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At this stage, we directed the Government of India to file an affidavit making their stand clear in the matter. Accordingly, an affidavit sworn to by Shri S. P. Singh, Deputy Director in the Ministry of Environment and Forest, Project Tiger, New Delhi has been filed. It is stated in the affidavit that the area declared as project tiger/tiger reserve is covered by notifications issued under the Rajasthan Forest Act, Environment (Protection) Act, 1986 and Mines and Minerals (Regulation and Development) Act, 1957. It is submitted that the Forest (Conservation) Act applies not only to reserve and protected forest but to all areas recorded as forest in Government records. Mining is non-forestry activity and, therefore cannot be carried on in the areas to which Forest (Conservation) Act applies without the prior approval of the Government of India. It is stated further that on May 7, 1992, the Government of India has issued the final notification under Section 3 of the Environment (Protection) Act, 1986 prohibiting all mining activity, except with the approval of the Government of India, in the protected forest, Sariska National Park and certain areas of Alwar District mentioned in the Notification. Since no permission is obtained under any of the said enactments with respect to the said 262 mines, it is submitted, no mining operations can be carried on in the area until and unless they obtain the permission of the Central Government. Indeed. the prohibition extends not merely to protected forest areas but to the entire area declared as tiger reserve and as Sariska National Park. A copy of the notification dated May 7, 1992 issued under Section 3 of the Environment (Protection) Act is appended to the affidavit. It is necessary to notice the relevation portions of the said notification. They read:

(iv) all areas of Sariska National Park and Sariska Sanctuary notified under the Wildlife (Protection) Act, 1972 (53 of 1972). "

(emphasis added) We have heard Dr. Rajiv Dhawan, counsel for the writ petitioner, Shri Aruneshwar Gupta, counsel for the State of Rajasthan and S/Shri M.C. Bhandare and P. Chidambaram, council appearing for the mine-owners. Certain other mine- owners have intervened. We permitted them to file their written Submissions.

Dr. Rajiv Dhawan submitted that in view of the earlier orders of this court and the report of the committee, all the mining activity in all the areas declared as protected forest and in the areas notified under the notification dated May 7, 1992 should stop forthwith. Indeed, he says, it should have stopped long ago. Continuance of mining activity is in gross contempt of this court and constitutes a clear violation of its orders. The Government of Rajasthan is equally guilty of contempt in as much as it has come forward with an application for directions instead of taking stringent action forthwith to stop the mining activity in all the listed mines. As a matter of fact, he says, the Government of' Rajasthan appears to be colluding with the mine-owners which is evident from the dissent expressed by the officers of the Rajasthan Government (who were members of the Committee appointed by this Court) to the straight-forward and logical recommendation of the Chairman of the Committee. The Government of India's affidavit places the matter beyond doubt. Not only the mining operations in the listed mines should be injunction forthwith but the mine owners and the Government of Rajasthan should be proceeded against for contempt says the counsel. He pointed out further that the mining leases granted by the Government of Rajasthan are ex-facie illegal inasmuch as prior permission of the Central Government was admittedly not obtained for the said leases as required by the Forest (Conservation) Act and Rule 4(6) of the Rajasthan Minor Mineral Concession Rules. Prohibition of mining flows from the provisions of the Forest (Conservation) Act as, well as the notification issued under the Environment (Protection) Act in May, 1992. Shri Aninseshwar Gupta, learned counsel for the State of Rajasthan submitted that the Rajasthan Government and its officers were not aware, when they granted leases/licences in respect of listed mines that they fell within the area declared as protected forest. Indeed, a certificate was issued by the Forest Department to the effect that they did not fall within the protected forest area. It was thus a bonafide grant. The boundaries of the areas declared as protected areas were not clearly known nor were they demarcated on the spot. Of course, it now turns out that the said listed mines fall wholly or partly within the protected forest but for the reasons mentioned in the application filed by the Government of Rajasthan, the area of five sq. kilometers should be allowed to be deleted from out of the protected forest subject to the conditions offered in the said application. Counsel says that the Government of Rajasthan is neither colluding with the mine- owners nor has it any intention to flout the orders of the court. It is prepared to abide fully by the orders of this court. It has already shut down 54 mines. It is also prepared to shut down all the other listed mines if this court so directs. It is. however, making an earnest request that it may be allowed to exclude the areas covered by these mines from the protected forest in public interest. Learned counsel has placed before us map, said to have been prepared by the officers of the Rajasthan State, showing the areas covered by tiger reserve, sanctuary, protected forest and the location of the listed mines.

(A) Section 2 of the Forest(Conservation)Act read with Section 29 of the Rajasthan Forest Act and Rule 4 (6) of the Rajasthan Minor Mineral Concessions Rule.

