HARBANS LAL, J. - (1.) THESE writ petitions, which have been filed by way of public interest litigation, highlight issues of grave environmental and ecological degradation due to large scale illegal, un-authorised, un-scientific and un-systematic mining activities being undertaken in violation of the provisions of various enactments, rules framed and notifications issued thereunder, and the orders of the Supreme Court and this court. Some of the petitioners have made a grievance with regard to the operation of the stone crushers and use of explosive substances for winning the minerals from the mines on the ground that they are causing air and nose pollution. Since these writ petitions pertain to and address the common issues, they have been heard together and are being disposed of by this order.
(2.) D. B. Civil Writ Petition No. 7544/03 has been filed by one Ashwani Chobisa, who is a practicing lawyer, in the Rajasthan High Court and claims himself to be a public spirited and keenly interested person in protecting the environment and water resources. He has focused on the aspects of large scale illegal un-systematic, haphazard and un-scientific mining taking place in the entire State of Rajasthan and operation of stone crushers at various places in the State and their benefit repercussions on the ecology. While Chobisa's writ petition deals with the problem of environmental degradation through-out the State of Rajasthan, all other writ petitions have focused on the aforesaid problem in respect of particular areas only. Therefore, Chobisa's writ petition is treated as the lead case. PETITIONER's CASE: According to the petitioner (Ashwini Chobisa), the State and its functionaries have been complacent in not strictly enforcing environmental laws and notifications. He has referred to Article 21 of the Constitution, which guarantees the protection of life and personal liberty to an individual. Article 48-A enjoins the State to make every endeavor to protect and improve the environment and to safeguard the forest and wild life of the country. Article 51-A (g) provides that it shall be the duty of the every citizen of India to protect and improve the natural environment including forest, lakes, rivers, wild life and to have compassion for living creatures. Articles 48a and 51a have been inserted in the Constitution through constitutional Amendment Act, 1976. Prior to insertion of these provisions in the Constitution, there have been several legislations on the subject including the Water (Prevention and Control of Pollution) Act, 1974, The Air (Protection and Control of Pollution) Act, 1981. The constitutional and statutory provisions, inter alia are aimed at protecting the individual's rights to fresh air, clean water and pollution free environment. In A. P. Pollution Control Board vs. Professor M. V. Nayadu and Others (1), while dealing with the principle of inter generational equity, which is of recent origin, has highlighted the Stockhom Declaration, 192 which declares that environment is a resource for survival of present and future generations. Even the Supreme Court has accepted "precautionary Principle" and "polluter Pays Principle" in Vellore Citizens Welfare Forum vs. Union of India It has been laid down that: a) the environmental measures by the State Government and statutory authorities should anticipate, prevent and check the cause of environmental degradation, b) where there are threats of serious and irreversible damage, lack of scientific certainty, the reasons used for postponing the measure to prevent environmental degradation and c) the onus to prove is on the actor or on the developer/industrialist to show that his action is environmentally benign. For protection of environment the notifications dated 27. 1. 1994 and. 5. 1992 issued by the Central Government in exercise of its powers under Section 3 of the Environmental Protection Act 1986 read with Rule 5 of the Rules framed thereunder are being violated by the persons operating the mines in the State. GRIEVANCE OF THE PETITIONERS: As already pointed out, The petition has been filed to highlight the serious and environmental degradation being caused by excessive mining activity and industrial operations and indiscriminate felling of trees. Notices were issued to the respondents on 17. 12. 2003. The State was specifically required by the order dated 23. 1. 2004 to specify in its reply as to how many mining leases had been granted and how many lease holders had got the consent of the Rajasthan State Pollution Control Board to operate the mines and the action taken with reference to the letter of the Central Government dated 10. 6. 2003. By an interim order the State Government was directed to ensure that no illegal mining is undertaken in the State of Rajasthan in the meanwhile. The State was also directed on 24. 2. 2004 to comply with the notification of the Central Government dated 27. 1. 1994 and its letter dated 10. 6. 2003. It was also required to file a report in compliance with the order dated 4. 9. 