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2000 DIGILAW 155 (RAJ)

State of Rajasthan v. Ram Dulari

2000-02-08

ARUN MADAN

body2000
Honble MADAN, J.–In all aforesaid seven revision petitions the controversy involved is one and the same, hence it has been thought proper to deal with and decide these petitions by way of this common order after they are heard for being finally disposed of. (2). All these revision petitions have been preferred against order dated 22.1.2000 (impugned) passed by the learned Civil Judge (SD) Jaipur District Jaipur on the respective application filed by the plaintiffs (who are respondent No.1 in these revision petitions) (for short `plaintiffs) in their respective civil suit. The suit for permanent injunction & declaration alongwith application for temporary injunction was filed on the averments inter alia that mining lease had been created by the Department of Mines and Geology, Government of Rajasthan Jaipur (proforma respondent herein) in respect of the land within jurisdiction and ambit of forest area and as per covenants of the said lease, plaintiffs were permitted to carry on mining activity for a period of two years subject to the terms and conditions besides payment of dead rent as stipulated in the lease for carrying out excavation of minerals over the area in question. It has been prayed in the plaint that the defendants be restrained by issuing permanent injunction from interfering in the broken up area and from creating obstacles in operation of mines, and further that operation of orders dated 4.1.2000 and 10.1.2000 be also stayed. A declaration was also sought. To the above effect temporary injunction was also sought in the application. (3). It is the case of the petitioners that after service of the notices upon the defendants, the learned trial Court dismissed the application for temporary injunction on 22.1.2000 but thereafter another application was moved by the plaintiffs at the back of the defendants, whereupon defendant petitioners were not issued any notice of that application but the learned trial Court passed an order on 22.1.2000 directing the defendants petitioners to allow the plaintiffs to remove machinery used in mining activity and minerals already excavated but lying on the mining land in dispute within seven days. However, it was directed that the plaintiffs shall not carry on any further mining activity over the land in question. Hence these revision petitions have been filed by the State Government against the aforesaid order dated 22.1.2000 passed in each of the respective applications of the plaintiffs. (4). However, it was directed that the plaintiffs shall not carry on any further mining activity over the land in question. Hence these revision petitions have been filed by the State Government against the aforesaid order dated 22.1.2000 passed in each of the respective applications of the plaintiffs. (4). During the course of hearing, the learned counsel for the State petitioners assailed the sustainability of the impugned order passed by the learned trial Court on the grounds inter alia that as per the decision of the Apex Court in T.N. Godavarman vs. Union of India (1) having regard to the significance of the points involved in respect of the matters relating to the protection and conservation of the forests throughout the country, it was considered necessary that the Central Government as well as the Governments of all the States should be given certain specific direction. Accordingly the Apex Court issued notice and decided matter finally by its judgment dated 12.12.1996 in Writ Petition (Civil) Nos. 202 of 1995 with 171 of 1996 at interim stage. Having regard to the meaning of the word, `forest in the Forest Conversation Act, 1980, which was enacted with a view to check further deforestation which ultimately results in ecological imbalance, the Apex Court observed that the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof, and the word `forest must be understood according to its dictionary meaning which covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2 (i) of the Act, 1980. From the perusal of term, `forest land in Section 2, it has been defined to include not only `forest as understood in the dictionary sense but also any area recorded as forest in the Government record irrespective of the ownership. The Apex Court then observed as under: ``We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this Court. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this Court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay. ``5. We further direct as under:- I. General 1. In view of the meaning of the word `forest in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any `forest. In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills, and mining of any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. (5). Apart from the above, it was further directed that the felling of trees in all forests is to remain suspended except in accordance with the Working Plans of the State Governments as approved by the Central Government. In the absence of any Working Plan in any particular State, such as Arunachal Pradesh, where the permit system exists, the felling under the permits can be done only by the Forest Department of the State Government or the State Forest Corporation. (6). It has also been directed by the Apex Court that there shall be a complete ban on the movement of cut trees and timber from any of the seven North-Eastern States to any other State of the country either by rail, road or water-ways. The Indian Railways and the State Governments were also directed to take all measures necessary to ensure strict compliance of this direction. This ban was directed not to be applied to the movement of certified timber required for defence or other Government purposes and affected to felling in any private plantation comprising of trees planted in any area which is not a forest. (7). The Apex Court also directed as under:- ``5. This ban was directed not to be applied to the movement of certified timber required for defence or other Government purposes and affected to felling in any private plantation comprising of trees planted in any area which is not a forest. (7). The Apex Court also directed as under:- ``5. Each State Government should constitute within one month an Expert Committee to: (i) identify areas which are ``forests irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land of such forest; (ii) identify areas which were earlier forests but stand degraded, denuded or cleared; and (iii) identify areas covered by plantation trees belonging to the Government and those belonging to private persons. 