Ratan Kumar Jain v. The State of Chhattisgarh

HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH AFR CORAM: HON'BLE SHRI YATINDRA SINGH, CJ. & HON'BLESHRI SUNIL KUIVIAR SINHA, J •\

1. Writ Petition No. 4520 of 2000 PETITIONER Ratan Kumar Jain Versus RESPONDENTS State Chhattisgarh) andothers of Madhya Pradesh (Now And

2. Writ Petition (Cl No. 5354 of 2009 PET1TIONER Ratan Kumar Jain RESPONDENTS ' The State of Chhattisgarh and others Versus WRIT PETITIONS UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA Appearance: Petitioner, Shri Ratan Kumar Jain, appeared in person. Shri Sanjay K. Agrawal, Advocate General for the State. Ms. Fouzia Mirza, Assistant Solicitor General and Shri Kashif Shakeel, counsel for the Union of India. Shri Jagdeep Dhankar, Sr. Advocate with Group Captain Shri Karan Singh Bhat and Shri R.K. Gupta, counsel forthe SECL. Shri Goutam Bhaduri, Advocate as a friend ofthe Court. ORDER (5th December, 2012)

1. IWe do not inherit the earth from our ancestors, but borrow jt from It is for us how we give back the mother earth to our children. These cases are, in a way, reminder of that saying is an old proverb. our children' and are for the following reliefs: • Writ Petition No.4520 of 2000 (the first WP) is to restrain the Sou+h from Hlegally mining tlfie Eastern Coalfield Limited (the SECL) reserved forest area, felling the trees, and to prosecute the culprits for nottaking any action; • Writ Petition (C) No. 5354 of 2009 (the second WP) is against the order of the Additional Collector Manendragarh, District Korea (CG), dated 22.8.2009 in revenue case No. 3A-62/2006-2007, rejecting the objection of Shri Ratan Kumar Jain (the Petitioner) against the permission to the SECL to fell the trees. THE FACTS

2. independence, collieries were nationalised and Coal In Chirmiri area, coal mining is being done since 1930's. After India Limited (b^ It was further divided and the SECL was formed Coal-lndia) was formed. as a subsidiary company ofthe Coal-lndia.

3. The SECL is engaged in coal mining in the State of Chhattisgarh and the State of Madhya Pradesh. It also extracts coal at Chirmiri, district Korea, Chhattisgarh. The collieries were eariier granted by leases to extract the coal. 4. After nationalisation, leases were granted in favour ofthe Coal-lndia under the Mines and Minerals (Development and Regulation) Act, 1957 (the MM Act). Subsequently, leases were continued in favour ofthe SECL and are validupto 28.8.2015. ^_

5. The Pariiament enacted the Forest Conservation Act, 1980 (the FC Act) for conservation and check further deforestationof forests. Mining activity is a non-forest activity. Even ifthere be a mining lease in favour of an entity under the MM Act, mining cannot be done within a forest area unless there is prior approval from the Central Government the FC Act and possession is handed over by the State Government.

6. Trees are our lifeline; there is life because there are trees. If there were no trees, then we will surely die because of lack of oxygen. this reason, even if there is prior approval under the FC Act to carry on non-forest activity in a forest, it is necessary to have permission from the forest officials to fell the trees. It is for But what is a forest? Is it only the one that is declared to be forest 7. by the government or can there be forest over private land? This question was taken up by the Supreme Court in a PIL, namely, Writ Petition (C) No.202 of 1995 (TN Godavarman Thirumulkpad Vs. Union of India and Others (the Godavarman case). J-

8. In the Godavarman Case, the Supreme Court has passed orders In one of the orders, reported in (1997) 2 SCC 267. on different dates. the Court answered the aforesaid question. The Court held that: • The FC Act was enacted with a view to check further deforestation, It is enacted for which ultimately results in ecological imbalance. the conservation of forests. It 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 and covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of section 2 (i) ofthe-FC 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; • The prior approval of the Central Government is required for any non-forest activity within the area of any 'forest'; • Unless there was prior approval of the Central Government, all on- going activity within any forest in any State must cease forthwith."

