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PETITIONER:

TARUN BHARAT SANGH, ALWAR

Vs.

RESPONDENT:

UNION OF INDIA AND OTHERS

DATE OF JUDGMENT08/04/1993

BENCH:

JEEVAN REDDY, B.P. (J)

BENCH:

JEEVAN REDDY, B.P. (J)

VENKATACHALA N. (J)

CITATION:

1993 SCR (3) 21 1993 SCC Supl. (3) 115

JT 1993 (3) 1 1993 SCALE (2)441

ACT:

Constitution of India, 1950: Article 32.

Forest (Conservation) Act 1980: Section 2.

Rajasthan Forest Act: Section 29.

Rajasthan Mincr Mineral Concession Rules, 1986: Rule 4(6).

Environment (Protection) Act: 1986, Section 3 and

Notification dated May 7,1992. Environment-Protection of-

Illegal mining activity in area declared as Tiger Reserve in

Alwar District of Rajasthan Directions by Court.

HEADNOTE:

The petitioner, a voluntary Organization Interested In

protecting environment, approached this Court under Article

32 of the Constitution of India complaining of the

widespread illegal mining activity going on in the area

declared as a Tiger Reserve In Alwar District in the State

of Rajasthan. It prayed that in the interest of ecology,

environment and rule of law, the activity should stop. It

was alleged that the area where the mining activity was

carried on was declared as a tiger reserve under the

Rajasthan Wild Animals and Birds Protection Act, 1951; as a

sanctuary and a National Park under the Wild Life

(Protection) Act, 1972 and as protected forest under the

Rajasthan Forest Act, 1953, and that these notifications

prohibit all or any mining activity, and yet the State

Government had granted hundreds of licences for mining

marble, dolomite and other materials and that such section

was contrary to law.

This Court Issued notices to the State Government and the

mineowners respondents In the Writ Petition. An

interlocutory direction was also made that no mining

operation be carried on in the protected

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area.

The Court also appointed a Committee under the Chairmanship

of a Former Judge of the State High Court to ensure due

observance of the various Acts and Notifications that had

been issued in respect of the protected area. The Committee

was requested in particular to demarcate the area declared

as protected forest under the notification dated January 1,

1975 issued by the Rajasthan Government under Section 29 of

the Rajasthan Forest Act.

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The Committee submitted its Report dated September 28,1992,

stating that the committee had verified and cross-checked

the tracing maps furnished by the Forest Department with the

maps furnished by the Revenue Department and found that both

of them matched, and that after looking into the Khasra

numbers mentioned in the notification dated January 1, 1975

and the other material placed before it by the parties, the

Committee identified the areas declared as protected forest.

It stated that they were not in one contiguous block but

were comprised in several blocks or areas. The 215 mines

mentioned in Appendix-A to the Report fall completely within

the areas declared as protected forest while 47 mines

mentioned in Appendix-II to the Report fall partly inside

and partly outside the areas declared as protected forest.

There was no difference of opinion among the members of the

committee regarding the location of the mines but only with

respect to the question whether they should be directed to

he closed. The Chairman recommended that the mining

operations in all the 215 mines listed in Appendix-A should

be stopped forthwith and the mining operation in the 47

mines listed in Appendix-B be stopped forthwith to the

extent they fell within the area declared as protected

forest. The three other Members of the Committee viz.

Collector, Chief Conservator of Forest and Chief Wildlife

Warden and Additional Director of Mines differed from the

Chairman. They suggested that this Court should accede to

the representation of the State Government (Appendix IC')

that the area covered by the mines should be allowed to be

excluded from the protected forest, in lieu of which the

state Government undertook to provide an equal extent of the

area for being included in the protected forest. The Sate

Government's application to the Court was also to the same

effect. It was stated therein that the protected forest

area measures about 800

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Sq. kilometers whereas the 262 mines mentioned in Appendixes

'A' and `B' cover only an area of 2.08 Sq. kilometers and

that in the interest of the economy of the State, industry

and workers, an extent of 5.02 Sq. kilometers including the

area covered by the said mines be allowed to be deleted from

the protected forest, the State Government offering to place

an equal extent for the purpose of being declared as

protected forest.

The mine-owners also riled objections to the Report of the

Committee and requested that they he allowed to continue

their mining operations.

The Government of India which was directed to file an

affidavit. riled the same and stated that the area declared

as project tiger/tiger reserve was covered by notification

issued under the Rajasthan Forest Act, Environment

Protection Act, 1986 and the Mines and Minerals Regulation

and Development Act, 1957. It submitted that the Forest

Conservation Act applies not only to reserve and protected

forest but to all areas recorded as forest in Government

records, and that Mining was non-forestry activity and,

therefore, cannot be carried on in areas to which the Forest

Conservation Act applies, without prior approval of the

Government of India. It was further stated that on May

7,1992 the Government of India had issued the final

notification under Section 3 of the Environment Protection

Act, 1986 prohibiting all mining activity, except with the

approval of the Government of India and that since no

permission was obtained under any of the said enactments

with respect to the said 262 mines, no mining operations can

be carried on in the area unless and until the permission of

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the Central Government was obtained.

On petitioner's behalf it was submitted that all the mining

activity in the areas notified under the notification dated

May 7,1992 should have stopped long ago and continuance of

mining activity amounts to gross contempt and constitutes a

clear violation of orders; that the State Government appears

to be colluding with the mineowners which is evident from

the dissent expressed by officers of the State Government

who were Members of the Committee to the straight forward

and logical recommendation of the Chairman, and that

prohibition of mining flows from the provisions, of the

Forest

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Conservation Act as well as the notification issued under

the Environment Protection Act in May, 1992.

