- (1.) This Court, while dealing with a number of interlocutory applications filed by different parties including ABG Cement Limited (the applicant herein), passed the following order on 7.5.2010: "Heard There are large number of applications seeking permission for mining operations in the State of Gujarat. An objection was raised on the ground that those mining sites are very close to the 'Narayan Sarovar Chinkara Sanctuary'. We had earlier passed orders that there shall not be any mining operations within the prescribed limits. Learned counsel appearing for the applicants submits that there are several mining sites within a short radius of the 'Narayan Sarovar Chinkara Sanctuary' and any mining at those sites must be prohibited. Having reagrd to these facts, we direct that there shall not be any mining operations within the radius of 3 kilometers from the outer boundary of the 'Narayan Sarovar Chinkara Sanctuary'. The State Government shall ensure that these directions are strictly implemented. In case of any violation, the State will be at liberty to cancel the mining licence of the violator(s)."
(2.) It would be pertinent to mention, that the above order came to be passed with reference to 'Narayan Sarovar Chinkara Sanctuary'. Based on the afore-stated directions, the Central Empowered Committee (hereinafter referred to as the 'CEC') submitted its report dated 23.06.2010.
(3.) A two Judge Division Bench of this Court, by an order dated 22.07.2011, approved the findings recorded in the report dated 23.06.2010. It would however be pertinent to mention, that some of the conditions, more particularly, condition no.2 recommended to be imposed by the CEC, was contested by the applicant herein, namely, ABG Cement Limited. The instant legal/factual position is apparent from the order passed by this Court on 22.07.2011, which is extracted hereunder: "Item No. 302 The State of Gujarat has filed an application before the Central Empowered Committee ("CEC") seeking permission to delete 2105.42.41 hectares forest area in 57 villages in four districts of Gujarat State under Section 4 of the Indian Forest Act, 1927 (hereinafter referred to as 'the Act'). Details of which are furnished along with the application. CEC placed that application with a report before this Court seeking appropriate orders on the request made by the State of Gujarat. CEC in its report dated 23.6.2010 endorsed the deletion of the areas approved by the Forest Settlement Officer after acknowledging the rights of the villagers in response to the areas notified under Section 4 of the Act. Further it was also reported that the areas have by and large being decided to be excluded on genuine grounds as mentioned in the above mentioned Act. C.E.C., however, imposed following conditions. 1. no area will be deleted on the ground of its allotment done after the issue of notifications under Section 4 of the Indian Forest Act; 2. None of the deleted area will be allowed to be used for mining without obtaining approval under the Forest (Conservation) Act, 1980; 3. for deletion of the area approval under the Forest (Conservation) Act, 1980 will be obtained. However, no NPV or compensatory afforestation charges will be payable as the areas are to be deleted for settlement of rights as per the provisions of the Indian Forest Act, 1927 and 4. the balance areas will be notified as Reserved Forest under section 20 of the Indian Forest Act, 1980. Being aggrieved by condition no.2, stated herein before, ABG Cement Limited has approached this Court seeking intervention and stated that its rights are effected by condition no.2 suggested in CEC report. Mr. Andhyarujina, learned senior counsel appearing for the intervenor submitted that ABG Cement Limited had made an application before the Government of Gujarat for the grant of the mining lease in certain tracts of barren land aggregating 730.60 hectares of land in Village Nani Ber for limestone mining. Further it is stated that after the order passed by the Forest Settlement Officer, the State of Gujarat has granted approval to the ABG Cement Limited for limestone mining of 730.60 hectares of land in village Nani Ber and by letter dated 30.6.207 called upon the ABG Cement Limited to make the payment of Rs.32,94,500 towards the prospecting charges. Learned senior counsel has further submitted that once the land is deleted on the proposed forest under Section 4 following the procedure under Section 11 of the Act, such land seized to be forest land and therefore provisions of Section 2 of the Forest (Conservation) Act, 1980 do not apply and there is no requirement of obtaining prior approval of the Central Government under that Act. Learned senior counsel has submitted that C.E.C. has wrongly relied upon the Ministry of Environment and Forests (MOEF) guidelines, which was annexed as Annexure R-4 and stated that these guidelines do not refer to lease which are deleted under the Notification under Section 4 of the Act. Reference was also made in the judgment of this Court in Union of India vs. Abdul Jalil, 1954 4 SCR 158. Mr. P.S. Narasimha, learned amicus curiae and the learned counsel appearing for the State of Gujarat submitted it is unnecessary to examine those contentions at this stage and the application preferred for intervention itself is premature. Further in the reply affidavit filed by the State of Gujarat it is stated that no lease has formerly been granted to the ABG Cement Limited in any of the areas notified under Section 4 of the Act and certain proposal regarding deletion of the lease submitted by the Government of India is pending consideration before the Ministry of Environment and Forests (MOEF). Further, it was also pointed out that ABG Cement Limited had also made an application for seeking approval under the Forest (Conservation) Act, 1980 before the concerned Ministry. We are of the view that, at this stage, it is unnecessary to examine various contentions raised by the learned senior counsel for ABG Cement Limited, since we are only concerned with the question whether the application preferred by the State of Gujarat for deletion of forest land be granted or not. CEC report is in favour of the deletion subject to certain conditions. The Ministry of Environment and Forests (MOEF) in its letter dated 7.1.2010 produced as Annexure R-3 before this Court has stated that the application be considered favourably under such circumstances we are of the view that the request made by the State of Gujarat for deletion of the area as shown in its application is justified. We therefore allow the application as prayed for. However, with regard to the condition no.2 imposed by CEC, we express no final opinion specially in view of the stand taken by the State of Gujarat that no lease has formerly been granted to ABG Cement Limited in any of the areas as notified under Section 4 of the Act. ABG Cement Limited therefore would be aggrieved by the condition imposed by CEC, only if the State Government executes a lease deed in its favour or grants permission for mining, which is yet to happen. We therefore leave that question open. Learned senior counsel has further submitted that he would be permitted to move an application before the Ministry of Environment and Forests(MOEF) seeking approval for the grant of lease and also to make a plea before the Ministry of Environment and Forests (MOEF) for permission under the Forest (Conservation) Act, 1980 and also to challenge the condition no.2 ABG Cement Limited, if so advised may raise all those contentions before the Ministry of Environment and Forests (MOEF) and it is for the MOEF to consider with which we express no final opinion. IA No. 2881 of 2009 preferred by the State of Gujarat for deletion stands allowed, as above. IA Nos. 3026-3027 filed by ABG Cement Limited are accordingly disposed of." (underline is ours) ;