9. In pursuance of the order in the preceding paragraph, Govemment of the erstwhile State of Madhya Pradesh issued a letter No. 16/10/Saat/2-A/90 dated 13.01.1997 addressed to all the Coltectors to identify the areas that are 'forest' within the meaning of the FC Act. also clarified in the letter that a patch of land of 10 hectares or more with average 200 trees per hectare will be treated as forest. It was

10. It appears that the SECL was felling trees without obtaining necessary approval to do so. The Petitioner was a Journalist and had been making complaints to different District Authorities in the erstwi^le State of Madhya Pradesh since 1993. However. when no action was It was taken, he filed first WP before the Madhya Pradesh, High Court. transferred to this Court after its formation. Facts Subsequent to Filing of the First WP During pendency of the first WP, the Petitioner also filed different 11. applications on 6.9.2001 and 23.4.2004 before Naib Tahsildar. On these the SDO applications, some reports were submitted. 22.7.2004 (revenue) No.2/A-62/2002-2003 and 3/A-62/2002-2003 as well as on 18.1.2005 in Revenue Case No.l/A-62/2004-2005 imposing fine on the SECL for illegally felling 289. 90^-and 34 trees respectively. Revenue Cases Thereafter, passed orders r

12. The SECL had a clearance from the Central Government upto

30.4.2003. Subsequently, a fresh temporary working permission to work forest area was granted for a period of 6 months on in the Chirmiri Thereafter, again a temporary

14.6.2004; working pennission was granted for 6 months on 13.6.2005; expired on 12.12.2005. it expired on 13.12.2004. it also 4,, ^ The SECL was not granted any permission after 12.12.2005. 13. However, according to the SECL, it continued to function in pursuance of the order of the Supreme Court dated 16.12.2005 in the Godavarman case.

14. In the temporary permission dated 13.06.2005, some conditions were imposed on the SECL. One of the condition was that no fresh area will be broken-up. Considering this aspect, an interim order was passed on 9.8.2005 in the first WP, directing that the SECL will not break-up any fresh area and will adhere to environmental safeguards as indicated in that permission.

15. The first WP was taken-up on different dates. However, it was directed on 20.2.2006 to be listed after disposal of the Godavarman case.

16. The SECL obtained permission from the Central Government under Section 2 of the FC Act on 15th July, 2011 for diversion of 989.4 hectare of forest land in the Chirmiri area. Thereafter, the SECL filed an application before the State Government to hand over the land, so that it could start mining operations. The Petitioner filed an application before the State Government 17. objecting to hand over forest land to the SECL on the ground that in case the land was handed over to the SECL then it will amount to contempt of the order dated 9.8.2005 passed in the first WP. —(^.—_

18. modification/ clarificatjon of the order dated 9.8.2005. The SECL filed an application (IA number 19) before this Court for It was ordered to come up before the appropriate bench namely consisting ofthose Judges, who had earlier passed the order. ' ,a The matter was placed before a bench consisting one of 19. Judges, who had earlier passed the order. However, this bench thotight that the matter should be dealt by the regular bench and thus, the matter was referred to the full bench as there was difference of opinion.

20. The full bench by order dated 6.9.2012, declined to answer the question on theground that no question was referred to it. In the aforesaid process, time had passed. The SECL approached 21. the Supreme Court and an order was passed by the Supreme Court on 2"d November, 2012 that the High Court may decide the application filed by the SECL within 30 days of production of certified copy of the order and if necessary, a special bench be constituted.