On behalf of the State Government It was submitted that the

State Government and Its, officers were not aware when they

granted leases/licences in respect of the listed mine that

they fell within the area declared as protected forest and

that the certificate issued by the Forest Department

indicates that they did not fall within the protected forest

area. It was thus a bonafide grant. It was further

submitted that the State was prepared to abide fully by the

orders of this Court,-54 mines had been shut down and it was

prepared to shut down all the listed mines if this Court so

directs. A map prepared by the State officers showing the

areas covered by tiger reserve, sanctuary, protected forest,

and the location of the listed mines was placed before the

Court for consideration.

On behalf of the mine-owners in Mallana village it was

submitted that demarcation of protected forest by the

Committee was defective, erroneous and unacceptable for the

various reasons set out in the objections riled to the

report, that the map produced by the State Government

delineating the tiger reserve was incorrect besides being an

authenticated, that the mine-owners do not admit that their

mines fell within the tiger reserve or within the protected

forest areas, and that closing down of hundreds of mines

employing thousands of workers, wherein a large amount of

capital was invested would disturb the economy of the State

besides affecting the supplies of marble and other minerals,

serving no public purpose.

On behalf of the some of the other mine owners it was

submitted that it was unsafe to act upon and to pass any

orders based upon the map produced by the State Government;

that the declaration as tiger reserve by the Government of

India was not under any statutory authority; that the areas

declared as protected forest was not coextensive with the

area declared as tiger reserve and sanctuary and national

park; that none of the mines fell within the sanctuary or

the National Park-not even within project tiger, and that

the mine owners are as much interested In protecting the

environment and ecology as the petitioner.

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Declaring that the relevant laws were violated, and passing

directions, the Court,

HELD: 1. This is not a case where the Court is called

upon to shut down an activity being carried on lawfully, in

the name of higher considerations of ecology and

environment. It is a simple case to ensure observance of

enacted laws made by the State to protect the environment

and ecology of the area. In such a case, there is no need

to be oppressed by considerations of balancing the

interest-. of economy and ecology. That has already been

done by the Legislature and Parliament (37-D-E).

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In the instant case, the petitioner's grievance is against

the executive. Charged with the delegation of implementing

the laws of the land, the executive is yet failing to do its

duty by law and by people, and that when faced with the

might of money, respect for law is dissolving into respect

for gammon (37-E-F).

2. The State Government is empowered not only to declare

any forest land as a protected forest but also any waste

land as such. The idea evidently is not only to protect the

existing forest but also to bring waste lands under schemes

of afforestation. Once declared as protected forest, the

distinction between forest land and waste land disappears.

The entire area becomes a protected forest. (38-B)

3. Reading Section 29 of the Rajasthan Forest Act as a

whole, it appears, the normal rule is to make an enquiry

into the rights of the state Government and of the private

parties over the land proposed to be declared as protected

forest in the first in-stance, prepare a record thereof and

then declare it as a protected forest. But in case of

urgency, It is open to the State Government to Issue such

notification forthwith subject, of course, to the existing

rights of individuals and communities in the area concerned.

(38-F)

In the instant case, the notification dated January 1, 1975

issued by the Government of Rajasthan appears to be one

issued under the proviso to sub-section (3) of Section 29.

(38-G)

4. Section 29 contemplates only one notification declaring

an

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area as a protected forest. Whether issued after a normal

enquiry and record or without enquiry or record, Section 29

contemplates only one notification and not two in any event.

Therefore, the notification issued is the valid and

effective one. It is not a provisional or preliminary

notification. It is not also the case of the mine owners

that leases or licences in their favour were granted prior

to January 1, 1975. All of them were granted in the middle

of or in the late eighties. The savings clause contained in

the proviso to sub-section(3)does not avail them. (39-A-B)

5. The Committee appointed by this court to demarcate and

identify the areas declared as protected forest was composed

of high officials of the Government of Rajasthan. They had

undertaken an elaborate and intensive exercise and have

demarcated the areas declared as protected forest with the

help of the official maps and records. There is no reason

not to accept the said report. The several objections

submitted by the mine owners cannot prevail over the

official maps and records.They were represented before the

commission at the time of the said exercise. The dissent

note appended by the officers of the Government of Rajasthan

was not with respect to the demarcation or identification of

areas declared as protected forest, but only with respect to

the closure of the mines operating within those areas. The

report of the committee is accepted. (39-D-F)

6. Once an area is declared as a protected forest it comes

within the purview of the Forest (Conservation) Act, 1980.

Even the State Government cannot carry on any non-forest

activity in the said area without prior approval of the

Central Government. That the mining activity amounts to

non-forest purpose is beyond dispute. Thus the grant of

mining lease /licenses their renewal by the State Govern-

ment, without obtaining the prior approval of the Central

Government in respect of the mines situated within the

protected forest after January, 1, 1975 is contrary to law.

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(39-G-H, 40-B)

7. All the mines listed in Appendix A to the Committee's

Report do fall within the areas declared as protected forest

while the mines listed in Appendix-B fall partly with in and

partly out side such areas. (41-B)

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8. According to rule 4(6) of the Rajasthan Minor Mineral

A' Concession Rules, 1986 no mining lease could have been

granted or renewed within the forest "without clearance from

the Central Government in accordance with the forest

(Conservation) Act, 1980 and the Rules made there-under"..

