By Vaibhavi Pedhavi ~ Gujrat National Law University, Gandhinagar.
Name of the Petitioner: Tarun Bharat Sangh, Alwar
Respondent: Union of India and others
Citation: 1993 Supp (3) SCC 115
Equivalent Citation: 1993 SCR (3) 21
Decided by: Justice B.P. Jeevan Reddy & Justice N. Venkatachala
The present case is related to illegal mining in the Alwar District of Rajasthan. Tarun Bharat Sangh is a voluntary organization interested among other things in the protection of the environment, filed a writ petition under Article 32 of the Constitution of India regarding the illegal mining activity that was taking place in an area declared as a tiger reserve under Rajasthan Wild Animals and Birds Protection Act, 1951 and as a protected forest under the Rajasthan Forest Act, 1953.
The Petitioners submitted that the Rajasthan government had granted licenses to allow for mining marble, dolomite, and other minerals in the concerned area, which was contrary to law. The Court issued notices to the Government of Rajasthan and the mine-owners who were the respondents in the case. On October 11, 1991, the Court issued an interlocutory direction to the effect that “no mining operation of whatever nature shall be carried on in the protected area.”
A committee under the chairmanship of Justice M. L. Jain (former judge of the Rajasthan High Court) was appointed to ensure the due observance of the various acts and notifications issued with respect to the said protected area. The Committee demarcated and identified the areas, which were declared as protected forest. The Committee after tracing maps that were furnished by the forest department and the Revenue Department found that the mines were comprised in several areas. According to the Committee, 215 mines listed in Appendix-A of the report fell within the areas of declared forest, and 46 mines listed in Appendix-B fell partly inside and partly outside the areas declared as protected forest. Furthermore, the Committee recommended that the mining operations in mines listed in Appendix-A and in areas declared as protected forest under Appendix-B should be stopped.
Arguments by the Parties
- Arguments submitted by the by the petitioners
Dr. Rajeev Dhavan, who represented the petitioners, submitted, “All the mining activities in the areas which were declared as a protected forest should stop forthwith keeping in view of the earlier orders of this Court and the report submitted by the Committee”. The Petitioners pointed out that the mining lease which were granted by the Rajasthan Government were ex facie illegal since no prior permission was obtained from the Central government as mandated under the Forest (Conservation) Act and rule 4(6) of the Rajasthan Minor Mineral Concession Rules. The Petitioners further argued that continuance of such mining activity was in the nature of contempt of court as it clearly violated the Court’s order. The Petitioners also submitted that the Government of Rajasthan was equally guilty of contempt of court, as they did not take stringent actions against the mine-owners.
- Arguments submitted by the respondent state
On behalf of the State of Rajasthan, Shri. Aruneshwar Gupta submitted that according to the certificate issued by the forest department, the said area did not fall within the protected forest area. The respondents argued that the protected areas were not clearly known, as there was no demarcation on the spot. The respondents further pointed out that the Government of Rajasthan had already shut down 54 mines and therefore, it was evident that they did not collude with the mine-owners nor did they have any intention to flout the orders of the Court. The Counsel for the respondents further requested the Court to exclude the areas of the mines from the protected forest in the public interest.
- Arguments submitted by the mine-owners of Mallana village
Shri M. C. Bhandare who appeared on behalf of the mine-owners of Mallana village submitted that the demarcation of the protected forests by the M. L. Jain Committee’s report was defective, erroneous, and unacceptable. Furthermore, the Counsel submitted that description of the boundaries in the notification dated January 1, 1975, were vague and misleading. The map produced by the Government of Rajasthan which delineates tiger reserve was equally incorrect and therefore submitted that the mine-owners did not admit that their mines fell within the protected forest areas. Finally, the respondents contended that the notification issued by the Government of Rajasthan on January 1, 1975, was only an interim notification that declared certain areas as protected areas and that the final notification was not issued yet. The respondents believed that due to the reasons as mentioned earlier, the mines should be deleted from the areas declared as protected forests in the final notification that was to be issued.
