Gujarat High Court
C/Mca/1383/2013 Cav Judgment vs State Of Gujarat Through Secretary & 5 ... on 20 June, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/MCA/1383/2013 CAV JUDGMENT
MCA13832013Cj3.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR REVIEW) NO. 1383 of
2013
In
CIVIL APPLICATION NO. 6181 of 2013
In
CIVIL APPLICATION NO. 3858 of 2013
In
WRIT PETITION (PIL) NO. 114 of 2012
With
MISC.CIVIL APPLICATION NO. 1384 of 2013
In
CIVIL APPLICATION NO. 6189 of 2013
With
MISC.CIVIL APPLICATION NO. 1385 of 2013
In
CIVIL APPLICATION NO. 6184 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ?` Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the constitution of
India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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AMRUTLAL DEVJIBHAI JOSHI & 1 ANR.
Page 1 of 24
C/MCA/1383/2013 CAV JUDGMENT
Versus
STATE OF GUJARAT THROUGH SECRETARY & 5 ORS.
==========================================
===============
Appearance:
MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 - 2
GOVERNMENT PLEADER for the Opponent(s) No. 1
MR GAURAV S MATHUR, ADVOCATE for the Opponent(s) No. 6
==========================================
===============
CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/06/2014
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. By filing these three Misc. Civil Applications, the petitioners of Writ Petition [PIL] No. 114 of 2012 have prayed for review of the common order dated 24th June 2013 passed by this Bench in Civil Applications No. 6181 of 2013, 6184 of 2013 and 6189 of 2013 thereby interpreting our earlier order dated 25th April 2013 passed in Civil Application No.3858 of 2013 arising out of Writ Petition [PIL] No. 114 of 2012 whereby we passed an interim order to this effect that the State-respondent should see that no mining activity was carried on within the safety zone of 1 km. from the boundary of Balaram Ambaji Wildlife Sanctuary until further order.
2. It appears from the records that in view of our above order dated 25th April 2013 passed in Civil Application No.3858 of 2013, the Assistant Geologist, Geology Science and Mineral Department, Page 2 of 24 C/MCA/1383/2013 CAV JUDGMENT Palanpur, Banaskantha, passed an order against the applicants of Civil Applications No. 6181 of 2013, 6184 of 2013 and 6189 of 2013 informing them that they should stop their mining activities as their quarry lease of marble mineral falls within 1 km. of the forest/sanctuary area. In view of such order passed by the Assistant Geologist, Geology Science and Mineral Department, Palanpur, they came up with three Civil Applications, being Civil Applications No. 6181 of 2013, 6184 of 2013 and 6189 of 2013 for clarification of our order dated 25th April 2013 passed in C.A. No. 3858 of 2013, and in those applications, Mr. Joshi, the learned Senior Counsel appearing on behalf of those applicants, contented that the quarry lease of his clients do not fall within 1 km. from the boundary of Balaram Ambaji Wildlife Sanctuary, and as such, there was no justification on the part of the State-Respondent of issuing such restraint order on the basis of our order. According to Mr. Joshi, Balaram Ambaji Wildlife Sanctuary is not a sanctuary declared under section 26A of the Wild Life [Protection] Act, 1972 [the Act, for short, hereafter] nor can it be said to be a "deemed sanctuary" in terms of section 66(4) of the said Act.
Mr. Joshi further contended in those three Civil Applications that in respect of the Balaram Ambaji Wildlife Sanctuary, a mere notification under section 18 of the Act was issued, and final notification in terms of section 26A of the Act was yet to be issued. In view of such assertion, we clarified our order only to the extent that unless a notification in terms of either under section 26A of the Act has been passed in respect of the Balaram Ambaji Wildlife Sanctuary or if the Page 3 of 24 C/MCA/1383/2013 CAV JUDGMENT said sanctuary comes within the purview of "deemed sanctuary", no restraint order should be passed upon a quarry lease holder unless the activity falls within 1 km. from the sanctuary as indicated in section 26A of the Act or "deemed sanctuary" within the meaning of section 66(4) of the Act. We further observed in the said order dated 24th June 2013 passed in the aforesaid three Civil Applications that we had otherwise not gone into the question whether the mining activities of the applicants fall within the aforesaid area and it was for the State-respondent to satisfy whether the activities of the applicants fall within 1 km. of the sanctuary or "deemed sanctuary"
indicated in the said order, and if the mining activities do not fall within 1 km. area, the State Government was directed to modify its order.