Admittedly, no such prior approval or clearance of central

Government was obtained.

9. The purpose of Forest Acts and Environmental Protection

Act may not always be the same. Closure of the mines may

not serve the environmental purpose but it may serve the

forest purpose. (40-B)

10. It is appropriate that the merits of the proposal of

the State Government to delete an extent of 5.02 Sq.

kilometers from out of the protected forest be examined by

the Ministry of Environment and Forest, forests, and a

report submitted to this Court, within three months. Orders

will be passed thereafter on the application riled by the

State of Rajasthan. (40-E)

11.The notification issued by the Central Government under

Section 3 of the Environment (Protection) Act 1986 on May 7,

1992 expressly prohibits the carrying on of mining

operations, except with the Central Government's prior

permission, in the "areas covered under project tiger". The

prohibition extends to existing mining leases in

Sanctuaries/National Park. All mining operations are pro-

hibited therein. (41-C-D)

12. There can he no legitimate dispute with respect to the

correctness of the map produced by Government of Rajasthan

or with respect to the area declared as tiger reserve. Both

the State Government and Central Government have delineated

it. May be that the declaration as tiger reserve was

without any statutory authority and is relatable to the

executive power of the Union of India-but the notification

issued under Section 3 of the Environment (Protection) Act

puts the stamp of statutory authority over it. The Central

Government has specifically stated in its affidavits that no

"prior permission" was obtained with respect to the mines

located within the tiger reserve. On this ground, the

mining operations being carried on in the tiger reserve,

including the listed mines also appears to be

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contrary to law. (42-C-D)

13.The situation is that the mining activity in the listed

mines mining activities in 54 mines has already been

stopped) is illegal and has to stop. May be that this will

have the effect of bringing to halt the activity involving a

good amount of capital and a large number of workers. But

in view of the inherent illegality attaching to them, there

is no option but to close them. They cannot be permitted to

operate. If and when the Central Government recommends the

plea of the State Government and any of the areas already

declared as protected forest are deleted with the leave of

this Court, can the mining activity go on in these areas.

(43-D)

14.It is directed that the mining activity in the mines

situated outside the protected forest areas but within the

tiger reserve may continue for a period of four months.

Within this period it shall be open to the concerned mine

owners to approach the Department of Forest and Environment,

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Government of India for permission to continue their mining

operations. They can continue the mining operations in

these mines only if the Central Government permits them and

subject to the orders of the Central Government in that

behalf. If no permission is obtained from the Central

Government within the said period of four months, the mining

activity in the entire area declared as tiger reserve shall

stop and cease on the expiry of four months. (44-B-C)

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (c) No. 509 of 199 1.

(Under Article 32 of the Constitution of India.)

Dr. Rajiv Dhawan, V. Akshya Bali and Miss Kamini Jaiswal for

the Petitioner.

M.C. Bhandare P. Chidambaram, Sushil Kumar Jain, Ms.

Meenakshi Arora, S.S. Jauhar, Aruneshwar Gupta and E.C.

Agrawala for the Respondents.

The Judgment of the Court was delivered by

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B.P. JEEVAN REDDY, J. Tarun Bharat Sangh, a voluntary

Organisation interested inter alia in protection of

environment, approached this court complaining that

widespread illegal mining activity was going on in the area

declared as Tiger Reserve in Altar District of Rajasthan.

In the interest of ecology, environment and rule of law, it

said, the activity should stop.

The petitioner's case is-that the area wherein the illegal

mining is going on has been declared as a tiger reserve

under Rajasthan Wild Animals and Birds Protection Act, 195

1, as a Sanctuary and a National Park under Wild Life

(Protection) Act, 1972, and as protected forest under the

Rajasthan Forest Act, 1953. These various notifications,

said the petitioner, prohibit all or any mining activity and

yet the Government of Rajasthan had granted hundred of

Licences for mining marble, dolomite and other minerals in

late 1980s, contrary to law.

After issuing notices to the Government of Rajasthan and the

mine owners (which expression is used in this order to

denote lessees and licences under the leases and licences

granted by the State of Rajasthan), this court gave certain

directions on October 11, 1991. An interlocutory direction

was issued to the effect that "no mining operation of

whatever nature shall be carried on in the protected area".

A Committee under the chairmanship of Shri M.L. Jain, J.,

former Judge of the Rajasthan High Court was appointed to

ensure due observance of the various Acts and Notifications

issued there under with respect to the said protected area.

In particular, the committee was asked to demarcate the area

declared as protected forest under the notification dated

January 1, 1975 issued by the Rajasthan Government under

section 29 of the Rajasthan Forest Act. This demarcation

was felt necessary in view of the ambiguity prevailing with

respect to the precise boundaries of the protected forest

declared as such under the notification aforesaid.

Petitioner's case was that no mining lease/ licence can be

granted within the protected forest except with the prior

permission of the Government of India Section 2 of the

Forest (Conservation) Act, 1980 and Rule 4(6) of Rajasthan

Minor Mineral Concession Rules) and that no such permission

was obtained in fact.

By its order dated November 26, 1991, the court clarified

that the order dated October 11, 1991 was not intended to

permit the mine-

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owners to carry on their mining activity where such activity

was prohibited by any Act, Rule or Notification having the

force of Law. In effect, the order said, it meant to

prohibit-and not to permit the mining activity.