22. The order of the Supreme Court was produced in the High Court on The matter was placed beforethe Chief Justice on the 9.11.2012. administrative side on 24.11.2012 with the request by the counsel of the the case may be SECL that as an outside counsel listed on 29.11.2012. The case was ordered to come up for hearing before the regular bench dealing with the matter on 29.11 .2012. is likely to appear, On 29.11.2012, the case was ordered to come up on 3.12.2012 23. and the parties were requested to provide a date chart and photostat copiesoftherulings. On 3.12.2012, considering the importance of the questions involved

24. and the fact that the Petitioner was appearing in person: • Shri Gautam Bhaduri, Shri Sanjay K Agrawal, the Advocate (AG), and Ms. Fouzia Mirza, General the Assistant Solicitor General (ASG) were requested to assist the Court as the friends of the Court; and • The case was listed on 5.12.2012 so that they may prepare the case. ^ application filed by SECL will be decided. However, it was clarified that the case will be finally decided or atleast the Facts - The Second WP During pendency of the first WP, the SECL filed an application to 25. grant permission to fell the trees standing on its residential colony. The permission to fell the trees was granted on 10.6.2009.

26. The Petitioner filed his objection against the permission granted on 10.6.2009. By the time the objection came up for hearing, some trees were felled by the SECL and only 63 trees remained. The Additional Collector, Manendragrah, District Korea dismissed 27. the objection of the Petitioner on 22.8.2009 and permitted the SECL to fell the remaining trees. The Petitioner has filed the second WP against this order.

28. We have heard the Petitioner in person; Shri Jagdeep Dhankar, Group Captain Shri Karan Singh Bhat and Shri RK Gupta for the SECL: the AG, the ASG. and Shri Gautam Bhaduri, as the friends of the Court.1 1 Shri Sanjay K Agarwal (AG), Ms. Fouzia Mirza (ASG). and Shri Goutam Bhaduri have appeared in the case as the friends of the Court. They will be entitled to fees for one case from the legal aid committee. ^ ^ r ^ ^ 8 The AG and the ASG also represented the State and Union of India. With the consent ofthe parties, both the writ petitions are being finally decided. THE DECISION - The FirstWP

29. FACTS', It is clear from the facts stated in the preceding heading 'THE there was neither any clearance nor any that for sometime, permission or any order of the Supreme Court with the SECL to work/v. the forest area. Yet, the SECL not only carried out non-forest activity inside the forest but also felled the trees without any permission, forwhich it was also fined. The record of the case also shows that there was apathy on the 30. part of the State Govemment in taking any action. This ought not to have happened. Even ifthe SECL is mining coal for public good, unauthorised means are not permissible. One must remember a Gandhi's philosophy: The means are more important than the end: it is only with rightful means that desired end will follow.' It is not only our philosophy, but law of the other nations as well.

31. R Vs. Inland Revenue Commissioners and others, ex parte Rossminster Ltd and others reported in [1979]3 All ER 385: In 'But it is fundamental in our law that the means which are adopted ... should be lawful means. A good end does not justify a bad means,' Merely because the SECL is a government company, it does not mean it has license to violate law. One should stick-to law; even a devil is entitled to his protection; 32. one must remember Bolds in 'A man for all seasons' Act 1 Page 147 -—^--^ ^, quoted with approval by US Supreme Court in Tennessee Valley Authority Vs Hiram G. Hill 437 US 153, 57 L.Ed 2nd 117 = 98 S Ct 2279: The law Roper the law 1 know what's legal not what's right And will stick to what's legal... 1 am not God. The currents and eddies of rights and wrong which you find such plain sailing. 1 cannot navigate 1 am no voyager. But in the thickets of law, Oh there I'm a forester.-.what would you do? Cut a great road through the law to get after the Devil. And when the last law was down and Devil turned round on you - where would you hide, Roper the laws all being flat.... This country's planted thick with laws from coast to coast-Man's law and God's - and if you cut them down...D'you really think you could stand upright in the winds that would blow then.-.Yes 1 would give the Devil benefit of law for my own safety's sake.' Environment, trees are not devil; they are entitled to much better protection: after all, we have borrowed them from pur children and have a pledge to return them back - if not in a better position then at least in the same position as we had got them.