Section 29 of the Rajasthan Act empowers the Government to declare any forest land or waste land to be a protected- forest. Subsection (1) says that, "the State Government may by notification in the official gazette declare the provisions of this chapter applicable to any forest land or waste land which is not included in a reserve forest hut which is the property of the State Government or over which the State Government has proprietary rights" It is not disputed in this case that the land over which the listed mines (mines listed in Appendix A and to the Report of the Justice M.L. Jain Committee) are situated is the property of the State Government. The State Government is empowered not only to declare any forest land as a protected forest but also any waste land as such. The idea evidently is not only to protect the existing forest hut also to bring waste lands under schemes of afforestation. Once declared as protected forest the distinction between forest land and waste land disappears. The entire area becomes a protected forest. Before, however, declaring any forest land or waste land as a protected forest, the State Government is obliged to make an enquiry into the nature and extent of the rights of the State Government and of private persons in or over the forest land or waste land proposed to be declared as protected forest and record the same at a survey or settlement or in such other manner as the State Government thinks sufficient. This is the requirement of sub-section (3). However, the proviso to sub-section (3) empowers the State Government, in case it thinks that such an enquiry and record will occupy such length of time as in the meantime to endanger the rights of the State Government, it may, pending such enquiry and record, declare a particular area to be a protected forest without, of course, abridging or affecting any rights of individuals or communities. Sub-section (4) empowers the State Government to delete any area from out of the area declared as protected forest. Reading Section 29 as a whole, it appears, the normal rule is to make an enquiry into the rights of the State Government and of the private parties over the land proposed to be declared as protected forest in the first instance, prepare a record thereof and then declare it as a protected forest. But in case of urgency it is open to the State Government to issue such notification forthwith subject, of course, to the existing rights of individuals and communities in the area concerned. In this case, the notification dated January 1, 1975 issued by the Government of Rajasthan appears to be one issued under the proviso to sub-section (3). Sri Bhandare submits that a notification issued under the proviso to sub- section (3) is only an interim or provisional notification and that after conducting the enquiry contemplated by the main limb of sub-section,(3) a regular and proper notification under sub-section (1) has still to be issued. Until then, he submits, the declaration as protected forest does not take effect. We are not prepared to agree. Section 29 contemplates only one notification declaring an area as a protected forest. Whether issued after a normal enquiry and record or without enquiry or record, Section 29 contemplates only one notification and not two in any event. Therefore, the notification issued is the valid and effective one. It is not a provisional or preliminary notification. It is not also the case of the mine-owners that leases or licences in their favour were granted prior to January 1, 1975. All of them were granted in the middle of or in the late eighties. The savings clause contained in the proviso to sub-section (3) does not avail them.

Once an area is declared as a protected forest, it comes within the purview of the Forest (Conservation) Act, 1980. It becomes a forest land within the meaning of Section 2. The effect of this position is that no non-forest activity can be carried on in the said area except with the prior approval of the Central Government. Even the State Government cannot carry on any such non-forest activity in the said area without such prior approval. That the mining activity amounts to non-forest purpose is beyond dispute. Thus, the grant of mining leases/licences and their renewal by the State Government. without obtaining the prior approval of the Central Government, in respect of the mines situated within the protected forest, after January 1, 1975 is contrary to law. All the mines listed in Appendix A to the committee's report do fall within the areas declared as protected forest while the mines listed in Appendix B fall partly within and partly outside such areas. According to Rule 4(6) of the Rajasthan Minor Mineral Concession Rules, 1986 too, no mining )ease could have been granted or renewed within the forest "without clearance from the Central Government. in accordance with the Forest (Conservation) Act, 1980 and the Rules made thereunder". Admittedly, no such prior approval or clearance of Central Government was obtained. The Chairman of the Committee, Sri justice M.L. Jain has recommended that 215 mines mentioned in appendix A to his report, which are situated wholly within the protected forest should he closed forthwith. There can hardly be any valid objection in law to the said recommendation. Similarly, with respect to 47 mines mentioned in appendix-B to the report, the learned Chairman has recommended that they should be closed forthwith in so far as they fall within the protected forest. To this recommendation also, there can be no valid objection in law. At this stage, it would be appropriate to consider the application filed by State of Rajasthan for permission to delete an extent of 5.02 sq. Km. from out of the protected forest. The application is confined only to 208 mines out of 262 listed mines. 54 mines mentioned in para (9) of the application are proposed to be closed: indeed, according to the counsel for the State, they have already been closed. Reliance is placed upon the order dated May 14, 1992 in this behalf. It is pointed out that the said order does contemplate such modification, of course, with the permission of this Court and for valid reasons. It is pointed out that for such deletion or modification, the prior approval of the Central Government is not required. No such requirement is prescribed either in the Forest (Conservation) Act or Rajasthan Forest Act, it is submitted. In this context, the submission of Sri M.C. Bhandare may also be considered. He says that there are a number of mines around and outside the area declared as protected forests and that no purpose would be served by merely closings the mines within the protected forest and leaving those outside unhindered. He says that all these mines within and outside, are within the tiger reserve, as per the Rajasthan Government map though outside the sanctuary. May be so.