In its order dated May 14, 1992, the court clarified the

meaning (if the expression "protected area" used in the

order dated October 11, 1991. The expression, it was

clarified, was intended to and does refer to all the areas

which have had legal protection against non-forest

activities that devastated the environment including

poaching, mining, felling of trees etc. It was further

clarified that once an area is declared as protected forest,

it becomes a protected forest notwithstanding the fact that

a part of that area is waste. The idea behind declaring an

area as protected forest, it was pointed out, is not merely

the protection of the existing forest but also

afforestation.

The Committee submitted its report dated September 28, 1992.

The Report states that the Committee verified and cross-

checked the tracing maps furnished by the Forest Department

with the maps furnished by the Revenue Department and found

that both of them Watched. After looking into the khasra

numbers mentioned in the notification dated January 1, 1975

and all other material placed before it by the parties

including the mine-owners, the report states, the committee

identified the areas declared as protected forest. The

report indicates that the areas declared as protected forest

under the said notification was not in one contiguous block

but was comprised in several blocks or areas, as it may be

called.

As per the said Report, 215 mines mentioned in appendix-A to

the Report fall completely within the areas declared as

protected forest while 47 mines mentioned in Appendix-B to

tile Report fall partly inside and partly outside the areas

declared as protected forest. (These 262 mines are referred

to hereinafter as. "Listed mines"). To this extent. there

is no difference of opinion among the members of the

committee. Differing opinions have, however, been expressed

when it came to making of recommendations for the

consideration of this court. The Chairman, Shri Justice

M.L. Jain recommended that the mining operations in all the

215 mines listed in appendix-A should be stopped forthwith

and that the mining operations in the 47 mines listed

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in appendix-B should be stopped forthwith to the extent they

fell within the area declared as protected forest. Three

other members of the Committee (Collector. Always. the

Chief Conservator of Forest and Chief Wild Life Warden,

Rajasthan and the Additional Director of Mines) differed

from the Chairman. They suggested that this Court be

pleased to accept the representation of the State Government

(appended as appendix-C to the Report) wherein it was prayed

that the area covered by the mines should be allowed to be

excluded from the protected forest, in lieu of which the

Government of Rajasthan will provide an equal extent of area

for being included in the protected forest. An application

has also been filed by the State of Rajasthan to the same

effect. It is stated therein that the protected forest area

measures about 800 sq. km., whereas the 262 mines mentioned

in appendix (A) and (B) cover only an area of 2.08 sq. km.

In the interest of economy of the State, industry and the

workers engaged therein, it is submitted. an extent of 5.02

sq. km. including the area covered by the said mines be

allowed to be deleted from the protected forest. In lieu

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thereof, the Government of Rajasthan offered to place an

equal extent for the purpose of being declared as protected

forest. It is submitted further that when the mining leases

with respect to the said 262 mines were granted. the

Government of Rajasthan was under the impression that the

said mines did not fall within the protected forest area,

Indeed, it was so certified by the Forest Department. This

happened because of want of clarity about the precise

boundaries of the areas declared as protected forest.

The mine owners too have filed objections to the Report of

the Committee, to the recommendation made by the Chairman of

the Committee and submitted alternately that the proposal of

the Government of Rajasthan be. accepted and they be allowed

to continue their mining operations.

At this stage, we directed the Government of India to file

an affidavit making their stand clear in the matter.

Accordingly, an affidavit sworn to by Shri S. P. Singh,

Deputy Director in the Ministry of Environment and Forest,

Project Tiger, New Delhi has been filed. It is stated in

the affidavit that the area declared as project tiger/tiger

reserve is covered by notifications issued under the

Rajasthan Forest Act, Environment (Protection) Act, 1986 and

Mines and Minerals

32

(Regulation and Development) Act, 1957. It is submitted

that the Forest (Conservation) Act applies not only to

reserve and protected forest but to all areas recorded as

forest in Government records. Mining is non-forestry

activity and, therefore cannot be carried on in the areas to

which Forest (Conservation) Act applies without the prior

approval of the Government of India. It is stated further

that on May 7, 1992, the Government of India has issued the

final notification under Section 3 of the Environment

(Protection) Act, 1986 prohibiting all mining activity,

except with the approval of the Government of India, in the

protected forest, Sariska National Park and certain areas of

Alwar District mentioned in the Notification. Since no

permission is obtained under any of the said enactments with

respect to the said 262 mines, it is submitted, no mining

operations can be carried on in the area until and unless

they obtain the permission of the Central Government.

Indeed. the prohibition extends not merely to protected

forest areas but to the entire area declared as tiger

reserve and as Sariska National Park. A copy of the

notification dated May 7, 1992 issued under Section 3 of the

Environment (Protection) Act is appended to the affidavit.

It is necessary to notice the relevation portions of the

said notification. They read:

"Now, therefore, in exercise of the powers

conferred by sub-section (1) and clause (v) of

sub-section (2) of section 3 of the

Environment (Protection) Act, 1986 (29 of

1986) read with rule 5 of the Environment

(Protection) Rules, 1986, the Central

Government hereby prohibits the carrying on of

the following processes and operations, except

with the prior permission, in the areas

specified in the Table appended to this

Notification:

(i) Location of any new industry including

expansion/modernisation;

(ii) (a) All new mining operations including

renewals of mining lease.

(b) Existing mining leases in sanctuaries

National

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Park and areas covered under- Project Tiger- and; or

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(c) Mining is being done without permission

of the competent authority;

(iii)Cutting of trees;

(iv) Construction of any clusters of dwelling

units, farms houses, sheds, community centers,

information centres and any other activity

connected with such construction (including

roads a part of any infrastructure relating

thereto);

(v) Electrification(laying of new

transmission lines).

