
rest of the time is available for fulfilling notification formalities, which pass
through the central authority.
Draft Rules: Do away with the time-bound process for notification.
Permitted Activities
2010 Rules: Activities prohibited in wetlands include reclamation, constructing
permanent structures within 50 m, setting up or expanding industries, throwing
waste, etc.

Page 38 of 61
Draft Rules: The entire list, apart from reclamation, has been deleted. Activities
that make “wise use” of wetlands have been permitted. The state authority is to
decide what does, and doesn’t, amount to “wise use”.
Restricted Activities
2010 Rules: 12 activities including fishing, boating, dredging, etc. are restricted
without prior permission from the state government.
Draft Rules: Do not address the issue of prior permission for any activity.
Terminology
2010 Rules: State that the Rules apply also to “areas rich in genetic diversity”
and “areas of outstanding natural beauty”, besides protected areas.
Draft Rules: Have removed those words.
Wetland complexes
2010 Rules: Include “wetland complexes”, which are a set of wetlands dependent
on each other.
Draft Rules: Have removed the provision for wetland complexes.
Environmental Impact
2010 Rules: An Environment Impact Assessment (EIA) is compulsory before
undertaking any activity in a wetland area.
Draft Rules: Make no mention of the need to conduct an EIA.
Size Specifications
2010 Rules: Cover all wetlands and wetland complexes larger than a specified
area — 5 hectares for high-altitude regions, 500 hectares elsewhere.
Draft Rules: Only those wetlands notified by the state government; no size
specified.
Citizens’ Check
2010 Rules: Allow a challenge to a decision taken by the CWRA before the
NGT.
Draft Rules: CWRA is gone; there is no mention of a person’s ability to
challenge the state authority’s decision.
Meaning: Wetlands
Wetland encompass a broad range of ecosystems characterised by bodies of water
like lakes, ponds, rivers or marshes, and their surrounding bio-networks. They
are breeding grounds for fish and fowl, they store and recharge groundwater, and
act as buffers against storms and floods. Wetlands are nature’s measures against
both droughts and floods, of which India has repeatedly been a victim.
Despite their vital importance to humans, across India, wetlands are seriously
threatened by reclamation and degradation through processes of drainage,
landfilling, discharge of domestic and industrial effluents, disposal of solid waste,

Page 39 of 61
and overexploitation of the natural resources that they offer. In its effort to save
and protect wetlands, the Ministry of Environment, Forest and Climate Change
has invoked Article 51A of the Constitution, which makes it a Fundamental Duty
of every citizen “to protect and improve the natural environment including
forests, lakes, rivers and wildlife”.
India is one of the 169 signatories to the Ramsar Convention on Wetlands, signed
in Ramsar, Iran, in 1971, an intergovernmental treaty that provides the framework
for national action and international cooperation for the conservation and wise
use of wetlands and their resources. There are 2,241 Ramsar sites across the
world, including 26 spread across India from Wular Lake in Jammu
and Kashmir to Ashtamudi Wetland in Kerala, and from Deepor Beel in Assam
to Nal Sarovar in Gujarat.”
6. That the Ministry of Mines in its Secret Note No.16/48/97-M.VI dated
10.07.2000 sought to sabotage or have set aside the well settled definition of
forest in India and it is now the turn of MoEFCC to try the same ill-informed
exercise all over again. That infamous note is reproduced in full as follows:
“ SECRET
GOVERNMENT OF INDIA MINISTRY OF MINES
No.16/48/97-M.VI
Dated the 10th July, 2000
Subject: Note for Committee of Secretaries regarding amendment of the
Fifth Schedule to the Constitution of India in the light of the Samatha
Judgement
Preamble
1. Mines and Minerals (Development & Regulation) Act 1957 (hereinafter
referred to as the Act) has been framed by the Central government under Entry 54
of the Union List, List-I of the Seventh Schedule to the Constitution. Mineral
concessions like prospecting licenses, mining leases are granted in accordance
with the provisions of the Act by the respective State Governments. The State
Governments can also make local amendments to the Act. Andhra Pradesh
Government had amended the Act on 7th August 1991 by inserting a new Section
11(5) to the Act which provides that no prospecting license or mining lease shall
be granted in the Scheduled areas of Andhra Pradesh to any person who is not a
member of the scheduled tribes. (As per the Act this restriction is not applicable
to a State or Central Government undertaking). Andhra Pradesh had also notified

