A. CHOWGULE & CO. LTD. versus GOA FOUNDATION & ORS.

Citation: [2008] 12 S.C.R. 196 · Decided: 18-08-2008 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Dismissed

Judgment (excerpt)

[2008] 12 S.C.R. 196 
~ 
A 
A. CHOWGULE & CO. LTD. 
V. 
GOA FOUNDATION & ORS. 
(Civil Appeal No. 5180 of 2001) 
B 
AUGUST 18, 2008 
[TARUN CHATTERJEE AND HARJIT SINGH BED!, JJ.] 
~ 
Forest Conservation Act, 1980 - s. 2 - Forest (Conser-
vation) Rules 1981- rr. 4, 5 and 6 - De-reservation of forest 
c and use of forest land for non-forest purpose - Restriction on 
- Held: Prior approval of Central Government is required as 
per procedure prescribed for diversion of forest land and its 
use for some other purpose - Formal approval granted ex-
post facto would not cure any defect in dereservation. 
D 
The Government of Goa leased 12 hectares of land 
to Appellant-company to enable it to set up an integrated 
• 
unit including a benefication plant for production of sale-
'f' 
able iron ore and to operate it as a 100 per cent Export 
Oriented Unit. In this regard, a Memorandum of Lease 
E· dated 1st November 1989 was executed between the Gov-
ernor and Appellant, pursuant to which Appellant obtained 
various administrative sanctions and also imported ma-
chinery for operation of the project. 
F 
At this juncture, Respondents 1 to 3 filed writ peti-
tions before the High Court praying for a writ of certiorari 
for quashing the Memorandum of Lease dated 1st Novem-
ber 1989, contending that the land leased was forest land. 
High Court adjourned the matter in view of the statement 
made by the Advocate General that the State Government 
G proposed to take up the matter with the Central Govern-
ment so as to secure the necessary approvals postulated 
'f,, 
under section 2 of the Forest Conservation Act, 1980. 
Subsequently, the State Government wrote to the Minis-
try of Environment and Forest seeking clearance under 
H 
196 
A. CHOWGULE & CO. LTD. v. GOA 
197 
FOUNDATION & ORS. 
--:( 
section 2 of the Act whereafter in 1997, the Ministry of A 
Environment and Forest conveyed its approval for diver-
sion of 4.44 hectares of forest land. The writ petition was 
finally allowed in the year 2000 and writ of certiorari was 
issued quashing the lease agreement dated 1st Novem-
ber 1989. It was, inter-alia, held that the various approv-
B 
als/sanctions granted to Appellant by the Industries De-
t 
partment or by the Collector could not, by any stretch of 
imagination, be construed as permission for deforesta-
tion of the forest area, as envisaged by section 2 of the 
Act as the said Act required prior approval of the Central c 
Government after the procedure given in Rules 4, 5 and 6 
of The Forest (Conservation) Rules 1981 had been fol-
lowed. The plea of the appellant that the area concerned 
was not a forest was also repelled by the High Court with 
the observation that an average of 250 trees per hectare D 
were growing on the land, as evident from the affidavit 
• 
filed by the Deputy Conservator of Forest, and that the 
'Y 
entire area was heavily forested with 3000 trees and was 
in addition contiguous to the Government forests. The 
Bench also observed that merely because the land had E 
been described as "Dry Crops Land" would not change 
the nature of the land as it was apparently a wrong de-
scription more particularly as Section 2 referred not only 
to forests but to forest land as well. The High Court held 
that the 12 hectares of land in question being forest land, 
prior permission under section 2 of the Act was sine qua 
F 
-~ 
non for execution of the lease deed dated 1st of Novem-
ber 1989 and without such prior permission, the lease 
granted in favour of Appellant was contrary to law and 
null and void. 
In appeal to this Court, Appellant contended that G 
·-· 
there had been no violation of the provisions of Section 2 
of the Act since the Central Government had givan its post-
facto approval to the project and had also conveyed its 
approval for diversion of 4.44 hectares of the land sub-
H 
198 
SUPREME COURT REPORTS 
(2008] 12 S.C.R. 
A ject to several conditions which had been complied with 
and in this view of the matter, any flaw, which may have 
been present at the initial stage, had been rectified. 
Respondents, however, submitted that Section 2 of 
the Act and the Rules pre-supposed a prior approval of 
8 the Central Government as per the prescribed procedure 
before the dereservation of forest land and formal approv-
als granted by any other agency or by the Central Gov-
ernment ex-post facto, would not cure any defect in the 
dereservation; that even as per the appellant's case, the 
C lease deed for 1

Excerpt shown. Read the full judgment & AI analysis in Lexace.