SINGHVI, J. - (1.) PLAINTIFF-petitioner has filed this revision petition against the order dated, 23. 4. 1992 of the Civil Judge, Jhalawar passed in Civil Miscellaneous Appeal No. 10/90, whereby the learned Civil Judge has set aside the order of injunction passed by the Munsiff and Judicial Magistrate, Jhalawar on 30. 10. 1986 in favour of the plaintiff-petitioner.
(2.) FACTS of the case are that the plaintiff-petitioner was granted a mining lease for an area of 120x60 sqr. meters in Khasra Nos. 99,100 and 219 in Jhalarapatan Forest area Idwasa Hussain Tekri. The Divisional Forest Officer granted permission on 15. 10. 1979 for mining operations. According to the plaintiff- petitioner there is a way in Khasra No. 219 through which his tractor Truck, bullock-cart etc. have been passing through. In the year 1986 the authorities of the Forest Department constructed a closure and have thus prevented the plaintiff-petitioner from using way to the mining area. This has been done notwithstanding the fact that the lease has been renewed by the Mines Department. Plaintiff-petitioner filed a suit in the Court of Munsif and Judicial Magistrate, Jhalawar for permanent injunction and at the same time, he filed an application for temporary injunction with a prayer that during the pendency of the suit the disputed way should be made open for use of the plaintiff-petitioner so that he may effectively carry out his mining operations. Defendant-non-petitioners contested the application for temporary injunction and asserted that the petitioner is not entitled to carry on the mining operations because No Objection Certificate has not been given by the Forest Department and issue of such a No Objection Certificate is a condition precedent for carrying out any mining operation in, view of the provisions contained in the Forest (Conservation)Act, 1980 and Rajasthan Minor Mineral Concession Rules, 1986. After hearing the parties learned Munsiff and Judicial Magistrate held that mine was operational; since 1979 and the Rajasthan Minor Mineral Concession Rules have come into force in 1986. These rules are not applicable to the case of the plaintiff. Learned Munsiff further held that irreparable injury will be caused to the plaintiff-petitioner if he is not allowed to use the way in dispute. Against the' order of injunction the State Government filed and appeal and the same was transferred to the Civil Judge, Jhalawar for disposal. Learned Civil Judge expressed the view that in terms of Rule 4 (6) of the Rajasthan Minor Mineral Concession Rules, 1986 No Objection Certificate from the Forest Department was necessary before the plaintiff petitioner could carry out mining operations and since no such No Objection Certificate had been given by the Forest Department, the petitioner was not entitled to carry on the mining operations. He further held that the Forest Department has carried out afforestation in about 100 Hectares of land and now the area in question was a reserve forest. Therefore without proper sanction from the Forest Department it was not permissible for the plaintiff-petitioner to under take any mining operation. On the basis of these findings the learned Civil judge has set aside the order of injunction passed by the learned Munsiff and has dismissed the injunction application filed by the plaintiff petitioner. The fore-most argument advanced by Shri Mehrish learned counsel for the petitioner, is that the provisions for the Forest (Conservation) Act, 1980 and the Rajasthan Minor Mineral Concession Rules, 1986 are not applicable to the existing mining lease or the cases of renewal of existing lease. Shri Mehrish argued that once mining operation has already been carried out in the forest area with the permission of the Forest Department, the forest must be deemed to have been broken and the restrictions contained in the Forest (Conservation) Act are not applicable in such matters. Shri Mehrish argued that when the Mines Department has already given renewal of lease in favour of the plaintiff petitioner there is no reason or justification for depriving the petitioner of the fruits of the lease. He further submitted that the petitioner has made huge expenditure on the basis of the renewals granted by the Mines Department and there is no reason for withholding of permission by the Forest Department. Shri Mehrish argued that the Government is now estopped fro raising objection regarding the absence of No Objection Certificate from the Forest Department. He placed reliance on the decisions of the Supreme Court in State of Bihar V. Banshi Ram Modi (1) and M. P. Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh Shri Kamlakar Sharma and Shri Pankaj Bhandari, learned counsel for the respondents argued that the provisions of 1980 Act are applicable even to the cases of renewal of mining lease and unless approval is granted by the Central Government an existing lease holder cannot carry the mining operations. They submitted that the provisions of 1980 Act have an over-riding effect on all other provisions of law and therefore, grant of renewal in favour of the petitioner by the Mining Department does not entitle the petitioner to carry on the mining operations. Shri Sharma submitted that the decision of the Supreme Court in Banshi Ram Modi's case was given in a peculiar fact situation and in the subsequent decisions the Supreme Court has itself distinguished Banshi Ram Modi's case. He placed reliance on the decisions of the Supreme Court in Ambica Quarry Works etc. Vs. State of Gujarat (3), Rural Litigation and Entitlement Kendra Vs. State of U. P. (4), as also the decision of the Supreme Court in Tarun Bharat Sangh Alwar Vs. Union of India Both the learned counsel argued that the principle of promissory estoppel or equitable estoppel is not applicable to the case of the plaintiff-petitioner because there can be no estoppel against the statute and no representation could possibly be held out by the Mining Department to the petitioner on the question of applicability of the provisions of the Forest (Conservation Act, 1980. Shri Sharma argued that the Mining Department has never given any assurance or promise to the petitioner that he would be entitled to carry on the mining operation even without requisite No Objection Certificate from the Forest Department. The Forest (Conservation ) Act, 1980 has been enacted in order to provide for the conservation of forest and other matters connected therewith or ancillary or incidental thereto. This Act was preceded by the Forest (Conservation) Ordinance, 1980. Statement of Objects and Reasons set out in the Bill which was introduced in the Parliament for replacing the ordinance was in the following terms: - 1. "deforestation causes ecological imbalance and leads to environment deterioration. Deforestation has been taking place on a large scale in the country and it had caused widespread concern. 2. With a view to checking further deforestation, the President promulgated on the 25. 10. 1980, the Forest (Conservation) Ordinance, 1980. The Ordinance made the Prior approval of the Central Government necessary for dereservation of reserved forests and for use of forest land for non-forest purposes. The Ordinance also provided for the Constitution of an Advisory Committee advice the Central Government with regard to grant of such approval. Section 2 of this Act is as under: - "restriction on the De-reservation of forests or use of forest land for non-forest purpose - Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing - (i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved: ii) that any forest land or any portion thereof may be used for any non-forest purposes. iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other Organisation not owned managed or controlled by Govern-ment. iv) that any forest land or any portion thereof may be cleared of trees which have been grown naturally in that land or portion, for the purpose of using it for re-afforestation. "
(3.) RAJASTHAN Minor Mineral Concession Rules have been framed by the State Government in exercise of its powers under Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957. Rule-4 (6) of these rules reads as under: - "no mining lease shall be granted or renewed in the forest area without clearance from the Central Government in accordance with the Forest (Conservation) Act, 1980 and the rules made thereunder. " Rule 19 of 1986 Rules provides for execution of the lease deed in the cases of grant of lease or renewal thereof. Schedule appended to the Rules of 1986 prescribe various forms. Form No. 5 is a model form of mining lease. This form contains among other things various conditions which are required to be fulfilled by a lessee. Condition No. 6 (12) enumerated in the model form of mining lease r0ads as under: - "not to enter upon or commence operations in Forest land etc.- "the Lessee/lessees shall not enter upon or commence any mining operations in any State Forest or land under special protection comprised in the leased area except after previously obtaining permission in writing of the competent officer. " A perusal of the above quoted provisions clearly shows that the State Government has no power to de-reserve any reserve forest or allow use of forest land for any non-forest purpose. A further restriction has been placed on the power of the State Government to grant any lease of any forest land to any private person or any authority, corporation, agency or any other organization not owned, managed or Controlled by the Government. Explanation added to Section-2 of 1980 Act shows that the expression "non-forest purpose" has been given a wide meaning and it comprehends within its ambit all purposes other than re-afforestation. ;