6. Each State Government should within two months, file a report regarding: (i) the number of saw mills, veneer and plywood mills actually operating within the State, with particulars of their real ownership; (ii) the licensed and actual capacity of these mills for stock and sawing; (iii) their proximity to the nearest forest; (iv) their source of timber. 7. Each State Government should constitute within one month, an Expert Committee to assess: (i) the sustainable capacity of the forests of the State quo saw mills and timber based industry; (ii) the number of existing saw mills which can safely be sustained in the State; (iii) the optimum distance from the forest, qua that State, at which the saw mill should be located. (8). Each State Government was directed to constitute a Committee comprising of the Principal Chief Conservator of Forests and another Senior Officer to oversee compliance of this order and file status report. (9). In T.N. Godavarman vs. Union of India (supra) when writ petitions came up for hearing before the Apex Court on 4.3.1997 (reported in AIR 1997 SC 1233 = 1997 (3) SCC 312 ), the directions already given by the Apex Court on 12.12.1996 (supra) were confirmed on the ground that no substantial variation is required to be made. However, a High Power Committee was directed to be constituted by respective State Governments to oversee strict and faithful implementation of the orders of the Court. All unlicensed saw mills, veneer and plywood industries in the State of Maharashtra and the State of Uttar Pradesh were directed to be closed forthwith. However, a High Power Committee was directed to be constituted by respective State Governments to oversee strict and faithful implementation of the orders of the Court. All unlicensed saw mills, veneer and plywood industries in the State of Maharashtra and the State of Uttar Pradesh were directed to be closed forthwith. The timbers held by the private parties in their stock purchased from the J & K State Forest Corporation were permitted to be moved and the stocks of kail, chir and fir in the depots of the Forests Corporation were permitted to be disposed of by the Forest Corporation. The Apex Court in mining matters directed in para 9 (p. 315) as under: (1) where the lessee has not forwarded the particulars for seeking permission under the FCA, he may do so immediately; (2) the State Government shall forward all complete pending applications within a period of 2 weeks from today to the Central Government for requisite decisions; (3) applications received (or completed) hereafter would be forwarded within two weeks of their being so made. (4) the Central Government shall dispose of all such applications within six weeks of their being received. Where the grant of final clearance is delayed, the Central Government may consider the grant of working permissions as per existing practice. (10). Apart from the above directions, the Apex Court further clarified that the orders passed by it in the matters which were heard and decided by its order dated 12.12.96 as well as order dated 4.3.1997 should be obeyed and carried out by the Union Government as well as State Governments notwithstanding any order or directions passed by the Court including High Court or Tribunal, to the contrary. Registrar General of the Apex Court was further directed to communicate the aforesaid two orders to the Registrars of all the High Courts to ensure strict compliance. (11). The learned counsel for the petitioners placed reliance upon the order dated 21/23.1.1998 (xerox copy produced before this Court during hearing) of the Ministry of Environment and Forests, Government of India New Delhi, addressed to the Secretary (Forests) Government of Rajasthan Jaipur, wherein the Central Government has given its approval for diversion of 390.524 ha. (11). The learned counsel for the petitioners placed reliance upon the order dated 21/23.1.1998 (xerox copy produced before this Court during hearing) of the Ministry of Environment and Forests, Government of India New Delhi, addressed to the Secretary (Forests) Government of Rajasthan Jaipur, wherein the Central Government has given its approval for diversion of 390.524 ha. in favour of 34 mine owners for a period of two years only, with further direction to the State Government to ensure the closure of the mining operation in the area within two years and an interim report on the action taken to ensure this was sought to be sent after one year. (12). Alternatively, it was contended by the learned Additional Advocate General that no such directions could be given by the State Government by passing orders on different dates after lapse of prescribed period as referred to above or to consider its competency by the civil courts contrary to the above stated directions of the Apex Court. (13). On the other hand, Shri A.K. Sharma learned counsel for the plaintiffs (mining lessees) supported the impugned orders and it has been contended that by the impugned orders, the learned trial Court has restrained all the plaintiffs from doing any mining activity or from carrying out any operations over the mining land and the permission given by the learned trial Court pertains only to remove machinery and minerals already excavated but lying on the disputed area of mining