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Banswara Marble Mines v/s Union of India (Uoi) & Others

    Civil Writ Petition No. 2200 of 1998

    Decided On, 25 August 1998

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE V.G. PALSHIKAR

    For the Appellant: N.P. Gupta, R.P. Dave, Advocates. For the Respondents: Vineet Mathur, Advocate.



Judgment Text

V.G. Palshikar, J.

1. This petition is filed by Banswara Marble Mines Owners Association in representative capacity along with one mine owner seeking following reliefs :--

(i) quashing stipulations Nos. 2 and 3 of Annex. 4 so far as it directs the transfer of the cost of compensatory afforestation and the cost of penal afforestation,

(ii) directing the respondent No. 1 to now unconditionally grant this approval for diversion of the land in question for mining purposes, more particularly in view of Annexure-1 and the members of the petitioner having already deposited the amounts demanded vide Annexure-1,

(iii) quashing stipulation No. 4 of Annex. 5.

(iv) quashing Annex. 6 whole hog,

(v) holding that by seeking to challenge the demand of amounts vide Annexures-4, 5 and 6 under the colour of compensatory afforestation or penal afforestation, the petitioners are not claiming any relaxation as assumed in Annexure-8 and thus quashing Annexure-8,

(vi) awarding costs of the writ petition,

(vii) granting any such other relief as the petitioner may be found entitled to.

2. On 8th July, 1998 this Court ordered issue of notice to show cause why the petition should not be admitted and disposed of at admission stage making the rule returnable in a week as the matter was canvassed to be very urgent on behalf of the petitioners.

3. Reply has now been filed on behalf of the State Government and the matter is passed for decision at the admission stage by the learned counsel appearing on behalf of the petitioner. Shri Vineet Mathur learned counsel appearing on behalf of the Union of India and Shri R. P. Dave, Advocate for the State brought to my notice an order made by the Supreme Court of India in Writ Petition (C) No. 202 of 1995 and other connected petitions and prayed that in view of the orders made by the Supreme Court which is reported in T.N. Godavarman Thirumulkpad Vs. Union of India and others, this

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Court cannot hear the writ petition or decide the same as the Supreme Court of India has put a complete embargo on such hearing and decision by this Court. Replying to the contention and preliminary objection Shri N.P. Gupta, learned counsel for the petitioner submits that the decision is not applicable in the present case and is liable to be distinguished. I find it necessary in the circumstances to decide the preliminary objection regarding hearing first.

4. Some writ petitions were filed before the Supreme Court of India by some environmental protectionists under the provisions of Article 32 of the Constitution as also the Forest Conservation Act, 1980. According to the submissions made by the respondent-Union of India these petitions are still pending in the Supreme Court of India.

5. A Division Bench of the Supreme Court of India made an interim order in these petitions in exercise of its power under Article 142 of the Constitution of India. The order begins thus :

"In view of the great significance of the points involved in these matters, relating to the protection and conservation of the forests throughout the country, it was considered necessary that die Central Government as well as the Governments of all the States are heard."

Then it has been observed,--

"We have formed the opinion that the matters require a further in-depth hearing to examine all the aspects relating to the National Forest Policy..... therefore, we defer the continuation of this hearing for some time to enable the learned counsel to further study these points."

It was then observed by their Lordships of the Supreme Court:

"However, we are of the opinion that certain interim directions are necessary at this stage in respect of some aspects. We have heard the learned Attorney General and the other learned counsel on these aspects."

The Supreme Court then proceeded to issue interim directions. In para 5 the directions are contained. First, therefore, are general directions and the first direction reads thus,--

" 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."

Then there are directions for the State of Jammu and Kashmir, for the States of Himachal Pradesh, Uttar Pradesh and West Bengal. Then there are directions for the State of Tamil Nadu.

6. In sub-para 7 of Part IV of para 5 of the directions issued by the Supreme Court it has been observed thus:

"7. This order is to operate and to be implemented, notwithstanding any order at variance, made or which may be made by any Government or any authority, Tribunal or Court, including the High Court.

The earlier orders made in these matters shall be read, modified wherever necessary to this extent. This order is to continue, until further orders. This order will operate and be complied with by all concerned, notwithstanding any order at variance, made or which may be made hereafter, by any authority, including the Central or any State Government or any Court (including the High Court) or Tribunal."

It will thus be seen that the Supreme Court of India has ordered that the interim orders made by it shall continue until further orders and will operate notwithstanding any order at variance which may be made hereafter by any authority including the High Courts. It is on the basis of these directions of the Supreme Court that Shri R.P. Dave, Advocate for the State and Shri Vineet Mathur, learned counsel for the respondent-Union of India pray that no orders at variance of the interim orders made by the Supreme Court of India may be made by this Court. It has been ordered by the Supreme Court of India that any non-forest activity within the area of any forest must cease forthwith. Mining operations within forest area in the State of Rajasthan cannot in the circumstances be allowed to continue by any interim order of the kind prayed for by the petitioners in the present case.

