WP(C) No. 3 of 2016. Case: Balios Swer Vs The State of Meghalaya and Ors.. Meghalaya High Court
|WP(C) No. 3 of 2016
|For Appellant: K. Paul, Adv. and For Respondents: S. Sen Gupta, Addl. Sr. GA
|T. Nandakumar Singh, Actg. C.J.
|January 27, 2016
|Meghalaya High Court
T. Nandakumar Singh, Actg. C.J.
1. As agreed to and prayed for by Mr. K. Paul, learned counsel, appearing for the petitioner as well as Mr. S Sen Gupta, learned Addl. senior GA, appearing for the State respondents, this writ petition was taken up for final disposal at the admission stage.
2. Factual matrix:
"The main relief sought for in the present writ petition is for a direction to the respondent authorities, more particularly, respondents No. 2 and 3 to allow the petitioner to continue with the traditional mining of sandstones and limestone and transportation from the area, with sparse vegetation unfit for any kind of cultivation, situated in remote hills terrain. The entire life, culture and economy of the petitioner as also of local population have revolved only around limestone and sandstones mining. The petitioner and other similarly situated people are quarrying of limestone from their lands and selling it to local lime kilns and other buyers and earning their livelihood. It is the admitted case of both the parties that the land tenure system in Khasi and Jaintia Hills Districts, where the land as well as the minerals underneath belong to the land owners as per the Sixth Schedule of the Constitution of India, is totally unique and different from the rest of the country. According to the petitioner, their land tenure system is based on the following: (i) Socio-political history of these areas; (ii) the fact that these areas were never a part of British India and these areas ceded to the Union of India by an Instrument of Accession signed by the Chiefs of the then 25 Khasi States; (iii) land tenure system prevalent in the area prior to signing of Instrument of Accession; (iv) land tenure system prevalent in the area post Instrument of Accession till date; (v) lack of any kind of ryotwari settlement of lands by the British Government before independence of India or by the State Government of Assam or of Meghalaya after independence; and (vi) absence of any law made either by the State or by the Parliament vesting all mineral rights in the State. As such, surface rights over the land as well as the minerals below the land belong to the land owners. It is not disputed by the learned Addl. senior GA that as per the website of Mining and Geology Department, Govt. of Meghalaya, the limestone reserve in Meghalaya is about 15,100 million tones. At present, the mining of limestone in Meghalaya is not developed on account of being carried out on a very small scale level. However, sandstone and limestone quarries do not cause any significant damage to the environment for the reason that the lands having sandstone and limestone remain barren and not considered fit to grow plants and forest. Only shrubs like vegetation can grow in such places provided the area is excavated. It is further the admitted case of the parties that the lands having sandstone and limestone remain barren and it is not fit for vegetation and also the trees could not grow on it."
3. The traditional activities of local inhabitants of the State of Meghalaya excavating limestone and sandstone from the outskirt of the forest, where it is very rocky and not fit to grow plants, for construction works and other purposes and also for earning their livelihood had been considered by the Apex Court in Lafarge Umiam Mining Private Limited v. Union of India and others, reported in (2011)7 SCC 338.
4. In the case in hand, the concerned Divisional Forest Officer, Khasi Hills (T) Division, Shillong, had issued No Objection Certificate to the petitioner and others inhabitants to extract and export limestone from private land which is outside the forest area and further allowed to supply and export of limestone anywhere within and outside the State on payment of Forest royalty, income tax and VAT to the Forest Department.
5. Hon'ble the Apex Court in Lafarge Umiam Mining Private Limited (supra) held that: "In our view, the natives and indigenous people are fully aware and they have knowledge as to what constitutes conservation of forests and development. They equally know the concept of forest degradation. They are equally aware of systematic scientific exploitation of limestone mining without causing of "environment degradation". Hon'ble the Apex Court was further fully satisfied that the natives and the indigenous people of Nongtrai village are fully conscious of their rights and obligations towards clean environment and economic development. Hon'ble the Apex Court further defined the meaning of "forest" as provided in the United Khasi and Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1958, that the meaning of "forest" would be unbroken area having more than 25 trees having girth of more than 120 cm per acre. Hon'ble the Apex Court held that "prior approval" requirement under the Environment Protection and Pollution Control-Forest (Conservation) Act, 1980, need for the area declared to be "forest" and as such prior approval is not needed for area which is not a forest. Paras 88, 92, 97, 98, 101, 102, 103 and 120, are quoted hereunder:
"88. At the outset, one needs to take note of Section 2 of the 1980 Act which stipulates prior approval. That section refers to restriction on the dereservation of forests or use of forest land for non-forest purpose. It beings with non obstante clause. It states that:
"2. Restriction on the dereservation of forests or use of forest land for non-forest purpose - Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing-
(i) * * * *
(ii) That any forest land or any portion thereof may be used for any non-forest purpose;"
This is how the concept of prior...
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