operations that too within seven days, therefore, it cannot be said that the impugned orders are against the directions of the Apex Court in T.N. Godavarmans case (supra). According to Shri Sharma, even after expiry of mining lease period, the mining lease holders are entitled to remove their machinery and minerals already excavated but lying at respective sites before the closure of the mining operations or after expiry period of their lease, and in this regard the learned counsel placed reliance upon the provisions contained in Rule 18 (22) of the Rajasthan Minor Mineral Concession Rules, 1986 (for short, Mineral Rules) and Mining Lease Form No. 5. (14). I have heard learned counsel for the parties at length and perused the impugned orders with reference to the legal position. (14). I have heard learned counsel for the parties at length and perused the impugned orders with reference to the legal position. Prima facie, I am of the considered opinion that under the direction given by the Apex court in its decision as discussed above it was not open for the civil court or to the State Government to give directions contrary to the decision of the Apex Court by extending time in favour of aggrieved parties and to remove the mining articles. However, the only question which requires to be examined is as to whether in view of the specific statement made by the learned counsel for the plaintiff/respondent at the bar having regard to the fact that no mining activity has been or is being carried out at the disputed site in faithful compliance of the direction of the Apex Court and the limited prayer made by he learned counsel on behalf of the respondent whether the concerned applicants can be permitted to plaintiffs to remove articles and machinery and excavated minerals lying at the site in consonance with the letter and spirit of the Mineral Rules of 1980? (15). It has not been disputed at the bar that mining activities over the disputed area stand completely closed. I am of the view that the foremost question as per controversy which arises for consideration in these seven petitions after hearing learned counsel for the parties is as to whether the plaintiffs (who are respondent No.1 in these petitions) were rightly permitted by the learned trial Court under the impugned orders to remove machinery and excavated minerals already lying over their respective mining lease areas within seven days by issuing direction to the petitioners and whether it would not amount to violation of the direction given by the Apex Court in T.N. Godavarman vs. Union of India (supra). (16). I have carefully perused the impugned orders passed in above noted petitions which contains one and the same direction. (16). I have carefully perused the impugned orders passed in above noted petitions which contains one and the same direction. Prima facie I am of the view that the sole object of passing the impugned order was to prevent the plaintiffs from carrying on any mining operations over their respective mining lease area, in strict compliance and adherence to the directions of the Apex Court in T.N. Godavarmans case (supra), and that being so, restraining the plaintiffs from doing any mining operations, seven days time has been granted by the learned trial court under the impugned orders to remove their machinery and already excavated minerals lying over their respective mining lease area. This in my considered view does not warrant any interference by invoking Section 115, CPC, because there is no jurisdictional error of the trial Court nor any miscarriage of justice is going to be caused. Since the prayer is limited to removal of articles lying at disputed sites and not to carry on any mining activity which stands completely stopped on determination and termination of the lease, itself. (17). It is relevant to refer the provisions contained in Rule 18(22) of the Mineral Rules which reads as under:- (22) (a) As soon as the lease is determined the lessee shall deliver up the said premises and all mines (if any) dug therein in a proper and workable state (save in respect of any working as to which the Government might have sanctioned abandonment) to the Mining Engineer/Assistant Mining Engineer having jurisdiction over the area or to any person authorised by him. (b) The mineral left on expiry of lease period or on determination of lease or on surrender of lease shall be removed by the lessee within 15 days of date of expiry or surrender or receipt of the order of determination of lease; Provided that if the mineral is not removed within the aforesaid period of 15 days the mineral shall belong to the State and the Mining Engineer/Assistant Mining Engineer of the area may dispose it of either by public auction, by beat of drum or by direct sale at the rate prevalent in the adjacent area. (18). (18). Hence under the aforequoted provisions, it is incumbent upon the lessee immediately upon determination of the lease and after expiry of the lease period, to deliver and hand over vacant and peaceful possession of the lease area in proper and workable state to the Mining Engineer (proforma respondent No.2) having jurisdiction over the lease area. It is further mandatorily required of the lessee to immediately upon the expiry of the lease period within fifteen days thereto or 15 days of date of surrender or receipt of order of determination of the lease, to remove mining articles lying over the lease area. It has also been provided that in case of failure to remove within 15 days the mineral would automatically stand vested with the State, which may in that event, be disposed by the concerned Mining Engineer by way of public auction or by direct sale at the rate prevalent in the adjacent area thereto. (19). Sub clause (4) to clause 5 of the Form No.5 which is Model Form of Mining Lease prescribed under Rule (19) of the Mineral Rules, also enjoins upon the State Government to affect forfeiture of property left more than six months after determination of lease. Sub