3. The original writ-applicants of WP [PIL] No. 114 of 2012 have preferred the present three applications, praying for review of our order dated 24th June 2013 passed in the aforesaid Civil Applications No. 6181 of 2013, 6184 of 2013 and 6189 of 2013 clarifying our order dated 25th April 2013 in C.A. No. 3858 of 2013. According to them, while issuing the order dated 24th June 2013 clarifying our earlier order dated 25th April 2013, we have committed an error apparent on the face of the record inasmuch as in the order dated 4 th August 2006 passed by the Supreme Court, which is the basis of the Public Interest Litigation it is stated that no temporary working permission or temporary permit or any other permission by whatsoever name called Page 4 of 24 C/MCA/1383/2013 CAV JUDGMENT shall be granted for mining activities in the national parks, sanctuaries and forest areas and the conditions precedent for the grant of temporary working permission as well as the procedure for their grant is provided in the said order and in the pre-condition No. iii of the same, it is stated that the grant to temporary working permit would not result in any mining activities within the safety zone referred to in pre-condition No. ii, and as an interim measure, 1 km.
safety zone shall be maintained subject to the order that may be made in I.A. No. 1000 regarding Jamua Ramgarh Sanctuary. It is further pointed out pre-condition No.ii provides that the mine should not be located inside any national park/sanctuary notified under sections 18, 26A or 35 of the Act. According to the applicants-
original-writ-petitioners, in the present case, the Balaram Ambaji Wildlife Sanctuary is notified under section 18 of the Act and thereafter, even the State Government has issued Government Resolution dated 22nd February 2011 [a copy of which was annexed at Annexure 'H' to the PIL] relying upon the aforesaid order dated 4th August 2006 passed by the Supreme Court, and the said Government Resolution is in force. According to the applicants-writ-petitioners, therefore, there was no necessity of issuing any clarification.
4. Mr. Joshi, the learned Senior Counsel appearing on behalf of some of the respondents and Mr. Raval, the learned advocate appearing on behalf of some others, pointed out that the Balaram Ambaji Wildlife Sanctuary is declared as a sanctuary under old Page 5 of 24 C/MCA/1383/2013 CAV JUDGMENT Section 18 of the Act in the year 1988 prior to coming into operation of the new amendment introducing the new section 18 by repealing the earlier one, and at that point of time, there was no question of invoking section 26A. They point out that according to Section 66(4) of the Act, in case of a sanctuary which has been declared as such under the old section 18, if the proceedings mentioned in sections 19 to 25 are pending on the date of coming into operation of the amendment, that is to say in the year 1992, in such a case, only the portion of the land covered by reserved forest or territorial water should be deemed to be sanctuary and other areas than reserved forest and territorial water, should not be deemed to be sanctuary so long the provisions contained in section 19 to 25 of the Act are complied with.
5. In order to appreciate the aforesaid question, it will be profitable to refer to sections 18 to 26A of the amended provisions of the Act, which are quoted below:-
"18. Declaration of sanctuary. (1) the State Government may, by notification, declare its intention to constitute any area other than an area comprised within any reserve forest or the territorial waters as a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomorphological, natural or zoological significance, for the purpose of protecting, propagating or developing wild life or its environment.
(2) The notification referred to in sub-section (1) Page 6 of 24 C/MCA/1383/2013 CAV JUDGMENT shall specify, as nearly as possible, the situation and limits of such area.
Explanation.-For the purposes of this section it shall be sufficient to describe the area by roads, rivers, ridges or other well-known or readily intelligible boundaries.
18A. Protection to sanctuaries.--(1) When the State Government declares its intention under sub-section (1) of section 18 to constitute any area, not comprised within any reserve forest or territorial waters under that sub- section, as a sanctuary, the provisions of sections 27 to 33A (both inclusive) shall come into effect forthwith.