7. It is also necessary to consider this submission in the light of the observations made by the Supreme Court in relation to the State of Rajasthan in this very order. This reads as under :--

"This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage relating to permission 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."

A cohesive reading of the order made by the Supreme Court of India referred to above, according to Mr. Mathur, leaves no room for doubt that this petition cannot be entertained at this stage by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

8. Opposing this preliminary objection it is contended by Mr. N.P. Gupta, learned counsel for the petitioner that taking into consideration the facts and circumstances in which the present petition arises and the prayers made therein are not covered by the orders made by the Supreme Court on the basis of which it is contended that the petition should not be heard. According to Mr. Gupta what has been ordered as interim measure by the Supreme Court of India for environmental protection in 1997, was already envisaged and ordered by the Rajasthan High Court in 1995. Adequate measures were already ordered by the Rajasthan High Court in 1995 in relation to these mining operations and, therefore, these interim orders are not applicable in any manner to the facts of the present case and the petition can be heard on merits. Justifying his contention, Mr. Gupta pointed out that mining leases were granted to the members of the petitioner-Association since very many years and writ petition was, therefore, filed bearing No. 6304/92 in this Court alleging that the land in question being a revenue land is not a forest land and, therefore, the action of the State Government in not processing the renewal application for mining leases on the pretext that the land is a forest land is an illegality and claiming mandamus directing them to consider the renewal applications. This petition was decided by this Court on 17th April, 1995 and it was directed that the State Government should consider the question of nature of land and decide whether it is a forest land or a revenue land. In pursuance of the observations made by this Court in the above decision a high power Committee was constituted consisting of the Chief Secretary, the Forest Secretary, the Revenue Secretary, the Mines Secretary, the Forest Minister and the Mines Minister. This Committee after due deliberations came to the conclusion that the land is liable to be treated as revenue land but recommended taking into consideration environmental protection and ecological aspects of the matter that the Collector should set apart equal area of land for afforestation and the cost of afforestation be recovered from the mines owners. The cost was determined at Rs. 16,500/- per hectare. Accordingly, about 80 hectares of land was set apart for afforestation and the mining lessees were directed to shoulder the afforestation cost. Money was deposited by the mining operations and provisional grant with working permissions were then issued.

9. On 6th January, 1997, the State Government issued a communication to the Collector, Banswara that in view of the interim order of the Supreme Court of India in Writ Petition No. 202 of 1995, dated 12th December, 1996: T.N. Godavarman Thirumulkpad Vs. Union of India and others, the land in question be treated as forest land and action be taken to stop mining activity immediately. Thereafter in obedience of the orders referred to above made by the Supreme Court of India proposals were sent for seeking permission to use the land in question for non-forest purposes vide communication of the State Government dated 10th March, 1997. During the pendency of consideration of these proposals by the Central Government the Central Government communicated that temporary working permission be given under certain conditions. It is after the issue of this letter that certain further orders were made by the State Government making certain change in the matter of deposit of afforestation cost and claiming cessation of mining activities forthwith till the freshly determined afforestation costs are determined. It is these orders which are challenged in this petition by the Association. It is in the light of these foregoing circumstances that according to Mr. Gupta the interim orders of the Supreme Court of India do not come in the way of the petitioners' claim and the petition can be heard on merits. He submits that due care for protection of environment was already taken in the instant case and there is, therefore, no need to reject this petition at this stage in pursuance of these orders.

10. It was also contended by Mr. Gupta that the interim order that is prayed for in the present petition is not and cannot be one at variance of the order already made on 12th December, 1996 and, therefore, there is no question of this Court not entertaining this petition.

11. An application for variation of the order dated 12th December, 1996 with certain modifications came to be dismissed on 4th March, 1997. According to learned counsel for both the sides the petitions are still pending and no final order has been passed. It is also the contention of the learned counsel for the petitioner that the order of the Supreme Court dated 12th December, 1996 does not put an embargo on the hearing of such objections. According to the learned counsel the Supreme Court of India does not intend to temporarily suspend the jurisdiction of this Court to take up any decision and decide petitions under Article 226 on subjects averred by the said order. According to the learned counsel such embargo for whatever short period it may be, is not envisaged by the Constitution of India and cannot be ordered by any Court in India. The Constitutional powers of this Court under Article 226 cannot be suspended by any authority and, therefore, there is no embargo on this Court hearing this petition on merits.

12. It is pertinent to note as aforesaid applications were made for variation of the order dated 12th December, 1996. The applications were rejected and it was observed that the directions issued by that order are to be read along with those contained in the order dated 12th December, 1996. In relation to mining matters following orders were made:

"We direct that-

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."

and then the Supreme Court observed thus :

"It is made clear that the order passed by this Court in these matters, including the order dated 12-12-1996 and the present order shall be obeyed and carried out by the Union Government as well as the State Governments, notwithstanding any order or direction passed by a Court, including a High Court or Tribunal, to the contrary."