clause (14) to clause 7 of the aforesaid Form No.5 prescribes for removal of stock of minerals on expiry or determination of the lease and under which the lessee shall on the termination or earlier determination of the lease remove within 15 days all extracted minerals from the premises of the leased areas and according to it, all extracted minerals in the said lands left over undisposed after 15 days of the termination or determination of lease shall be deemed to be the property of the Government. (20). Be that as it may, the aforesaid provisions would be attracted notwithstanding the contentions advanced by the learned counsel for the petitioners, to the contrary. Only in the event of the lessee having not removed articles or fixtures or other materials lying over the lease area either after determination of the lease or termination of the lease and in any case not later than six months from the expiry of the lease term, it entails forfeiture of the property in question. In the present set of circumstances in all these seven petitions, the position is otherwise. In the present set of circumstances in all these seven petitions, the position is otherwise. It is not the case of either of the parties that the plaintiffs (respondent No.1) who were mining lease holders were or are not anxious to remove machinery with its fixtures besides extracted or excavated minerals lying over their respective mining lease areas, rather all the plaintiffs in these cases have been willing to do so, as so stated at the bar by their learned counsel but subject to the permission being given for the same. Moreover, the learned respondents counsel expressed any unwillingness of his clients nor pleaded anything contrary to the directions of the Apex Court in T.N. Godavarmans case (supra). Rather their willingness and anxiety is to remove their machinery with its fixtures and extracted minerals lying over their lease areas provided a reasonable time is given to each of his clients to do so. (21). Another question which is germane to the controversy before the parties and which arose for discussion during the course of hearing is as to whether it was open to the trial court to have permitted extension of time beyond prescribed period of two years by permitting the plaintiffs to remove machinery, goods and minerals already excavated lying over its disputed site in question, inasmuch as if such permission is given, whether the trial court is competent to have permitted to do so beyond the aforesaid period already being contrary to the letter dated 21/23.1.98 of the Central Government as per which prescribed period of two years had already lapsed as on 31.12.99 and thereafter without obtaining prior approval of competent authority, whether it was not open to the State Government (Forest Department) to have permitted the plaintiff/respondent to do so? (22). I am of the view that even the letter dated 21/23.1.98 of the Central Government does not impose any embargo or restriction on the powers of State Government to authorise the concerned lessees/parties in whose favour lease was granted in respect of its mining activity to remove their plant/machinery or excavated minerals lying at the mining lease areas. (22). I am of the view that even the letter dated 21/23.1.98 of the Central Government does not impose any embargo or restriction on the powers of State Government to authorise the concerned lessees/parties in whose favour lease was granted in respect of its mining activity to remove their plant/machinery or excavated minerals lying at the mining lease areas. Hence no prejudice or harm would be caused to the either side if the plaintiffs (respondent No.1) is permitted to remove their machinery installed over the disputed mining lease areas including the excavated material belonging to the respective parties from its site in question, since admittedly, no mining activity is being carried on or is being carried out by the parties after the expiry of the period of two years approved in Central Governments aforesaid letter dt. 21/23.1.98, which in my view is in absolute conformity and in compliance of the directions of the Apex Court. (23). Having regard to the fact that the State Government has challenged the impugned orders which granted seven days time to remove the machinery with its fixture and excavated minerals lying over the lease area and in these revision petitions which are now being finally disposed of, by interim stay order dated 25.1.2000 extended by subsequent orders of this Court, whereby status quo was ordered to be maintained, in my considered view, ends of justice require that a reasonable time be given to the plaintiffs to remove their aforesaid minerals and machinery etc. from the lease areas in question. (24). Before concluding, I would like to observe that the trial court has not committed any illegality, impropriety or jurisdictional error in giving directions to the aggrieved parties to have their articles, machinery and minerals installed over the disputed site removed within seven days with effect from the date of impugned order. Since the trial court has not in any event given any directions which can be construed as having been passed in violation of the directions given by the Apex Court in its Judgment referred and discussed above. Hence, no interference is called for in the impugned orders. (25). As a result of the above discussion, aforesaid seven revision petitions are dismissed. Hence, no interference is called for in the impugned orders. (25). As a result of the above discussion, aforesaid seven revision petitions are dismissed. However, fifteen days time instead of seven days granted by the trial Court is allowed to each of the plaintiffs (respondent No.1 in these seven petitions) from today to remove their machinery, its fixtures and minerals already excavated and lying over their respective mining lease areas as directed under the impugned orders which are upheld with slight modification as indicated above.