(2) Till such time as the rights of affected persons are finally settled under sections 19 to 24 [both inclusive], the State Government shall make alternative arrangements required for making available fuel, fodder and other forest produce to the persons affected, in terms of their rights as per the Government records.
18B. Appointment of Collectors.-- The State Government shall appoint, an officer to act as Collector under the Act, within ninety days of coming into force of the Wild Life (Protection) Amendment Act, 2002, or within thirty days of the issue of notification under section 18, to inquire into and determine the existence, nature and extent of rights of any person in or over the land comprised within the limits of the sanctuary which may be notified under sub-section (1) of section 18.
19. Collector to determine rights.-- When a notification has been issued under section 18 the controller shall inquire into, and determine, the existence, nature and extent of the rights of any person in or over Page 7 of 24 C/MCA/1383/2013 CAV JUDGMENT the land comprised within the limits of the sanctuary.
20. Bar of accrual of rights. -- After the issue of a notification under section 18, no right shall be acquired in, on or over the land comprised within the limits of the area specified in such notification, except by succession, testamentary or intestate.
21. Proclamation by Collector.--When a notification has been issued under section 18, the Collector shall within a period of sixty days publish in the regional language in every town and village in or in the neighbourhood of the area comprised therein, a proclamation-
(a) specifying, as nearly as possible, the situation and the limits of the sanctuary; and
(b) requiring any person, claiming any right mentioned in section 19, to prefer before the Collector, within two months from the date of such proclamation, a written claim in the prescribed form, specifying the nature and extent of such right with necessary details and the amount and particulars of compensation, if any, claimed in respect thereof.
22. Inquiry by Collector.-- The Collector shall, after service of the prescribed notice upon the claimant, expeditiously inquire into-
(a) the claim preferred before him under clause (b) of section 21; and
(b) the existence of any right mentioned in section 19 Page 8 of 24 C/MCA/1383/2013 CAV JUDGMENT and not claimed under clause (b) of section 21, so far as the same may be ascertainable from the records of the State Government and the evidence of any person acquainted with the same.
23. Powers of Collector.--For the purpose of such inquiry, the Collector may exercise the following powers, namely:--
(a) the power to enter in or upon any land and to survey, demarcate and make a map of the same or to authorise any other officer to do so;
(b) the same powers as are vested in a civil court for the trial of suits.
24. Acquisition of rights.-- (1) In the case of a claim to a right in or over any land referred to in section 19, the Collector shall pass an order admitting or rejecting the same in whole or in part.
(2) If such claim is admitted in whole or in part, the Collector may either-
(a) exclude such land from the limits of the proposed sanctuary, or
(b) proceed to acquire such land or rights, except where by an agreement between the owner of such land or holder of rights and the Government, the owner or holder of such rights has agreed to surrender his rights to the Government, in or over such land and on payment of such compensation, as is provided in the Land Acquisition Act, 1894. (1 of 1894.), Page 9 of 24 C/MCA/1383/2013 CAV JUDGMENT
(c) allow, in consultation with the Chief Wild Life Warden, the continuation of any right of any person in or over any land within the limits of the sanctuary.
25. Acquisition proceedings.-- (1) For the purpose of acquiring such land, or rights in or over such land,--
(a) the Collector shall be deemed to be a Collector, proceeding under the Land Acquisition Act, 1894; (1 of 1894.);
(b) the claimant shall be deemed to be a person interested and appearing before him in pursuance of a notice given under section 9 of that Act;
(c) the provisions of the sections, preceding section 9 of that Act, shall be deemed to have been complied with;
(d) where the claimant does not accept the award made in his favour in the matter of compensation, he shall be deemed, within the meaning of section 18 of the Act, to be a person interested who has not accepted the award, and shall be entitled to proceed to claim relief against the award under the provisions of Part III of that Act;
(e) the Collector, with the consent of the claimant, or the court, with the consent of both the parties, may award compensation in land or money or partly in land and partly in money; and
(f) in the case of the stoppage of a public way or a common pasture, the Collector may, with the previous sanction of the State Government, provide for an alternative public way or common pasture, as far as may be practicable or convenient.