TABLE

Areas where carrying on of processes and operations without

permission is prohibited.

(i) all reserved forests ,protected forests

or any other area shown as "forest" in the

land records maintained by the State

Government as on the date of this notification

in relation to Gurgaon District of the State

of Haryana and the Alwar District of the State

of Rajasthan.

(ii) all areas shown as

(a) Gair Mumkin Pahar, or

(b) Gain Mumkin Rada, or

(c) Gain Mumkin Behed, or

(d) Banjad Beed, or

(e) Rundh

In the land records maintained by the State

Government as on the date of this notification

in relation to Gurgaon District of the State

of Haryana and the Alwar district of the State

of Rajasthan.

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(iii)all areas covered by notifications issued

under sections 4 and 5 of the Punjab Land

Preservation Act, 1900 as applicable to the

State of Haryana in the district of Gurgaon

upto the date of this Notification.

(iv) all areas of Sariska National Park and

Sariska Sanctuary notified under the Wildlife

(Protection) Act, 1972 (53 of 1972). "

(emphasis added)

We have heard Dr. Rajiv Dhawan, counsel for the writ

petitioner, Shri Aruneshwar Gupta, counsel for the State of

Rajasthan and S/Shri M.C. Bhandare and P. Chidambaram,

council appearing for the mine-owners. Certain other mine-

owners have intervened. We permitted them to file their

written Submissions.

Dr. Rajiv Dhawan submitted that in view of the earlier

orders of this court and the report of the committee, all

the mining activity in all the areas declared as protected

forest and in the areas notified under the notification

dated May 7, 1992 should stop forthwith. Indeed, he says,

it should have stopped long ago. Continuance of mining

activity is in gross contempt of this court and constitutes

a clear violation of its orders. The Government of

Rajasthan is equally guilty of contempt in as much as it has

come forward with an application for directions instead of

taking stringent action forthwith to stop the mining

activity in all the listed mines. As a matter of fact, he

says, the Government of' Rajasthan appears to be colluding

with the mine-owners which is evident from the dissent

expressed by the officers of the Rajasthan Government (who

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were members of the Committee appointed by this Court) to

the straight-forward and logical recommendation of the

Chairman of the Committee. The Government of India's

affidavit places the matter beyond doubt. Not only the

mining operations in the listed mines should be injunction

forthwith but the mine owners and the Government of

Rajasthan should be proceeded against for contempt says the

counsel. He pointed out further that the mining leases

granted by the Government of Rajasthan are ex-facie illegal

inasmuch as prior permission of the Central Government was

admittedly not obtained for the said leases as required by

the Forest (Conservation) Act and Rule 4(6) of the Rajasthan

Minor Mineral Concession Rules. Prohibition of

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mining flows from the provisions of the Forest

(Conservation) Act as, well as the notification issued under

the Environment (Protection) Act in May, 1992.

Shri Aninseshwar Gupta, learned counsel for the State of

Rajasthan submitted that the Rajasthan Government and its

officers were not aware, when they granted leases/licences

in respect of listed mines that they fell within the area

declared as protected forest. Indeed, a certificate was

issued by the Forest Department to the effect that they did

not fall within the protected forest area. It was thus a

bonafide grant. The boundaries of the areas declared as

protected areas were not clearly known nor were they

demarcated on the spot. Of course, it now turns out that

the said listed mines fall wholly or partly within the

protected forest but for the reasons mentioned in the

application filed by the Government of Rajasthan, the area

of five sq. kilometers should be allowed to be deleted from

out of the protected forest subject to the conditions

offered in the said application. Counsel says that the

Government of Rajasthan is neither colluding with the mine-

owners nor has it any intention to flout the orders of the

court. It is prepared to abide fully by the orders of this

court. It has already shut down 54 mines. It is also

prepared to shut down all the other listed mines if this

court so directs. It is. however, making an earnest request

that it may be allowed to exclude the areas covered by these

mines from the protected forest in public interest. Learned

counsel has placed before us map, said to have been prepared

by the officers of the Rajasthan State, showing the areas

covered by tiger reserve, sanctuary, protected forest and

the location of the listed mines.

Shri M.C. Bhandare, learned counsel appearing for the mine-

owners in Mallana village submitted that demarcation of

protected forest by the committee is defective, erroneous

and unacceptable for the various reasons set out in the

objections filed by his clients. It is technically

imperfect. The very description of the boundaries in the

notification dated January 1, 1975 is vague and misleading.

It mentions old khasra numbers which were not in vogue in

the year 1975.The map produced by the Government of

Rajasthan, for the perusal of this court, delineating the

tiger reserve is equally incorrect besides being

unauthenticated. It is not know who prepared the map and on

what basis. The mine-owners do not admit that their mines

fall within the

36

tiger reserve or within the protected forest areas. Closing

down hundreds of mines employing thousands of workers,

wherein a large amount of capital is invested would disturb

the economy of the State besides affecting the supplies of

marble and other minerals. No public purpose would be

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served by such closure. The mine owners are not guilty of

contempt of this court inasmuch as their mines do not fall

within the protected forest or protected area. Even

otherwise, it appears that the areas declared as protected

forest are in disparate patches away from each other. Mines

are located not only within the areas declared as protected

forest but also in the adjacent areas which are not declared

as protected forest. In such a case, no purpose is served

by closing the mines within the protected forest inasmuch as

the mining activity in the mines located outside the

protected forest will continue uninterrupted. The purpose

of ecology and environment would not be served by such a

situation. Moreover, the notification issued by the

Government of Rajasthan on January 1, 1975 declaring certain

areas as protected areas is only a provisional or an interim

notification. It is not a final notification. The final

notification is yet to be issued. Since there is no forest

in the areas covered by the mines nor is any afforestation

possible in such areas, they should be allowed to be deleted

from the protected forest in the final notification to be

issued.