Page 40 of 61
the Andhra Pradesh Scheduled Area Transfer Regulation, 1959 (hereinafter
referred to as the 1959 Regulations) to regulate the transfer of land in the
scheduled areas of Andhra Pradesh.
Background:
2. The Supreme Court in a majority decision dated 11.7.97 disposed of Civil
Appeal Nos.4601 and 4602/97 filed by Samatha, a non-government organisation
(NGO, working in the East Godavari district of Andhra Pradesh) [Reported in
1997 (4) SCALE Page 746 - hereinafter referred to as the Samatha judgement].
The Union of India was not a party in the Samatha case nor was any State
Government other than the Government of Andhra Pradesh. However directions
have been given to the Union Government as well as other State Governments in
the case (para 129, 130, 131 of the Judgement appended as Annexure-1).
3. In the majority decision of the Supreme Court in the Samatha case (JJs
Ramaswamy and Saghir Ahmed forming the majority and Justice Pattanaik
dissenting), it has been held that, a. In the Andhra Pradesh Scheduled Area
Transfer Regulation, 1959 'person' includes the State Government; and 'transfer
of immovable property' includes 'the prospecting licenses and mining lease'; b.
All transfers of land belonging to the State Government at any time in the past or
present in "scheduled area of Andhra Pradesh" to non-tribals, and of mining
leases/prospecting licenses whensoever, granted by the State Government in such
areas to non-tribals were absolutely void and impermissible and c. All mining
operations in the scheduled areas of Andhra Pradesh by industrialists may be
stopped forthwith.
4. The Supreme Court has also directed that similar Acts in other States do
not totally prohibit grant of mining leases of the land in the scheduled areas, action
would be initiated by the State Government for similar enactments.
Implications of the Supreme Court Ruling in the Samatha Case:
(a) In the State of Andhra Pradesh
5. The directive of the Supreme Court that all industries, be they natural or
juristic persons, to stop forthwith operations within the scheduled areas, except
where the lease has been granted to the State undertaking has far reaching
consequences. In the light of the judgement, it will be impermissible for the State
Government of Andhra Pradesh to transfer land to non-tribals and all lands held
by industries in tribal areas will also be illegal. This implies that not only all
mineral based industries, which draw their miner ales requirements from mining
leases held in tribal areas, such as cement industry and all other industries that are
located in the scheduled areas of Andhra Pradesh will have to be shut down.