(2) The acquisition under this Act of any land or interest therein shall be deemed to be acquisition for a Page 10 of 24 C/MCA/1383/2013 CAV JUDGMENT public purpose.
25A. Time-limit for completion of acquisition proceedings.--(1) The Collector shall, as far as possible, complete the proceedings under sections 19 to 25 (both inclusive), within a period of two years from the date of notification of declaration of sanctuary under section 18.
(2) The notification shall not lapse if, for any reasons, the proceedings are not completed within a period of two years.
26. Delegation of Collector's powers.-- The State Government may, by general or special order, direct that the powers exercisable or the functions to be performed by the Collector under sections 19 to 25 (both inclusive) may be exercised. and performed by such other officer as may be specified in the order.
26A. Declaration of area as sanctuary.-
(1). When -
[a]. a notification has been issued under section 18 and
the period for preferring claims has elapsed, and all claims, if any, made in relation to any land in an area intended to be declared as a sanctuary, have been disposed of by the State Government; 0r [b]. any area comprised within any reserve forest or any part of the territorial waters, which is considered by the State Government to be of adequate ecological faunal, floral, geomorphological, natural or zoological significance for the purpose of protecting, propagating or developing wild life or its environment, is to be included in a sanctuary, Page 11 of 24 C/MCA/1383/2013 CAV JUDGMENT the State Government shall issue a notification specifying the limits of the area which shall be comprised within the sanctuary and declare that the said area shall be a sanctuary on and from such date as may be specified in the notification:
Provided that where any part of the territorial waters is to be so included, prior concurrence of the Central Government shall be obtained by the State Government; Provided further that the limits of the area of the territorial waters to be included in the sanctuary shall be determined in consultation with the Chief Naval Hydrographer of the Central Government and after taking adequate measures to protect the occupational interests of the local fishermen.
(2). Notwithstanding anything contained in sub-section (1), the right of innocent passage of any vessel or boat through the territorial waters shall not be affected by the notification issued under sub-section (1). (3). No alteration of the boundaries of a sanctuary shall be made by the State Government except on a recommendation of the National Board.
5.1 It will also be profitable to refer to Section 18 of the Act as it stood prior to the amendment, which is quoted below:
"18. Declaration of Sanctuary (1). The State Government may, by notification, declare any area to be a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomorphological, natural or zoological significance for the purpose of protecting, propagating wildlife or its environment.Page 12 of 24 C/MCA/1383/2013 CAV JUDGMENT
(2). The notification referred to in sub-section (1) shall specify, as nearly as possible, the situation and limits of such area.
Explanation: For the purposes of this section, it shall be sufficient to describe the area by roads, rivers, ridges, or other well-known or readily intelligible boundaries.
6. On consideration of the above provisions, it is clear that in section 18 as it stood prior to the amendment, the State Government was vested with the power to declare by notification any area to be a sanctuary if it considered that such area was of adequate ecological, faunal, floral, geomorphological, natural or zoological significance for the purpose of protecting or propagating wildlife or its environment.
However, according to the amended provisions of section 18, the State Government should first declare its intention and thereafter, appoint an officer to act as Collector under the Act to inquire into and determine the existence, nature and extent of rights of any person in or over the land comprised within the limits of the sanctuary which may be notified, and thereafter, the Collector should comply with the provisions of section 19 to 25 of the Act. Such position was not there prior to the amendment. As pointed out above, section 66(4) of the Act clearly provides that where any proceedings under any provision of sections 19 to 25 (both inclusive) is pending on the date of commencement of the amended Act, 1991, any reserve forest or a part of territorial waters comprised within a sanctuary declared under section 18 to be a sanctuary before the date of such commencement Page 13 of 24 C/MCA/1383/2013 CAV JUDGMENT shall be deemed to be a sanctuary declared under section 26A. In such event, it necessarily follows, the other parts than the reserved forest or the territorial water are not sanctuary so long the provisions of sections 19 to 25 are complied with. There is no dispute that in the case before us, in respect of the Balaram Ambaji Wildlife Sanctuary, the provisions relating to sections 19 to 25 are yet to be complied with.
