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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 22 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 23 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 24 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. 25 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 26 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) 27 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 28 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 29 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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30 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 31 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               33               (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.               34               (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 35 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