33. The Petitioner, as a good spirited citizen, had been making It was only when there was no response from the State complaints. officials that the first WP was filed. Even then.only a Naib Tahsildar, a petty official, took courage to make a report about the illegal felling of the trees by the SECL.

34. The counsel for the SECL submits that: • The fine was imposed for illegal felling of the trees; • • It has been deposited; and It should end of the matter. -—-J^-L 10

35. like that It is unfortunate that a government company should think or submit Felling of trees is not an ordinary damage that can be compensated in terms of money. The payment of fine is too little a price for felling the trees and that too not by an ordinary but a government company.

36. Everyone is expected to obey law; more so the SECL; it should<- a model company: it did not come up to the expectation. However, it is a past, though we will refer back to jt subsequently.

37. The SECL was granted approval in-prindple on 24.4.2006 subject to the fulfillment of certain conditions. The State Government furnished compliance report in respect of the conditions stipulated in the in-prindple approval and had requested the Central Govemment to grant the final approval. the final On the basis of the report of the State Government, 38. approval was granted on 15.7.2011 under Section 2 ofthe FC Act. This> is subject to the conditions mentioned therein: • Under condition number 8, the permission is co-terminus with the mining lease granted under the MM Act or for 20 years, whichever is less; • Under condition number 17, the SECL is to submit self monitoring report of compliance of the conditions; • Under condition number 20, the Chief Conservator of Forest (Central) Regional Officer, Bhopal (the CCF-Bhopal) may impose conditions in interest of conservation, protection or development of forests. —- -- € r"' 11

39. Considering the past conduct of the SECL and the apathy of the officers, the State Government and the CCF-Bhopal may: • Impose a condition of implanting 10 trees for every tree felled by the SECL and to be felled in future; • Provide for independent monitoring committee, apart from the self regulation under condition 17 to oversee whether the conditions mentioned in the approval dated 15.7.2011 are being complied with or not; • Nominate the Petitioner as one of the persons in the independent committee along with other persons. Needless to add that if the possession is handed over to the SECL, then the State Government and the CCF-Bhopal may impose any other Condition as they think fit. It

40. is also clarified that is open to the Petitioner or any other interested person to question validity of approval dated 15.7.2011 under the National Green Tribunal Act, 2010. THE DECISION - The Second WP In the second WP, the order dated 22.8.2009 has been challenged. 41. By this order the objection of the Petitioner against the permission to the The permission to fell the SECL to fell the trees, has been dismissed. trees and dismissal of objections was passed under Section 240 of the is appealable Chhattisgarh Land Revenue Code, 1959 (the Code). under Section 44 and then revisable under Section 50 ofthe Code. It 12

42. The Petitioner may, if he so likes, fite an appeal against the same. It will also be open to him to file application to condone delay in filing the appeal. CONCLUSION

43. Our conclusions are as follows: Considering the past conduct of the SECL and the apathy of the (a) officers, the State Government and the CCF-Bhopal may: • Impose a condition of implanting 10 trees for every tree felled by the SECL and to be felled in future; • Provide for independent monitoring committee, apart from the self regulation under condition 17 of the approval dated 15.7.2011 to oversee the conditions mentioned in the approval are being complied with or not; • Nominate the Petitioner as one of the persons in the independc ^ committee along with other persons. Needless to add that if possession is handed over to the SECL then the State Government and the CCF, Bhopal may impose any other condition as they think frt. The SECL was granted approval on 15.7.2011. The Petitioner or if they are so advised, challenge the approval (b) any other person may, under the National Green Tribunal Act 2010; The Petitioner may, (c) dated 22.08.2009. if he so likes, file appeal against the order 13

44. In view of our conclusion: • The firet WP (Writ Petition No.4520 of 2000) is disposed of with observations; The second WP (Writ Petition (C) No.5354 of 2009 is dismissed with observations. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge ^^