2013 Supreme(Guj) 173

GUJARAT HIGH COURT
Hon’ble Mr. Chief Justice Bhaskar Bhattacharya & Hon’ble Mr. Justice J.B. Pardiwala
Farook Shaikh
Versus
State of Gujarat & Ors.
Writ Petition (PIL) No. 1 of 2013—Decided on 03/05/2013

Point in Issue :
Whether in the facts Central Government has power to consider proposal forwarded by State Government to permit respondent No. 2 company to use fresh land for non-forest purpose.

Headnote:(a) Constitution of India, 1950 — Article 226 — PIL — Scope — Ordinarily when Court allow PIL indicated.

       Held :

       (i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;

       (ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;

       (iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;

       (iv) That such person or group of persons is not a busy body or a meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;

       (v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;

       (vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;

       (vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;

       (viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;

       (ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives; [Para 11]

       That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest. [Para 12]

       (b) Constitution of India, 1950 — Article 226 — PIL — By worker — Highlighting and seeking action for illegal occupation of ‘Forest land by company respondent No. 2 — Involving locus standi of petitioner — Maintainability.

       Held :

       Could it, however, be said that his background as a politician carries with it any odium so as to dis-entitle him to espouse public causes, if otherwise they are entertainable by this Court? Court is of the opinion that this petition should not be thrown out merely on the ground that the same has been filed by a political worker belonging to a political party opposed to the ruling party. This writ petition contains serious allegations touching the matters of great public importance. Court should not ignore or overlook the fact that as on today the company is in occupation of 2,76,000 sq.mtrs. of forest land without any prior approval from the Central Government. Court should also not overlook or ignore the fact that the company is in possession since past almost six years and no steps have been taken till this date by the State Government except forwarding a proposal seeking prior approval in the year 2011. There is no denial to the fact that the land is a forest land and as it has been used for the purpose of construction much damage must have been caused to the environment. [Para 17]

       The questions raised in this writ petition, in our considered view, are not political questions. If the acts alleged are in violation of the rule of law or the provisions of the Constitution, or any statutory law, it is no answer to say that because it has been preferred by a politician it becomes a political question and, therefore, should not be adjudicated.

        [Para 19]

       In such circumstances, Court overrule the preliminary contention raised on behalf of the Respondent No. 2 company as well as the State Government and proceed to consider the matter on merits, so far as the other issues which have been raised during the course of the hearing of this petition are concerned. [Para 22]

       Head Note :

       (c) Forest (Conservation) Act, 1980 (Central Act 69 of 1980) — Sections 2, 2-A, 3, 3-A & B — Scope of — Proposal by State Government — Permitting the respondent No. 2 Company to use the forest land for a non-forest purpose — Powers of Central Government at this stage to consider the proposal and grant ex post facto approval — Finding as to — A mere reading of Section 2 of the Act clearly shows that prior approval of Central Government is mandatory as well as precondition of the grant of lease of forest land for non-forest purposes — Such requirement is mandatory — Court further held that even if the Central Government at the stage decides to took into the proposal of the State Government — It will not amount to granting ex post facto approval — It could only be so considered had any order or permission been granted by State Government permitting the respondent No. 2 company to use the forest land for any non-forest purpose — Court having thus expressed it’s concerned held that ultimately it is for the Central Government to take an appropriate decision in the matter and we should not usurp it’s jurisdiction — Court expressed it’s confidence that in taking appropriate decision the Central Government will keep in mind object of the Act of 1980 as well as law laid down by Apex Court in various decisions in this regard.

       Held :

       The object of Section 2 of the Act is to give an overall power reserved to Central Government to supervise the acts of State Government in respect of the conservation of forest. Since all Acts and Orders in Union Territory are that of Central Government there can be no question of Central Government passing order with prior approval of itself. Section 3A of the Act imposes penalty for contravention of the provisions of Section 2 of the Act. The Act applies to renewal of mining lease as well and even if there was provision for renewal in lease agreement on exercise of lessees option requirements of the Act had to be satisfied before grant of renewal. [Para 30]

       A mere reading of Section 2 of the Act clearly shows that prior approval of the Central Government is mandatory as well as a precondition of the grant of lease of forest lands for non-forest purposes. It is the well known principle of interpretation of law that the expressed intention of the statute must be given its full effect and that such an expressed intention should not be tinkered with, by introducing something which runs counter to the said intention. [Para 32]

       Court is of the opinion that even if the Central Government at this stage decides to look into the proposal of the State Government for permitting the Respondent No. 2 company to occupy 2,76,000 sq.mtrs. of forest land, it will not amount to granting ex-post facto approval. The reason is plain and simple. This principle which Mr. Oza has tried to highlight would have been applicable only in the event, had any order or permission been granted by the State Government or other authority permitting the Respondent No. 2 company to use the forest land or any portion thereof for any non-forest purpose. Had it been so, then in such circumstances, Mr. Oza would have been quite justified in submitting that the State Government now cannot pray for necessary approval as the same would amount to ex-post facto approval which is not recognized in law in view of the expression “prior approval” in Section 2 of the Act of 1980. [Para 42]

       Court is of the view that it is ultimately for the Central Government to take an appropriate decision in the matter and we should not usurp its jurisdiction. All that we have decided in this petition is that the Central Government will have the jurisdiction to consider the proposal forwarded by the State Government. How to consider, what to consider and what should be the ultimate decision is left best to the wisdom of the Central Government. Court is sure that in taking an appropriate decision, the Central Government will keep in mind the object of the Forest (Conservation) Act, 1980 as well as the law laid down by the Supreme Court in various decisions in that regard.

        [Para 46]

       Law Laid Down :

       Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with said requirement leads to severe consequences such requirement would be mandatory.