Shri P. Chidambaram, who appeared on behalf of some of the mine-owners, in this case, submitted that it would be unsafe for the Court to act upon any orders based on the maps produced by the Rajasthan government. Furthermore, he pointed out that the powers to declare of an area as a tiger reserve by the Government of India does not come under any statutory authority and hence, it was necessary to appoint a committee or to call upon the Government of India, to identify the areas declared as tiger reserves, sanctuary’s, National Parks and the areas that are to be declared as protected forests.
Court’s decision with Reasoning
The following are the observations of the Honourable Supreme Court concerning each of the issues framed
- Whether the area where mining activity was carried on, was a ‘protected forest’?
Section 29 of the Rajasthan Forest Act empowers the state government to declare any forestland or wasteland as a protected forest. Sub-section (1) states that “the State Government may by notification in the Official Gazette declare the provisions of this chapter applicable to any forest land or wasteland which is not included in a reserve forest but which is the property of the State government or over which the State government has proprietary rights.” The land that was discussed in the case is the property of the state government. The Court held that the notification that the respondents contended as an interim notification was not preliminary or provisional and hence it was valid and effectual as section 29 contemplated that “only one notification declaring an area as a protected forest.”
- Whether the report submitted by Justice M. L. Jain Committee, which was appointed by the Court to determine the boundaries of areas that have been declared as the protected forest, were invalid?
The Court observed that the main aim of the Committee was to demarcate and identify the areas declared as protected forest under the notification issued on January 1, 1975. The Committee was composed of high officials of the Government of Rajasthan and was headed by a former judge of the Rajasthan High Court. The Court held that “the Committee has undertaken an elaborative and intensive exercise and have demarcated the areas declared as protected forest with the help of official maps and records.” Therefore, the Court did not find any reason not to accept the said report.
- Whether a prior approval from the central government necessary for mining activities in the said area? And if yes, when was it taken by the mine-owners?
The Court observed that once an area was declared as a protected forest, it came under the purview of the Forest (Conservation) Act, 1980. According to section 2 of the act, the area was a forestland, and therefore, no non-forest activity could be carried out in the area except “with the prior approval by the Central government.” Even the state government was not allowed to carry on any such activity without prior approval from the Central government. According to Rule 4(6) of the Rajasthan Minor Mineral Concession Rules, 1986, “no mining lease could be granted or renewed without clearance from the Central Government under the Forest (Conservation) Act, 1980 and the rules made thereunder.” Therefore, the Court held that mining activities after January 11, 1975, were illegal.
- Whether the application filed by the State of Rajasthan to delete an extent of 5.02 Sq. Km. from the protected forest was valid?
The application filed by the Rajasthan state government was confined only to 208 mines out of 262 mines. R. C. Bhandare who appeared on behalf of the mine-owners submitted that there were several mines around and outside the area of the declared forests and no purpose would be served if the mines under the protected areas would be closed and mines, which are within the tiger reserve, would be opened. Therefore, the Court opined that said proposal was to be examined by the Ministry of Environment and Forests, Government of India and a report on the same was to be submitted to the Court within three months.
- Whether the map produced by the Rajasthan Government concerning the tiger reserve was valid?
The Court stated that the state government approached the Supreme Court with a detailed plan, and the map was prepared with great care. The Court rejected the Counsel’s contention that the area declared as a tiger reserve in Alwar district was not correctly identified. The Court held that both central and the state governments had demarcated the area properly and hence, there was no legitimate dispute concerning the correctness of the map.
- Whether the mining activity within the tiger reserve but outside the protected forest areas was illegal?
The Court on this question observed that the mining activities outside the protected forest areas but within the tiger reserve after May 7, 1992, was illegal. The Court further added that if there was any illegality attached to the mines that came under the tiger reserve but outside the protected forest areas, the concerned mine-owners should approach the Department of forest and Environment, Government of India, for permission to continue mining operations in those mines only.
The present can be considered as one of the landmark cases against state agencies wherein the executives failed to perform the proper enactment of the law of the land, particularly concerning environment protection. The Court observed, “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 consideration of ecology and environment.” The Court, in this case, proved that “protection and improvement” would prevail if the laws were violated.