Arun Mishra - (1.) SINCE common questions of law and facts are involved in both the writ petitions, they were heard together and are being decided by this common order. D.B.Civil Writ Petition No.2959/1996 The writ petition no.2959/1996 has been filed by the Union of India through Railways with the following prayers:- "(i) by an appropriate writ, order or direction, the mining activities within a distance of fifty meters from the Railway line may be ordered to be closed down immediately and all mining leases granted within a distance of 50 mtrs. from the railway lines be declared illegal and void with a further direction to the Mining Department to take steps to close those mining activities; (ii) by an appropriate writ, order or direction, a proper committee may be ordered to be constituted for submitting a report to the Court about the illegal mining activities which is being carried on near the Railway line in the prohibited limits near the Railway lines which are situated in a distance of ten kilometers around the Makrana Railway Station; (iii) by an appropriate writ, order or direction, the respondents may be directed to take immediate action against the persons who are undertaking illegal mining activities and to prosecute them for committing offence under the Railways Act, 1989, Indian Penal Code and the Mines and Mineral (Regulation and Development) Act, 1957 and to take further steps to prevent any such mining activities in future. (iv) by an appropriate writ, order or direction, it may further be ordered that all injunctions granted by any Civil Court permitting any mining to operate in the prohibited zone shall stand vacated and the civil suits filed and pending in the courts of Civil Judge, Makrana and Parbatsar or any other court in relation to the subject matter in question may be ordered to be dismissed..."
(2.) THE petitioners-Railways, who are responsible for maintenance and safe running of Rail traffic both goods and passengers, have submitted that under the programme of conversion of meter gauge to broad gauge, the railway line between Jaipur and Jodhpur was converted to broad gauge from meter gauge and branch lines were also converted. After laying down broad gauge line, heavy traffic of goods and passenger trains started on Jodhpur-Jaipur route and now the load per goods train is more than 4500 tonnes which was about 1250-1300 tonnes per goods train in meter gauge. It was further submitted that in between the railway line falling from 65/8 to 67/0 kms. between Makrana and Borawar Railway Stations and on portion of the track in the line Makrana to Parbatsar in between 0/17 to 4/2, large number of mining activities are carried on daily near the railway track. THEse mines are mainly of marbles and the Mining Department of the State has granted mining leases for carrying out mining operations in flagrant violation of the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the Act of 1957"), THE Mineral Concession Rules, 1960 (hereinafter referred to as "the Rules of 1960") and the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as "the Rules of 1986"). Even where the leases have been granted beyond the prescribed limits from Railway lines, the authorities of the Mining Department and the Police Department are permitting the mining activities underneath beyond the leased area causing serious threat to the railway lines and saftey of the passengers and goods trains. As per the provisions of Rule 27(1)(h) of the Rules of 1960, no mining lease can be granted nor any mining operations can be carried out at any point within the distance of 50 meters from any Railway line except under and in accordance with the written permission of the Railway Administration concerned. Similarly, under Rule 18(26) of the Rules of 1986, no mining lease can be granted for a minor mineral nor a lease can be allowed to work at any point within the distance of 45 meters from any railway line except with the previous permission of the Railway Administration concerned. Despite such restrictions, the Mining Department of the State has been granting mining leases within the distance of 45 meters from the railway line in relation to minor minerals and 50 meters from the railway line in relation to major minerals. THE petitioners-Railways have been writing letters from time to time to the State authorities apprising that illegal mining activities were going on near railway line and it may result in untoward incident and thus, immediate steps be taken to stop illegal mining near the railway track. Even in the cases where mining leases have been granted beyond the prescribed limits, the lease holders are operating their mines beyond the leased area towards the railway line beneath the surface and because of such illegal mining activities, on 4.9.1996, support under the big piece of railway line between Makrana & Parbatsar Section has lost its ground which resulted in hanging of railway line in the air, which is evident from the photograph Annex.1 to the petition. Fortunately, no railway traffic was started on that section, otherwise incident might have resulted in disaster claiming many human lives. It was further submitted that even at a distance of about 10 kms. from railway line around Makrana Railway Station, the lease holders are carrying on mining activities in an illegal manner and they are also using explosives for carrying out the mining operations and such illegal activities may at any time cause loss of goods and human lives. Apart from writing so many letters to the Mining Department and State Administration, the petitioners have also held meetings with the authorities concerned to stop such illegal mining activities and to cancel mining leases and various letters and minutes of the meetings have been placed on record as Annex. 2 to Annex.27 to the writ petition. It was further submitted that when the action was being taken for cancellation of the leases, the lease holders approached the civil courts and the civil courts granted injunction in their favour subject to certain terms and conditions. The petitioners have also challenged the proceedings and grant of injunctions by the civil courts contending that under the garb of injunctions, the lease holders are even carrying on mining operations in the prohibited areas causing damage to the railway line and posing serious threat to the public safety. The Mining Department was not taking any action to stop mining activities which are being carried on in contravention of the injunctions granted by the civil courts on 25.1.1993, 25.1.1993 and 5.5.1993, which are placed on record as Annex.28, 29 and 30 respectively. It was further contended that the civil courts have stayed all proceedings for cancellation of the mining leases and the only restriction imposed on the lease holders was that they would