ORDER [As Nos. 1598-1600 in WP (C) No. 202 of 1995 1. Ms Rachana Srivastava, learned counsel accepts notice on behalf of the respondents. Reply to the applications be filed within four weeks. Two weeks' time thereafter is granted for filing rejoinder affidavit. IAs Nos. 1601-03 in WP (C) No. 202 of 1995 2. The Central Empowered Committee may examine the matter and file its report within two weeks. The interlocutory applications are adjourned for two weeks. IAs Nos. 1485 and 1507 in WP (C) No. 202 of 1995 3. The Government of India and National Mineral Development Corporation may file their response within two weeks. The interlocutory applications are adjourned for three weeks. IA No. 1574 in WP (C) No. 202 of 1995 4. The affidavit dated 15-6-2006 filed by Mr A.K. Srivastava in compliance with the orders of this Court dated 28-4-2006, is utterly vague and does not disclose the relevant information as per the report of the Central Empowered Committee dated 27-4-2006, which, in turn, refers to the restoration of Gangao Dam. 5. It was stated that the first phase of the work would be executed within a period of three months i.e. from 1-4-2006 to 30-6-2006 and the second phase would be executed during the period 1-7-2006 and 30-6-2007. The affidavit does not show whether the first phase, as proposed by the same d officer, is complete or not. It does not even show whether the work has even commenced or not. Undisputedly, the damage came to the notice of the respondent in July 2005. 6. Under these circumstances, we direct the Principal Secretary, Irrigation to file a detailed affidavit after verification of all the relevant facts within three weeks. IAs Nos. 827, 1122, 1216, 1337 and 1473 in WP (C) No. 202 of 1995 7. The report of the Central Empowered Committee dated 31-7-2006 regarding non-recovery of the net present value by the Ministry shall be registered as a separate interlocutory application. 8. As prayed by Mr A.D.N. Rao, learned counsel, Ministry of Environment and Forests is granted four weeks' time to file its response. Audit report is taken on record. IAs Nos. 1122, 1337 and 1473 9. The interlocutory applications are adjourned. IA No. 1216 10. This application has been worked out. It is, accordingly, disposed of. IA No. 1591 in WP (C) No. 202 of 1995 11. Audit report is taken on record. IAs Nos. 1122, 1337 and 1473 9. The interlocutory applications are adjourned. IA No. 1216 10. This application has been worked out. It is, accordingly, disposed of. IA No. 1591 in WP (C) No. 202 of 1995 11. As requested in Letter dated 31-7-2006, the Central Empowered Committee is granted eight weeks' time to file its report. List the interlocutory application after receipt of the report. IA No. 1535 in IA No. 548 in WP (C) No. 202 of 1995 12. The prayer in the interlocutory application is to direct the State of Rajasthan to continue grant of grazing permits in the Kumbalgarh Sanctuary to the right holders and concessionists "Raika". According to the applicants, the cause for approaching this Court is Letter dated 2-7-2004 sent by the Central Empowered Committee to all the Chief Secretaries, Principal Chief Conservators of Forests and Chief Wildlife Wardens, which has led to the State Government stopping the issuance of the grazing permits. 13. We have perused the report of the Central Empowered Committee dated 13-7-2006. One of the suggestions made is that, in terms of the provisions of the Wild Life (Protection) Act, 1972, the Chief Wildlife Warden concerned may be asked to assess the carrying capacity of each of the wildlife sanctuaries i.e. the number and the type of domestic animals which can safely be allowed to graze in the sanctuary area without adversely affecting the requirement of the herbivores in area. Further, the Chief Wildlife Warden should also provide the details of the livestock which have been immunised along with the mechanism put in place to ensure that overgrazing does not take place. 14. Section 33 of the Wild Life (Protection) Act, 1972 vests in the Chief Wildlife Warden the authority to control, manage and maintain all sanctuaries and for that purpose within the limit of any sanctuary, he may regulate or control or prohibit, in keeping with the interest of wildlife, the grazing or movement of livestock. Immunisation measures are required to be taken, as stipulated. 15. The Chief Wildlife Warden shall submit a report as to the carrying capacity of the sanctuary in question, namely, Kumbalgarh Sanctuary, in terms of the suggestion made in Para 17 of the Report of the Central Empowered Committee dated 13-7-2006, including the details of immunisation measures and the mechanism which is in place in the said sanctuary. 