Shri P. Chidambaram, learned counsel appearing for some of

the mine-owners submitted that it is unsafe for this court

to act upon and/ or to pass any orders based upon the map

produced by State of Rajasthan showing the tiger reserve and

identifying the areas declared as protected forest. It is

not known who prepared the said map and on what basis and

for what purpose. The declaration as tiger reserve by the

Government of India is not under any statutory authority.

The area declared as tiger reserve and the area notified as

sanctuary under Section 18 of the Wildlife (Protection) Act,

as also the area declared as National Park under Section 35

of the Wildlife (Protection) Act are not co-extensive with

each other. More particularly, the areas declared as

protected forest are not co-extensive with the area declared

as tiger reserve, sanctuary or National Park. It is not

known how many areas declared as protected forest fall

within tiger reserve and how many in the sanctuary and/or

National Park. The Government of India has not prepared or

submitted any map showing these various areas. None of

37

the mines fall within the sanctuary or the National Park,

not even within project tiger. In such a situation, any

orders stopping the mining operations merely on the basis of

the report of the commission or the unauthenticated map

produced by the Government of Rajasthan would be wholly

unsafe. The proper course would be to appoint a committee,

or to call upon the Government of India, to identify the

areas declared as tiger reserve, sanctuary, National Park

and the areas declared as protected forest indicating at the

same time the location of mines, if any, in the said areas.

Only then will the correct position be known. Counsel also

submitted that the proposal of the Government of Rajasthan

merits acceptance by this court. Both the counsel appearing

for the mine-owners affirmed that the mine-owners are not

acting in a spirit of adversarial litigation but in a spirit

of cooperation. They are as much interested in protecting

the environment and ecology as the petitioner but, they say,

it should not be a one-sided affair.

At the outset we may be permitted to clarify an aspect.

This is not a case where we are called upon to shut down an

activity being carried on lawfully, in the name of higher

considerations of ecology and environment. This is a simple

case where we are called upon to ensure observance of

enacted laws made by the State to protect the environment

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and ecology of the area. In such a case, we need not be

oppressed by considerations of balancing the interests of

economy and ecology. Mat has already been done by the

Legislature and Parliament. The grievance of tile

petitioner is against the executive. Charged with the

delegation of implementing the laws of the land, the

executive is yet failing to do its duty by law and by

people, when faced with the might of money; respect for law

is dissolving into respect for gammon says the petitioner.

Let us therefore first find out which laws are violated, if

any, and then decide, what are the proper directions to

make.

(A) Section 2 of the Forest(Conservation)Act read with

Section 29 of the Rajasthan Forest Act and Rule 4 (6) of the

Rajasthan Minor Mineral Concessions Rule.

Section 29 of the Rajasthan Act empowers the Government to

declare any forest land or waste land to be a protected-

forest. Subsection (1) says that, "the State Government may

by notification in the official gazette declare the

provisions of this chapter applicable to any

38

forest land or waste land which is not included in a reserve

forest hut which is the property of the State Government or

over which the State Government has proprietary rights" It

is not disputed in this case that the land over which the

listed mines (mines listed in Appendix A and to the Report

of the Justice M.L. Jain Committee) are situated is the

property of the State Government. The State Government is

empowered not only to declare any forest land as a protected

forest but also any waste land as such. The idea evidently

is not only to protect the existing forest hut also to bring

waste lands under schemes of afforestation. Once declared

as protected forest the distinction between forest land and

waste land disappears. The entire area becomes a protected

forest. Before, however, declaring any forest land or waste

land as a protected forest, the State Government is obliged

to make an enquiry into the nature and extent of the rights

of the State Government and of private persons in or over

the forest land or waste land proposed to be declared as

protected forest and record the same at a survey or

settlement or in such other manner as the State Government

thinks sufficient. This is the requirement of sub-section

(3). However, the proviso to sub-section (3) empowers the

State Government, in case it thinks that such an enquiry and

record will occupy such length of time as in the meantime to

endanger the rights of the State Government, it may, pending

such enquiry and record, declare a particular area to be a

protected forest without, of course, abridging or affecting

any rights of individuals or communities. Sub-section (4)

empowers the State Government to delete any area from out of

the area declared as protected forest. Reading Section 29

as a whole, it appears, the normal rule is to make an

enquiry into the rights of the State Government and of the

private parties over the land proposed to be declared as

protected forest in the first instance, prepare a record

thereof and then declare it as a protected forest. But in

case of urgency it is open to the State Government to issue

such notification forthwith subject, of course, to the

existing rights of individuals and communities in the area

concerned. In this case, the notification dated January 1,

1975 issued by the Government of Rajasthan appears to be one

issued under the proviso to sub-section (3). Sri Bhandare

submits that a notification issued under the proviso to sub-

section (3) is only an interim or provisional notification

and that after conducting the enquiry contemplated by the

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main limb of sub-section,(3) a regular and proper

notification under sub-section (1) has still to be issued.

