STATE OF KERALA AND ORS. versus SUNIL KUMAR AND ORS.

Citation: [2006] SUPP. 1 S.C.R. 199 · Decided: 24-04-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

ST ATE OF KERALA AND ORS. 
v. 
SUNIL KUMAR AND ORS. 
APRIL 24, 2006 
(ARIJITPASA YAT ANDTARUN CHATTERJEE, JJ.] 
Forest Conservation Act, 1980-Section 2-Encroachment of forest 
/and-State Government rejecting request of encroachers to grant them lease 
A 
B 
of encroached lands-Prior approval of Central Government for rejection of C 
request-Requirement of-Held: Such approval was not required by the 
State Government as it was not an order permitting de-reservation of forests 
or use of forest land for non-forest purpose. 
The predecessor of respondent was leased an extent of land. However, 
they encroached upon adjacent portions of that land. Appellant-State D 
Government decided to regularize and grant respondent lease of encroached 
lands. However, thereafter as the Forest Conservation Act, 1980 had come 
into force and appellant found that the condition regarding the forest land 
having already been broken up and ~lea red prior to the coming into force of 
that Act was not satisfied, it rejected request of respondent to comply with its 
decision to grant them the lease of encroached lands. Thereupon, the Forest E 
Department resumed possession of the forest land in dispute. High Court 
allowed the petition of respondent for direction to appellant to get approval of 
the Central Government under Section 2 of the Act for grant of lease of the 
forest land to them. Hence the present appeal. 
Allowing the appeals, the Court 
HELD: 1. The question of approval arises only when the State 
Government makes request for such approval in respect of cases falling under 
the enumerated categories in Section 2. A bare perusal of Section 2 of the 
F 
Act makes the position clear that it has no application when the State G 
Government does not intend to do any of the enumerated acts. The Section 
starts with a non-obstante clause. It deals with restriction on de-reservation 
of forests or use of forest land for non-forest purpose. It provides in positive 
terms that no order in respect of the enumerated actions can be made except 
with prior approval of the Central Government. It does not even remotely 
IW 
H 
200 
SUPREME COURT REPORTS [2006] SUPP. I S.C.R. 
A suggest that even when State Government does not want to take action it shall 
yet be required to seek prior approval. The State Government has made its 
intention clear that it did not want to grant any lease in respect of the 
concerned encroached property. Challenge to such decision at different points 
of time has not yielded any success to the applicant That being so, view of the 
B Division Bench of the High Court that even for its decisions not to grant lease 
the State Government has to seek prior approval of the Central Government 
is not correct The view is clearly contrary to the express language of Section 
2 of the Act. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4678-4679 of 
c 2006. 
D 
From the Final (Common) Judgment dated 21.3.2000 of the High Court 
ofKerala at Ernakulam in O.P.No. 6376/2000 & W.A. No. 641/1998. 
Ramesh Babu M.R. for the Appellants. 
Ms. Nalini Chidambaram, Ms. Liz Mathew and Ms. lndu Malhotra for 
the respondents. 
The Judgment of the Court was delivered by 
ARIJIT PASA YAT, J. Challenge in these appeals is to the legality of 
E directions given by a Division Bench of the Kerala High Court varying the 
order passed by learned Single Judge in a writ petition filed under Article 226 
of the Constitution of India, 1950 (in short the 'Constitution'). According to 
learned counsel for the appellants, though the direction appears to be 
innocuous it is contrary to law. Learned counsel for the respondents on the 
F other hand submitted that no positive direction has been given and only the 
appellant-State has been directed to seek "prior approval' from the Central 
Government in the matter of accepting prayer of the respondents for grant of 
G 
H 
lease. 
Factual background in a nutshell needs to be noted. 
An extent of 486.63 acres of land was leased out to the predecessor of 
respondent No. I. It was found by the functionaries of the State that while the 
lessee was in possession of the land leased, he had encroached upon adjacent 
portions of land and the extent of such encroachment was 230.39 acres. The 
Forest Department resumed an extent of 142.39 acres of land during the year 
STATEOFKERALAv. SUNILKUMAR[ARIJITPASAYAT,J.] 
201 
1976. The balance encroached portion remained with the lessee encroacher. A 
Out of the 142.39 acres of l

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