15. The Chief Wildlife Warden shall submit a report as to the carrying capacity of the sanctuary in question, namely, Kumbalgarh Sanctuary, in terms of the suggestion made in Para 17 of the Report of the Central Empowered Committee dated 13-7-2006, including the details of immunisation measures and the mechanism which is in place in the said sanctuary. Para 17 of the Report reads as under: "It is submitted that in terms of the provisions of the Wild Life (Protection) Act, the Chief Wildlife Warden concerned may be asked to assess the carrying capacity of each of the wildlife sanctuary i.e. the number and the type of domestic animals which can safely be allowed to graze in the sanctuary area without adversely effecting (affecting?) the requirement of the herbivores in the area. The Chief Wildlife Warden should also provide the details of the livestock which have been immunised along with the mechanism put in place to ensure that overgrazing does not take place. After receipt of the above information, if required, appropriate directions may be issued by this Hon'ble Court for allowing grazing in the sanctuary area." 16. The report shall be submitted within three weeks. List the interlocutory application after four weeks. IAs Nos. 1413-14, 1454 in IAs Nos. 1413, 1426, 1428, 1439-41, 1444-45, 1459 and 1460 in WP (C) No. 202 of 1995 17. By order dated 16-9-20052, it was, inter alia, directed that no temporary working permission or temporary working permit or any other permission, by whatever name called, shall be granted for mining activities in the national parks, sanctuaries and forest areas. It was further directed that no mining activity would continue under any temporary working permit or permission (TWP), which may have been granted. This order was later relaxed on the applications filed by some of the applicants. Suggestions have been filed by the learned amicus curiae and the Ministry of Environment and Forests, besides the Federation of Indian Minerals Industries (FIMI) regarding the conditions, which would govern the grant of TWP. 18. On consideration thereof, the conditions precedent for the grant of TWPs as well as the procedure for their grant shall be as provided hereinafter. At the outset, it is clarified that TWPs shall be granted only where the following conditions are satisfied. Preconditions 19. 18. On consideration thereof, the conditions precedent for the grant of TWPs as well as the procedure for their grant shall be as provided hereinafter. At the outset, it is clarified that TWPs shall be granted only where the following conditions are satisfied. Preconditions 19. (i) TWPs can only be granted for the renewal of mining leases, and not where the lease is being granted for the first time to the applicant user agency; (ii) The mine is not located inside any national park/sanctuary notified under Sections 18, 26-A or 35 of the Wild Life (Protection) Act, 1972; (iii) The grant of TWP would not result in any mining activity within the safety zone around such areas referred to in Precondition (ii) above (as an interim measure, one kilometre safety zone shall be maintained subject to the orders that may be made in IA No. 1000 regarding Jamua Ramgarh Sanctuary); (iv) The user agency who has broken up the area of the mine (in respect of which TWP is being sought) has or had the requisite environmental clearances and at no time prior to the grant of the TWP was any mining being carried on by the user agency in relation to the mine in question, in violation of the provisions of the Forest (Conservation) Act (for short "the FC AcC). In cases involving violation of the FC Act, a formal decision on merit should be taken under the FC Act after considering the gravity of the violation. However, the grant of TWP may be considered where past violations have been regularised. by the Ministry of Environment and Forests (for short "MoEF') by the grant of an approval under the FC Act with retrospective effect; (v) The conditions attached to the approval under the FC Act for the grant of the mining lease (or the renewal of the mining lease) have been fulfilled, particularly those in respect of (but not limited to)compensatory afforestation, reclamation plan and overburden dumping on the specified site; (vi) The user agency has, within the stipulated time, already filed a proposal in conformity with the Forest (Conservation) Rules, 1980 for seeking an approval under the FC Act along with the complete details as are required to be furnished. An application for the grant of TWP in favour of the user agencies, who have either not filed a proper proposal and/or have not provided complete information, particularly in respect of (but not limited to) compensatory afforestation, phased reclamation plan, felling of trees, details of minerals extracted in the past, etc. should not be entertained; (vii) A TWP shall be granted only limited to working in the area broken up legally and during the validity of the lease. No TWP can be granted in respect of, or extending to either unbroken area or the areas which have been broken after the expiry of the mining lease or have been broken in violation of the FC Act or any other law for the time being in force; (viii) In no