Until then, he submits, the declaration as protected forest

does not take effect. We are not

39

prepared to agree. Section 29 contemplates only one

notification declaring an area as a protected forest.

Whether issued after a normal enquiry and record or without

enquiry or record, Section 29 contemplates only one

notification and not two in any event. Therefore, the

notification issued is the valid and effective one. It is

not a provisional or preliminary notification. It is not

also the case of the mine-owners that leases or licences in

their favour were granted prior to January 1, 1975. All of

them were granted in the middle of or in the late eighties.

The savings clause contained in the proviso to sub-section

(3) does not avail them.

In view of the ambiguity prevailing with respect to the

precise boundaries of the area or areas declared as

protected forest under the notification dated January 1,

1975, the Justice M.L. Jain committee was appointed by this

court to demarcate and identify the areas declared as

protected forest under the said notification, with the help

of the Revenue and Forest Departments of the State of

Rajasthan. It has done so. Besides being headed by a

former Judge of the Rajasthan High Court, it was composed of

high officials of the Government of Rajasthan. They have

undertaken an elaborate and intensive exercise and have

demarcated the areas declared as protected forest with the

help of the official maps and records. We see no reason not

to accept the said report. The several objections submitted

by the mine-owners cannot prevail over the official maps and

records. They were represented before the Commission at the

time of the said exercise. It is significant to notice that

the dissent note appended by the officers of the Government

of Rajasthan was not with respect to the demarcation or

identification of areas declared as protected forest, but

only with respect to the closure of the mines operating

within those areas. The report of the committee is

accordingly accepted herewith.

Once an area is declared as a protected forest, it comes

within the purview of the Forest (Conservation) Act, 1980.

It becomes a forest land within the meaning of Section 2.

The effect of this position is that no non-forest activity

can be carried on in the said area except with the prior

approval of the Central Government. Even the State

Government cannot carry on any such non-forest activity in

the said area without such prior approval. That the mining

activity amounts to non-forest purpose is beyond dispute.

Thus, the grant of mining leases/licences

40

and their renewal by the State Government. without obtaining

the prior approval of the Central Government, in respect of

the mines situated within the protected forest, after

January 1, 1975 is contrary to law. All the mines listed in

Appendix A to the committee's report do fall within the

areas declared as protected forest while the mines listed in

Appendix B fall partly within and partly outside such areas.

According to Rule 4(6) of the Rajasthan Minor Mineral

Concession Rules, 1986 too, no mining )ease could have been

granted or renewed within the forest "without clearance from

the Central Government. in accordance with the Forest

(Conservation) Act, 1980 and the Rules made thereunder".

Admittedly, no such prior approval or clearance of Central

Government was obtained. The Chairman of the Committee, Sri

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justice M.L. Jain has recommended that 215 mines mentioned

in appendix A to his report, which are situated wholly

within the protected forest should he closed forthwith.

There can hardly be any valid objection in law to the said

recommendation. Similarly, with respect to 47 mines

mentioned in appendix-B to the report, the learned Chairman

has recommended that they should be closed forthwith in so

far as they fall within the protected forest. To this

recommendation also, there can be no valid objection in law.

At this stage, it would be appropriate to consider the

application filed by State of Rajasthan for permission to

delete an extent of 5.02 sq. Km. from out of the protected

forest. The application is confined only to 208 mines out

of 262 listed mines. 54 mines mentioned in para (9) of the

application are proposed to be closed: indeed, according to

the counsel for the State, they have already been closed.

Reliance is placed upon the order dated May 14, 1992 in this

behalf. It is pointed out that the said order does

contemplate such modification, of course, with the

permission of this Court and for valid reasons. It is

pointed out that for such deletion or modification, the

prior approval of the Central Government is not required.

No such requirement is prescribed either in the Forest

(Conservation) Act or Rajasthan Forest Act, it is submitted.

In this context, the submission of Sri M.C. Bhandare may

also be considered. He says that there are a number of

mines around and outside the area declared as protected

forests and that no purpose would be served by merely

closings the mines within the protected forest and leaving

those outside unhindered. He says that all these mines

within and outside, are within the tiger reserve, as per the

Rajasthan Government map though outside the sanctuary. May

be so.

41

But it cannot he forgotten that purpose of Forest Acts and

purpose of Environmental Protection Acts may not always be

the same. Such closure may not serve the environmental

purpose-assuming that factual situation asserted by the

learned counsel is true, upon which aspect we need not and

do not make any pronouncement but it may serve the forest

purpose. Be that as it may, both the purposes appear to be

intertwined in this case.In this situation, we think it

appropriate that the merits of the said proposal be examined

by the Ministry of Environment and Forests, Government of

India and a report submitted to this Court, within three

months from today. Orders will be passed on the application

for directions filed by the State of Rajasthan after

considering tile said report.

(B) Notification issued by the Central Government under

Section 3 of the Environment (Protection) Act, 1986 on May

7, 1992:

This notification expressly prohibits the carrying on of the

mining operations, except with the Central Government's

prior permission, in the "areas covered under project

tiger". The prohibition extends to existing mining leases

in Sanctuaries/National Park. All mining operations are

prohibited therein. The table appended to the notification

particularises the areas where carrying on the processes and

operations aforesaid is prohibited without the permission of

the Central Government. They include all reserve forest.

protected forest or any other area shown as forest in the

land records maintained by the State Government as on the

date of the issuance of tile said notification in relation

to inter alia Alwar district of the State of Rajasthan. The

table also includes "all areas of Sariska National Park and

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Sariska Sanctuary notified under the Wildlife (Protection)

Act, 1972 (53 of 72)". we cannot agree with the learned

counsel for mine-owners that the area declared as project

tiger in the Alwar district has not been properly identified

or that it is not properly identifiable. Both the State

Government and Central Government have demarcated them in

exactly identical manner. The map produced before us by the

State Government is a detailed plan, prepared with great

care. There is no reason to presume that it is not prepared

by competent persons on the basis of the relevant material.