7. From the above facts, it is clear that the Government Resolution which is applicable from the border line of the sanctuary, is not justiciable as the above sanctuary is, in fact, not a sanctuary either declared under section 26A of the Act or a deemed sanctuary.
8. Mr. Iyer, the learned counsel appearing on behalf of the writ-
petitioner-applicants, however, strenuously contended that in the order dated 4th August 2006 passed by the Supreme Court, it is clearly stated that the above distance would be applicable in respect of any sanctuary declared under section 18, 26A or 35A of the Act, and in the case before us, the notification under section 18 having been already passed, the said decision of the Supreme Court will be applicable.
9. We find that the Supreme Court passed such order after the coming into force of the amended provisions of section 18, and it necessarily follows that it referred to section 18 of the Act as Page 14 of 24 C/MCA/1383/2013 CAV JUDGMENT amended. There is no dispute that there was no notification under section 18 as amended. Therefore, the Government Resolution dated 22nd February 2011 has no application to the Balaram Ambaji Wildlife Sanctuary except in respect of those parts which are reserved forest or territorial water.
10. So far as the observation made by the Supreme Court in the aforesaid order dated 4th August 2006, we find that the same was passed while considering the grant of temporary working permit in respect of a different forest, and is an interim direction. We find substance in the contention of Mr. Raval, the learned advocate appearing on behalf of some of the respondents, that the above observation of the Supreme Court is merely an interim direction in a pending matter, and it goes without staying that the same is subject to the final decision that would be subsequently passed.
Consequently, such interim order cannot be said to be a precedent or law laid down by the Supreme Court within the meaning of Article 141 of the Constitution
11. In this connection, we may profitably refer to the following observations of the Supreme Court in paragraph 10 of the judgment in the case of STATE OF ASSAM v. BARAK UPATYKA reported in AIR 2009 SC 2249 :-
"10. A precedent is a judicial decision containing a principle, Page 15 of 24 C/MCA/1383/2013 CAV JUDGMENT which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The observations and directions in Kapil Hingorani (I) and (II) being interim directions based on tentative reasons, restricted to the peculiar facts of that case involving an extraordinary situation of human rights violation resulting in starvation deaths and suicides by reason of non-payment of salaries to the employees of a large number of public sector undertakings for several years, have no value as precedents. The interim directions were also clearly in exercise of extra- ordinary power under Article 142 of the Constitution. It is not possible to read such tentative reasons, as final conclusions, as contended by the respondent. If those observations are taken to be a final decision, it may lead to every disadvantaged group or every citizen or every unemployed person, facing extreme hardship, approaching this Court or the High Court alleging human right violations and seeking a mandamus requiring the State, to provide him or them an allowance for meeting food, shelter, clothing, salary, medical treatment, and education, if not more. Surely that was not the intention of Kapila Hingorani (I) and (II).
12. In another decision of the Supreme Court in the case of AMARJEET SINGH and ORS. V. DEVI RATAN AND OTHERS reported in AIR 2010 SC 3676, the Supreme Court held as under in Page 16 of 24 C/MCA/1383/2013 CAV JUDGMENT paragraph 15 :-
"15. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no one, becomes applicable in such a case. In such a fact situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court.(Vide Shiv Shankar and Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation and Anr., 1995 Suppl. (2) SCC 726; M/s. GTC Industries Ltd. v. Union of India and Ors., AIR 1998 SC 1566 :
(1998 AIR SCW 1089); and Jaipur Municipal Corporation v. C.L. Mishra, (2005) 8 SCC 423).
13. We, thus, find that the aforesaid interim direction passed by the Supreme Court in the above matter is merely an interim order passed in a pending proceeding and that too, in respect of a different forest.
We further find substance that this is not a case of temporary working permit but this is a case where there is an existing lease with the Page 17 of 24 C/MCA/1383/2013 CAV JUDGMENT Government and on that ground also, we cannot say that the said interim order of the Supreme Court is applicable to the facts of the present case.