circumstances can the duration of a TWP extend beyond the period of one year. Where an application for the grant of permission under the FC Act is not disposed of during the currency of TWP, the applicant, on the strength of the same TWP, may continue to operate for a period not exceeding three months unless specific orders are obtained from this Court; and (ix) A valid lease under the MMRD Act exists [including by way of a deemed extension in terms of Rule 24-A(6) of the Mineral Concession Rules] in respect of the area of the TWP. Procedure for grant of clearances under the FC Act and the issuance of TWPs (in relation to renewal of mining leases) 20. Procedure for grant of clearances under the FC Act and the issuance of TWPs (in relation to renewal of mining leases) 20. (i) The user agency shall submit, in the first instance, to the State Government, proposals seeking renewal of the mining lease under the FC Act not less than two years prior to the expiry of the mining lease, except the leases which are due to expire before August 2008, provided applications are made on or before 31-10-2006; (ii) On receipt of the proposal within the stipulated time as aforesaid, and upon its examination, where the State Government is of the view that further details (besides the information submitted by the user agency in the prescribed formats) are necessary, the State Government shall give intimation thereof not later than ninety days of the receipt of the g proposal; (iii) The State Government shall forward the proposal together with their recommendations to the Central Government not later than nine months after receipt of the proposal; (iv) The Central Government shall ordinarily dispose of the application for grant of permission not later than four months of its receipt; Provided where the Central Government is unable to dispose of the application within four months as aforesaid, it shall record special reasons explaining the delay; (v) Where the application for grant of permission under the FC Act is delayed beyond the periods stipulated hereinabove, the user agency may then apply for the grant of a TWP. In such cases, the user agency will have the option of applying for a TWP through the State Government in the pro forma prescribed by MoEF with an advance copy both to MoEF and the regional office of MoEF. Such applications shall be made at any time after the expiry of thirteen months from the date of filing of the proposal with the State Government but not later than nine months prior to the expiry of the existing approval under the FC Act. Such applications shall be made at any time after the expiry of thirteen months from the date of filing of the proposal with the State Government but not later than nine months prior to the expiry of the existing approval under the FC Act. In cases where lease/renewal was granted prior to the enactment of the FC Act and the lease period has not expired, the application shall be made at least nine months prior to the expiry of the lease period; (vi) The proposal seeking TWP shall be processed by the State Government and forwarded to MoEF within a period of three months, who shall place the proposal before FAC constituted under Section 3 of the FC Act in its next meeting. The information/details which have not been filed by the user agency, either in respect of the proposal under the FC Act or in the proposal for the TWP shall also be sought by the State Government and made available by the user agency during this period; (vii) In the event of failure on the part of the State Government to send its recommendations on the proposal submitted by the user agency for grant of TWP within the stipulated period, the advance copy of the application, already sent by the user agency to the Central Government, shall be placed before FAC for its consideration. FAC shall provide an opportunity to the State Government and the user agency to be heard before giving its recommendations on the merits of the case. (viii) If the State Government, for reasons to be recorded in writing, recommends a refusal of the request to grant a TWP, FAC shall, after giving the user agency and the State an opportunity to present their views pass such orders as it thinks fit. FAC shall be at liberty to evolve a suitable procedure for this purpose; (ix) In respect of cases where no recommendation has been received from the State Government within the stipulated time, FAC shall, after giving the State an opportunity to be heard, examine the proposal on merit and pass appropriate orders. FAC should evolve a suitable procedure that shall be fair and reasonable and would ensure adherence with the time schedule; (x) All proposals for grant of the FC Act clearances and TWPs in respect of mining leases shall be placed before FAC. FAC should evolve a suitable procedure that shall be fair and reasonable and would ensure adherence with the time schedule; (x) All proposals for grant of the FC Act clearances and TWPs