The map delineates the area declared as sanctuary within the

area declared as tiger reserve. The location of listed

mines is clearly marked. They fall within the tiger

reserve-

42

though outside the sanctuary. A publication by the Forest

Survey of India. Dehradun. Ministry of Environment and

Forest, Government of India,entitled 'Status of Forest

covering in Project' Tiger Reserve has been placed before

us. At pages 92-94. we find the map of Sariska 'Tiger

reserve, Rajasthan. The boundaries, shape and dimensions of

the said map tally fully and perfectly with the map prepared

by the State of Rajasthan. Thus, there can be no legitimate

dispute with respect to the correctness of the map produced

by Government of Rajasthan or with respect to the area

declared as tiger reserve. Both the State Government and

Central Government have delineated it. May be that the

declaration as tiger reserve was without any statutory

authority and is relatable to the executive power of the

Union of India-but tile notification issued under Section 3

of the Environment (Protection) Act puts the stamp of

statutory authority over it. The Central Government has

specifically stated in its affidavit that no "prior

permission was obtained with respect to the mines located

within the tiger reserve. On this ground, the mining

operations being carried on in the tiger reserve, including

the listed mines also, appears to be contrary to law of

course, this notification has come only in May, 1992.

Now coming to the appropriate directions to be made in this

behalf, it should be borne in mind that there is a

distinction between the listed mines and those mines which

are situated outside (he protected forest but within the

tiger reserve. So far as the listed mines are concerned,

the very grant and renewal of those mining lease/licences is

itself illegal. These areas were declared as protected

forest is far back as January 1, 1975. If so no mining

lease or licence could have been granted in respect of the

mines situated within the protected forest without clearance

from the Central Government as required by Rule 4(6) of the

Rajasthan Minor Mineral Concession Rules and without prior

approval of the Central Government under section 2 of the

Forest (Conservation) Act, 1980. It is an admitted fact

that all these leases and licences were granted after 1980.

There is also (he order of this Court dated October 11, 1991

directing that "no mining operation of whatever nature shall

be carried on in the protected area"-Protected area does,

without a doubt, include the areas declared as protected

forest). The recommendation of the Chairman of the

Committee, Sri justice M.L. Jainisal so to the effect that

the mining activity in the listed mines should be stopped

forthwith. Even with respect to the mines in appendix-B

(which partly full within and partly outside the protected

43

forest areas) the recommendation of the Chairman is that

they should he closed to the extent they fall within the

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protected forest. The Central Government has also taken the

stand that the mining activity in these areas is illegal and

cannot PO on. As against this is the plea of the Rajasthan

Government and of the mine-owners that the area covered by

these mines should be allowed to be deleted/ excluded from

the protected forest in lieu of their offer to include an

equal extent of area within the protected forest. We do not

propose to express any opinion on this plea of the Rajasthan

Government and the mine-owners for the reasons recorded

hereinbefore. We would like to have the opinion of the

Central Government on the said plea or proposal, as it may

be called, Only thereafter shall we consider the request of

the State Government. But is on today, the situation is

that the mining activity in the listed mines (according to

the Rajasthan Government, it has already stopped all mining

activities in 54 mines specified in its application) is

illegal and has to stop. May be that this will have the

effect of mining to halt the activity involving a good

amount of capital and a large number of workers. But in

view of the inherent illegality attaching to them, indicated

hereinbefore. we have no option but to close them. We

cannot permit them to operate. If and when the central

government recommends the plea of the State Government and

any of the areas already declared as protected forest are

deleted with leave of this court, can the mining activity go

on in these areas. It is accordingly directed that all

mining activity in the mines mentioned in appendix A to the

report of Sri justice M. I-. Jain Committee shall stop

forthwith. Similarly, the mining activity in the mines

mentioned in appendix-B to the said report shall also stop

forthwith in so far as they fall within the protected forest

areas. 'The plea of the Rajasthan Government and of' the

mine-owners shall he considered by Department of Forest and

Environment, Government of India and report submitted to

this Court within three months.

Now coming to the mines located outside the protected forest

areas but within the tiger reserve, it cannot be said that

the very grant of mining lease/licence is itself illegal in

their case- unless, of course, such mining lease/ licence or

its renewal has been granted on or after May 7,1992

(particulars in this behalf are not made available to us).

The illegality has attached to these mines by virtue of the

notification issued by the central government under Section

3 of the Environment

44

(Protection) Act on May 7,1992. In the circumstances, it is

directed that the mining activity in the mines situated

outside the protected forest areas but within the tiger

reserve may continue for a period of four months. Within

this period it shall be open to the concerned mine owners to

approach the Department of Forest and Environment,

Government of India for permission to continue their mining

operations. They can continue the mining operations in

these mines only if the central government permits them and

subject to the orders of the central government in that

behalf. If no permission is obtained from the central

government within the said period of four months, the mining

activity in the entire area declared as tiger reserve shall

stop and cease on the expiry of four months.

List this matter for further orders on July 12, 1993.

N. V. K. Petition Pending

45