Page 41 of 61
6. The judgement further implies that large mineral resources including
Bauxite and limestone in the State of Andhra Pradesh may never be exploited
because mining leases in these areas cannot be given any one other than the tribals.
Similarly no major industrial investment may never take place in the scheduled
areas of Andhra Pradesh as the State Government will not be able to transfer even
its own land to any one other than tribals for setting up industries. Andhra Pradesh
has the second largest deposits of Bauxite in the country, which lies largely in the
scheduled areas. Similarly, large resources of limestone are also available in the
scheduled areas. Exploitation of these mineral resources require investment of
thousands of crores of rupees and unless major Indian subsidiaries of foreign
corporate bodies are allowed to take up mining operations in scheduled areas,
these mineral resource may not be exploited for the economic growth of the State.
(b) Implications for other States:
7. Besides Andhra Pradesh, scheduled areas have been notified in the States
of Himachal Pradesh, Gujarat, Madhya Pradesh, Bihar, Orissa, Rajasthan and
Maharashtra. The Samatha Judgement may have similar effect on these States in
the years to come.
8. It may be noted that Regulations are framed under the Fifth Schedule to
the Constitution, essentially to prevent the exploitation of tribals by nontribals and
alienation of agricultural land of tribals being passed on to nontribals. It could
never have been the intention of the framers of the Constitution that no economic
activity should take place in the scheduled areas or that the tribals should always
remain isolated from the main stream of society. Apparently, the interpretation
given by the Supreme Court in the Samatha Judgement will bring to halt all
industrial activities including mining operations in the scheduled areas in Andhra
Pradesh and later in other States which in turn will hamper the economic activities
in the scheduled areas in the country.
9. The Samatha judgement has raised several substantial questions of law as
to the interpretations of the Constitution, which are as follows: -
(i) The Constitutional Provisions (Fifth Schedule and Article 244) empower
the Governor of a State to regulate and make regulations for Scheduled areas and
for Scheduled Tribes so that what rightfully belongs to the tribals cannot be taken
away by any means. The majority decision in the Samatha Case has held that the
granting of mining lease to non-tribals in Scheduled Area is violative of the Fifth
Schedule. However, it is felt that Fifth Schedule and Article 244 cannot purport
to take away the sovereign right of the government to transfer its land in any
manner. Justice Pattanaik in his dissenting view has observed that "A combined
reading of Article 244 and Fifth Schedule of the Constitution would indicate that

Page 42 of 61
there is no constitutional obligation on the Governor to make regulations
prohibiting transfer of Government land in favour of a non-tribal within the
Scheduled Area".
(ii) The majority decision has directed for all States where similar Acts do
not totally prohibit grant of mining leases to non-tribals in Scheduled Area,
mining leases in such areas can be granted by the State Government only after
formation of Committee etc, (para 129, 130). Such a direction raises fundamental
interpretation issue relating to the Constitution on the applicability of a Central
Act Mines and Mineral (Development & Regulation) Act, 1957 - (MMDR Act)
which was enacted under the Constitutional Provisions of the Seventh Schedule
of the Constitution (Entry 54 - List 1). The MMDR Act, 1957, which extends to
the whole of India, empowers the State governments to grant mining leases and
the Fifth Schedule to the Constitution does not fetter the operation of the
Parliamentary Law. Further, the Fifth Schedule empowers the Governor to make
regulations, which he may not exercise, while the majority judgement at para 50
states that the Fifth Schedule 'enjoins' the Governor to make regulations.
(iii) The decision in the Samatha case that the 1959 Regulations are
retrospective in intent is a conclusion diametrically opposed to a binding decision
(of September 1995) of a Bench of three Judges of the Supreme Court - Dy.
Collector vs. S.Venkataramaniah 1995 (6) SCC 545.
(iv) The 1959 Regulations were made by the governor under Paragraph 5(2)
of the Fifth Schedule to regulate transfer of land in the Scheduled Areas
specifically mentioned in the Regulation. In the making of this Regulation, the
Governor obviously did not intend to specifically affect any of the provisions of
the MMDR Act, 1957 in the Scheduled Areas in the State, much less to add to
repeal or amend any of its provisions. The MMDR Act 1957, which extended to
the whole of India, continued to apply to Scheduled Areas in the State of Andhra
Pradesh in so far as they related to mining leases and prospecting licenses granted
by the State Government under the provisions of the MMDR Act, 1957. In making
the 1959 Regulations the Governor has not purported to add, to repeal or amend
any part of the word "persons" in Clause 3 of the 1959 Regulations could not
possibly have meant the State Government (as the authority empowered under the
MMDR Act, 1957, to grant mining leases/prospecting licenses) as this would
otherwise involve an amendment of the provisions of the MMDR Act, 1957, as
applicable to the Scheduled Areas.
It may be noted that Justice J.Pattanaik recorded in the minority Judgement in the
Samatha Case that "in my considered opinion the expression 'person' used in

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