14. Mr. Iyer, however, strongly relied upon another decision of the Supreme Court dated 21st April 2014 in the case of GOA FOUNDATION vs. UNION OF INDIA & ORS. in Writ Petition (C) No. 99 of 2013 and analogous matters in support of his contention that the interim order dated 4th August 2006 and 4th December 2006 in T.N. Godavarman Thirumulpad v. Union of India & Ors. have been construed to be a declaration of law by the Supreme Court in the above decision, and thus, the same should be treated as a precedent.
In order to appreciate the aforesaid submission, paragraphs 42 of the judgment in the case of GOA FOUNDATION [supra] would be relevant, which is quoted below:-
42. We may now examine whether this Court has by the orders passed on 04.08.2006 and 04.12.2006, prohibited mining activities around National Parks or Wildlife Sanctuaries. When we read the order of this Court passed on 04.08.2006 in T.N. Godavarman Thirumulpad v. Union of India & Ors., we find that the Court while considering the question of grant of Temporary Working Permits for mining activities in National Parks, Sanctuaries and forest areas, directed that Temporary Working Permits shall be granted only where the conditions stipulated in the said order are satisfied. Condition Nos. (ii) and (iii) stipulated in the order dated 04.08.2006 are extracted herein below:Page 18 of 24 C/MCA/1383/2013 CAV JUDGMENT
"(ii) The mine is not located inside any National Park/Sanctuary notified under Section 18, 26-A or 35 of the Wildlife (Protection) Act, 1972;
(iii) The grant of the T.W.P. would not result in any mining activity within the safety zone around such areas referred to in
(ii) above, (as an interim measure, one kilometre safety zone shall be maintained subject to the orders that may be made in I.A. No.1000 regarding Jamua Ramgarh Sanctuary);'"
It would, thus, be clear that this Court was of the opinion that grant of Temporary Working Permits should not result in any mining activities within the safety zones around a National Park or Wildlife Sanctuary and as an interim measure, one kilometer safety zone was to be maintained subject to the orders that may be made in I.A. No.1000 in Jamua Ramgarh Sanctuary. This order dated 04.08.2006 has not been varied subsequently nor any orders made in I.A.No. 1000 regarding Jamua Ramgarh Sanctuary saying that Temporary Working Permits can be granted within one kilometer safety zone beyond the boundaries of a National Park or Wildlife Sanctuary. The result is that the order passed by this Court saying that there will be no mining activity within one kilometer safety zone around National Park or Wildlife Sanctuary has to be enforced and there can be no mining activities within this area of one kilometer from the boundaries of National Parks and Wildlife Sanctuaries in the State of Goa.
14.1 The last sentence of paragraph 42 quoted above specifically stated that the Supreme Court relied upon the said observation for the purpose of implementation of the same in the Page 19 of 24 C/MCA/1383/2013 CAV JUDGMENT State of Goa, and ultimately in paragraph 71 of the judgment, made the following final order.
71. In the result, we declare that:
(i) the deemed mining leases of the lessees in Goa expired on 22.11.1987 and the maximum of 20 years renewal period of the deemed mining leases in Goa expired on 22.11.2007 and consequently mining by the lessees after 22.11.2007 was illegal and hence the impugned order dated 10.09.2012 of Government of Goa and the impugned order dated 14.09.2012 of the MoEF, Government of India are not liable to be quashed;
(ii) dumping of minerals outside the leased area of the mining lessees is not permissible under the MMDR Act and the Rules made there under;
(iii) until the order dated 04.08.2006 of this Court is modified by this Court in I.A. No.1000 in T.N. Godavarman Thirumulpad v. Union of India & Ors., there can be no mining activities within one kilometer from the boundaries of National Parks and Sanctuaries in Goa;
(iv) by the order dated 04.12.2006 in Writ Petition (C) No.460 of 2004 (Goa Foundation v. Union of India), this Court has not prohibited mining activities within 10 kilometers distance from the boundaries of the National Parks or Wildlife Sanctuaries;
(v) it is for the State Government to decide as a matter of policy in what manner mining leases are to be granted in future but the constitutionality or legality of the decision of the State Government can be examined by the Court in exercise of its power of judicial review.