not undertake mining operations towards railway lines and during the period of running of the trains, no mining activities would be carried out. Under the orders of the Civil Courts, the lease holders are carrying out mining operations even in the prohibited areas and in most of the cases they are undertaking the activities underneath i.e. below surface making it hollow and posing serious threat to the railway lines and safety of the goods and passengers trains. Relying on the provisions of Section 19 of the Act of 1957, which provides that any mining lease or prospecting license granted, renewed or acquired in contravention of the provisions of the Act or any Rules or orders made thereunder shall be void and of no effect and also on Section 27 of the Act of 1957, which debars the maintainability of any suit for any action taken in good faith, it was submitted that civil courts have no jurisdiction to entertain the civil suits and apart from this, the injunctions granted are against the public interest. Furthermore, the respondents- authorities are not taking any action to prevent illegal mining activities in the prohibited areas and also such mining activities which are in blatant violation of the injunctions granted by the civil courts. Reliance was also placed on the provisions of Section 151 of the Railways Act, 1989, under which, damage to the Railway property by any person is an offence. Even illegal mining activities constitute offence under the provisions of the Indian Penal Code and the Act of 1957, however, no action was being taken by the concerned authorities of the State to stop illegal mining activities near the railway track despite repeated requests made by the Railway authorities. Hence, the present writ application was filed with the prayers mentioned above. In return filed by the State of Rajasthan, it is stated that there is rich deposit of minor mineral marble at Makrana and the excavation of marble has been continuing for centuries. Earlier the rights were hereditary and now the same are governed under the provisions of the Act of 1957 and the Rules of 1986 framed thereunder. Loading and unloading of the marble used to take place from Makrana to Kola Dungari and later on, it was extended to village bidiyad and then upto Parbatsar. Earlier mining used to be done beyond the railway boundaries and there was no complaint of any damage to the Railway lines. The meter gauge lines were changed into broad gauge lines and there was some change in the alignment. Thereafter, the Railway authorities requested the Mining Department to prevent the quarry license holders from continuing with the mining operations within 45 meters from the railway track and in compliance thereof, notices were issued to show cause why licenses should not be cancelled. Aggrieved thereby, the license holders approached the civil courts by way of filing suits and obtained injunctions. Due to pendency of civil suits, no writ can be issued. Some of the quarry operators might have infringed the conditions of the license and encroached upon the Railway lines and have done mining under the railway lines causing harm to the track. FIRs against such persons have been lodged. A committee was constituted to examine the danger to the railway lines in Makrana area and after inspecting the mines, the Committee submitted the report and considering it, the then Chief Minister of Rajasthan wrote a letter to the then Railway Minister on 4.6.1991 for shifting of the track so that the valuable marble can be utilized and at the same time, the railway facilities are available to the general public. Thereafter, vide letter dated 24.3.1992 (Annex.R/8), the Railway Minister informed about the decision to stop the Makrana Parbatsar branch line. The State Government took appropriate steps, however, the Railways did not implement the decision. Since Railway was suffering loss on account of operating shuttle train from Makrana to Parbatsar and back, the line was not shifted. Considering the interest of license holders and economy, it was necessary to shift the railway line from Makrana to Parbatsar, however, it was not changed. It appears that earlier meter gauge line was existing from Makrana to Parbatsar and later on, it was changed and instead of meter gauge line, broad gauge line was laid down by the Railways in the year 1994. It further appears that illegal mining went on and broad gauge line which was newly laid was also made to hang in the area as blasting used to be done for mining purposes. A reply to the writ petition was also filed on behalf of respondent-Nathmal in which apart from taking preliminary objections about maintainability of the writ petition due to pendency of civil suits amongst same parties, it was submitted that since 1993 the Parbatsar Makrana track was not being used as it was abandoned. The railway authorities were fully aware of the situation, as such, railway line/track ought to have been laid away from the mines. The mining activities were not causing any serious threat to the Railway lines or the safety of the passengers and goods trains.
(3.) IN the rejoinder, Union of INdia contended that mining operations have been undertaken within 45 meters of the railway line in violation of statutory restriction contained in the Metalliferous Mines Regulations, 1961 (hereinafter referred to as "the Regulations of 1961"). Regulation 109 is almost in similar terms as that of corresponding provisions in Rajasthan Minor Mineral Concessions Rules, 1986. There is no authority with the license holders to undertake mining activities within prohibited area of 45 meters from the railway lines. D.B.Civil Writ Petition No.530/1997 The writ petition no.530/1997 has been filed by Sangmarmar Khan Vikas Samiti with the prayer that the respondents-Union of India and its functionaries be directed not to take any steps for operating the railway line as presently standing and to so divert the railway line that it does not need stopping of the quarrying activities in Makrana Town and around and the quarrying activities may be permitted to go on as the same were going on before stay being granted in D.B.Civil Writ Petition No.2959/96. The petitioner is Association registered under the Societies Registration Act and the marble quarry owners of Makrana are its members. According to the petitioner, Makrana is famous for its marble and the history of Makrana Marble is centuries old, so much so that it is the marble of Makrana which was used by Mughal emperors in constructing Taj Mahal at Agra and by English people in erecting Victoria Memorial at Calcutta. Makrana quarries are divided in several ranges; one of the ranges is known as Chak Dungri Range which has rich deposits of very fine marble and it is superior to the marble available in Italy and is exported also out of India. ;