"We further direct the Registrar General to communicate the order dated 12-12-1996 as well as the present order to the Registrars of all the High Courts to ensure strict compliance."

13. It is in these circumstances that I have to consider the preliminary objections. In my opinion, the Supreme Court desires that taking into consideration the vital importance of the requirement of the protection of environment it is better that the Supreme Court alone deals with the question pertaining to exploitation of environment and, therefore, several directions in this regard were issued from time to time. A perusal of the judgment of the Supreme Court reported in 1998 (2) SCC (sic) where directions specifically in relation to mining are given by the Supreme Court indicating that the Supreme Court desires to keep cession of the matter to avoid any conflicting or different orders are made by different Courts in India. It appears to me that it is unequivocal intention of the Supreme Court of India to prevent different orders at variance by different Courts and Tribunals and, therefore, standing instructions are issued as quoted in para 6 above mandating that this order will operate notwithstanding any order at variance which may be made by any Court including the High Courts. I am of the opinion, therefore, whether an order to be made on petitions like this one will be an order at variance or in consonance with the directions of the Supreme Court is not permitted to be decided by this Court. It is pertinent to note here that the orders dated 12th December, 1996 and 4th March, 1997 were circulated to the High Courts in India by the Registrar General of the Supreme Court under his letter dated 8th March, 1997 in which he has said,--

"I am, therefore, enclosing herewith certified copy of the each of the above orders dated 12th December, 1996 and 4th March, 1997 passed by the Hon'ble Court in the matters for strict compliance as desired by the High Court." I am of the opinion that the purpose of circulating and desiring its strict compliance is obviously indicated to see that no such petitions on these subjects are entertained by any other Court. I read this as a prohibition issued by the Supreme Court of India to the High Courts in India requesting them not to take up any matters of public interest litigation involving environment protection in relation to which directions have been issued by the Supreme Court in Writ Petition No. 202/96. Such desire is obviously made with a view to avoid different orders being made by different High Courts on one subject. I am of the opinion, therefore, it is not proper for me to entertain this writ petition and to make any interim order as desired by the counsel for the petitioner.

14. In the result, therefore, the petition fails and is dismissed as not maintainable.

15. At this stage Shri N.P. Gupta learned counsel appearing on behalf of the petitioner prays that taking into consideration the view that I have taken regarding the maintainability of the petition he in all humility submits that such interpretation as is put by me leads to an invariable conclusion that the order of the Supreme Court tantamounts to an order prohibiting exercise of the powers under Article 226 by this Court. No such order can be made. According to the learned counsel it is a question of public importance and it is also a question of interpretation of the provisions of the Constitution in so far as the powers of the Supreme Court of India and this Court are concerned and, therefore, he prays for grant of certificate of fitness of appeal before the Supreme Court.

16. It is contended by the learned counsel that the certificate is liable to be issued under Article 132 as the question as to whether the jurisdiction of the High Court under Article 226 can be circumscribed by any other Court in India is a substantial question of law as to the interpretation of the Constitution.

17. It is also contended by the learned counsel that certificate is also liable to be given under Article 133 of the Constitution because the case involves a substantial question of law of general importance, namely, scope and extent of the jurisdiction of the High Court to take up writ under Article 226 where analogous matters are pending before the Supreme Court of India. According to him this question needs to be decided by the Supreme Court itself and, therefore, he prays for grant of certificate under Article 133 also.

18. I have deliberated on the submissions made by the learned counsel and I also feel that the following question pertaining to the interpretation of the Constitution of India as also great public importance arise in the present case :

1. Whether the powers conferred upon a High Court by Article 226 of the Constitution to issue writ or orders in the nature of writs as mentioned in Article 226 can in any way or manner be circumscribed by any other authority under the Constitution except of course by an appropriate constitutional amendment brought about by exercise of the powers under Article 368 of the Constitution ?

2. Whether the Supreme Court of India can, in exercise of its defined jurisdiction under Articles 131 to 142 of the Constitution, make such orders as to curtail or temporarily postpone exercise of jurisdiction by the High Court of its powers under Article 226 ?

19. I have considered the aspect thoroughly. I feel it my duty in the circumstances to certify that the above questions are of the nature referred to in Sub-clause (1) of Article 132 and Sub-clause (1) of Article 133 of the Constitution and I do hereby certify that these questions are fit to be decided by the Supreme Court of India.

20. I, therefore, do hereby grant certificate to that effect under Article 134A of the Constitution of India. The Registrar General of the Rajasthan High Court should prepare an appropriate certificate in appropriate pro forma and issue the same immediately to the petitioner.
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