And we direct that:
Page 20 of 24 C/MCA/1383/2013 CAV JUDGMENT(i) MoEF will issue the notification of eco-sensitive zones around the National Park and Wildlife Sanctuaries of Goa after following the procedure discussed in this judgment within a period of six months from today;
(ii) the State Government will initiate action against those mining lessees who violate Rules 37 and 38 of the MC Rules;
(iii) the State Government will strictly enforce the Goa (Prevention of Illegal Mining, Storage and Transportation of Minerals) Rules, 2013;
(iv) the State Government may grant mining leases of iron ore and other ores in Goa in accordance with its policy decision and in accordance with MMDR Act and the Rules made thereunder in consonance with the constitutional provisions;
(v) until the final report is submitted by the Expert Committee, the State Government will, in the interests of sustainable development and intergenerational equity, permit a maximum annual excavation of 20 million MT from the mining leases in the State of Goa other than from dumps;
(vi) the Goa Pollution Control Board will strictly monitor the air and water pollution in the mining areas and exercise powers available to it under the 1974 Act and 1981 Act including the powers under Section 33A of the 1974 Act and Section 31A of the 1981 Act and furnish all relevant data to the Expert Committee;
(vii) the entire sale value of the e-auction of the inventorised ores will be forthwith realised and out of the total sale value, the Director of Mines and Geology, Government of Goa, under Page 21 of 24 C/MCA/1383/2013 CAV JUDGMENT the supervision of the Monitoring Committee will make the following payments:
(a) Average cost of excavation of iron ores to the mining lessees;
(b) 50% of the wages and dearness allowance to the workers in the muster rolls of the mining leases who have not been paid their wages during the period of suspension of mining operations;
(c) 50% of the claim towards storage charges of MPT. Out of the balance, 10% will be appropriated towards the Goan Iron Ore Permanent Fund and the remaining amount will be appropriated by the State Government as the owner of the ores;
(viii) the Monitoring Committee will submit its final report on the utilization and appropriation of the sale proceeds of the inventorised ores in the manner directed in this judgment within six months from today;
(ix) henceforth, the mining lessees of iron ore will have to pay 10% of the sale price of the iron ore sold by them to the Goan Iron Ore Permanent Fund.
(x) the State Government will within six months from today frame a comprehensive scheme with regard to the Goan Iron Ore Permanent Fund in consultation with the CEC for sustainable development and intergenerational equity and submit the same to this Court within six months from today;
and Page 22 of 24 C/MCA/1383/2013 CAV JUDGMENT
(xi) the Expert Committee will submit its report within six months from today on how the mining dumps in the State of Goa should be dealt with and will submit its final report within twelve months from today on the cap to be put on the annual excavation of iron ore in Goa.
15. From the ultimate decision arrived at in the above case, it is clear that the Supreme Court did not lay down any law that the aforesaid decision of 2006 is a pronouncement of law but in the facts of the case of Goa Foundation, decided to apply the same. Moreover, in the present cases, we are not concerned with the expired mining lease, but is one of subsisting mining lease.
16. We, therefore, find that the said decision cannot be said to be a law laid down by the Supreme Court in order to bind as a general rule in respect of all sanctuaries.
17. On consideration of the above contentions, we find that that there is no illegality in our order dated 24th June 2013 passed in Civil Applications No. 6181 of 2013, 6184 of 2013 and 6189 of 2013 thereby interpreting our order dated 25th April 2013 passed in Civil Application No.3858 of 2013 indicating that the restriction of mining can be implemented only from the boundary of the reserved forest either declared under section 26A or deemed declaration of sanctuary within the meaning of section 66(4) of the Act. We make it clear that our observations herein being made while dealing with interim order, Page 23 of 24 C/MCA/1383/2013 CAV JUDGMENT it is needless to mention, are tentative for the purpose of disposal of the interim order and will not binding upon the parties at the time of final disposal of the public interest litigation. These Civil Applications are devoid of any substance, and are dismissed accordingly. No costs.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 24 of 24