in respect of mining leases shall be placed before FAC. Where FAC by order recommends the grant of a clearance or a TWP, MoEF shall, within a period of four weeks from the date of such order, issue orders for the grant of clearance on the usual terms, including those relating to the a payment of NPV; Provided where a TWP is being granted, it shall only be for a period not exceeding one year and upon payment of NPV for the already broken up area; (xi) Decision on grant of a TWP shall be taken before the expiry of the mining lease. Decision of MoEF on the proposal for diversion of forest land for mining lease under the FC Act shall be conveyed to the user agency before the expiry of TWP. (xii) In case MoEF disagrees with the recommendation of FAC, it shall record its reasons in writing and communicate the same to FAC, and FAC may, after considering such reasons, pass such further orders as it thinks fit; Provided where the Government still disagrees with the order passed by FAC, it may seek appropriate directions from this Court; (xiii) All the orders of FAC shall be made available to the user agency and the State Government; (xiv) In cases where the recommendations have been made by FAC without ascertaining the views of the State Government, the TWP shall become effective only after the details made available by the user agency are confirmed by the State Government within a maximum period of one month. In case the information furnished by the user agency is found to be at variance with the factual position, the State Government shall refer the matter back to MoEF, who may, if so advised, suspend the grant of TWP; (xv) TWP shall become effective only after the payment towards the NPV for the already broken up area is deposited by the user agency; (xvi) In cases where site inspection by the Regional Chief Conservator of Forests is mandatory, the proposal for TWP shall be examined by FAC after considering the site inspection report of the Regional Chief Conservator of forests; the Regional Chief Conservator of Forests shall ensure that the inspection is completed in such time as may be directed by FAC; and (xvii) At the time of payment of NPV at the present rate, the user agency shall also give an undertaking to pay the additional NPV, if so determined as per the final decision of this Court. 21. Those who are continuing to operate on the strength of the temporary permit under the interim protection granted by this Court would continue as before, for a period not exceeding four months. We direct that their cases shall be decided by FAC within the said period of four months. The State Governments are directed to consider and send their recommendations to MoEF forthwith, and not later than six weeks from today, with a view to ensure decision within the stipulated period of four months. 22. To consider the question of constitution of appropriate FAC, adjourned to 25-8-2006. IAs Nos. 1466-67 in WP (C) No. 202 of 1995 23. The learned counsel seeks leave to withdraw the interlocutory applications. They are, accordingly, dismissed as withdrawn. IA No.4 in Contempt Petition (C) No. 193 of 2001 in WP (C) No. 202 of 1995 24. Not taken up. WP (C) No. 603 of 2000 25. Not taken up. IA No. 1614 in Applications Nos. 863 and 905 in WP (C) No. 202 of 1995 26. The learned counsel appearing for the State of Gujarat states that all the conditions recommended in the report of the Central Empowered Committee dated 28-7-2006 are acceptable to the State Government. In this view, permission sought for in IAs Nos. Not taken up. IA No. 1614 in Applications Nos. 863 and 905 in WP (C) No. 202 of 1995 26. The learned counsel appearing for the State of Gujarat states that all the conditions recommended in the report of the Central Empowered Committee dated 28-7-2006 are acceptable to the State Government. In this view, permission sought for in IAs Nos. 863 and 905 is granted to the State Government on complying with the conditions as under: "(i) the requisite approval under the Forest (Conservation) Act for use of the forest land will be obtained; (ii) the NPV for the forest land will' deposited. in the Compensatory Afforestation Fund with an undertaking to pay additional NPV as per the decision taken by this Hon'ble Court; (iii) 5% of the project cost will be deposited in the Compensatory Afforestation Fund for undertaking conservation and protection works in the sanctuary; (iv) as recommended by the Standing Committee of the National Board for Wildlife, a ten year master plan for the revitalisation of the sanctuary with focused attention and concerted efforts on wildlife conservation and management will be immediately prepared and implemented for rehabilitation of the sanctuary area. Funds for this purpose will be made available by the State Government on priority basis; and (v) no area presently falling within the sanctuary will be used for mining purposes in future." 27. IAs Nos. 863 and 905 are disposed of accordingly.