2003 passed in D. B. Civil Writ Petition No. 3879/02. It was claimed by the petitioners that the mining operations were not being conducted in accordance with law and certain mines were being operated without due permission. The respondents, however, denied this fact. Which the view to ascertain the truth, a committee of two advocates namely Shri Ajay Kumar Rastogi (as he then was) and Shri Jag Mohan Saxena was constituted by this Court for making site inspection of mines in Jaipur, Bharatpur and Alwar districts. The committee inspected the mines in various areas and submitted its report. The report reveal that most of the mines are being operated without complying with various orders of this court and the provisions of law. It was not in dispute that every single mine operator before operating the mien had to take consent/clearance from the Rajasthan State Pollution Control Board (for short RSPCB ). As per the reply of the State filed in the main writ petition, 9982 mining leases were granted out of which only 1026 lessees had obtained consent/clearance from the RSPCB and 3286 mine operators had applied for consent and 5670 had yet to apply. This petition was initially directed against five respondents; Union of India, State of Rajasthan through, Secretary Mines, State Pollution Control Board, Chief Conservator of Forest and Secretary Environment State of Rajasthan, Jaipur. It appears that Mangalam Cement Ltd. Aditya Nagar Modak, Upper Mall Pathar Vyavasayee Sansthan and Federation of Sand Stone Mining Industries Association were also impleaded as parties after they applied for clarification/modification of the orders passed by this Court. CASE OF THE STATE:
(3.) RESPONDENT No. 2, State of Rajasthan has in its reply raised a preliminary objection with regard to the maintainability of this petition. It is stated that similar writs are already pending either in the Principal Seat of Rajasthan High Court or the Bench and the matter stands concluded by the directions of the Supreme Court with regard to the mining activities in the State of Rajasthan. The petitioner has no right to raise the same issues again and again by way of public interest litigation. In reply it has also been pointed out that nature has been bountiful to the State inasmuch as the nature has provided huge mineral wealth to it. Emphasising the importance of the minerals it is state to the effect that the minerals serve as raw materials for running the industries, particularly the following commercial enterprises: (i) building; (ii) pharmaceuticals; (iii) cosmetics, (iv) transportation; (v) information technology; (vi) atomic power generation etc. Rajasthan has Wollestonite, Zypsum, Lead, Zinc, serpentine green marble, calcite, soap stone, sand stone etc. It is asserted that the State has monopoly in the world market for Lead, Zinc, serpentine green, soap stone, sand stone etc. Mineral wealth is not only a source of generation of revenue but also provides employment to millions of people. Out of a total income of Rs. 13080 crores per annum from all sources of the State, the mineral sector provides Rs. 450 crores per annum as Royalty, Sales Tax and half of its amount as Excise Duty. It also provides Foreign Exchange. Out of the revenue provided by the mineral sector, the State is able to spend Rs. 2650 crores for developmental works. The State has however, traversed the allegation that it is not complying with the statutory provisions and the rules as well as the notifications issued thereunder. It is claimed that the basic theme of the petition is protection of environment. The State has undertaken all possible steps and has made serious efforts for ecological upgradation by adopting eco-friendly measures. It has initiated campaigns through seminars/workshops in each Districts for emphasizing the importance of ecology. It has also issued guidelines to the officers in the form of circulars and booklets. The State has made it compulsory for each mine owner to submit eco friendly mining plan to be approved by the Mining Engineer, who monitors and watches its strict adherence/implementation on weekly basis. The State is submitting periodical compliance reports in DBCWP No. 3879/2002 pending at the Principal Seat of the High Court regarding allotments of dumping areas and yards. It is pointed out by the State that the prayer for total stoppage of mining activities would be suicidal for the State. The State claims that the petition in motivated by some oblique and hidden agenda and it does not stem with the bonafide and sincere desire for protection and maintenance of the environment. The sweeping orders for closure of all mines will be rather counter productive to the interest of the public at large, which takes this petition out of the ambit and scope of public interest litigation. In I. A. No. 828 in Writ Petition No. 202/1995 the mining activity was practically stopped in 3/4th of the State. After filing the replies on 30. 11. 2002 by the State and others, the Supreme Court vide its order dated 16. 12. 2002 (Annex. R/6) reviewed its earlier order and allowed the mining activity to take place. Therefore, no fresh writ was necessary. Respondent No. 2 has, therefore, prayed for dismissal of this writ petition with costs. Db Civil Writ Petition No. 1967/03 has been filed by the villagers of village Bolkheda through petitioner Nos. 2 to 6, Db Civil Writ Petition No. 4606/03 has been filed by Patram and others, Db Civil Writ Petition No. 4864/03 was initially filed by one Dularam, but he sought permission to withdraw the writ petition which was declined but the present petitioners were allowed to be substituted in his place Db Civil Writ Petition No. 6466/03 has been filed by villagers of village Mahalpura Kachhi, Baroli Brahmin, Kandoli Khata Bakoli Tehsil Roopwas, Db Civil Writ Petition No. 4409/03 has been filed by Gani Mohd. , the Sarpanch of Gram Panchayat Dhulap. All these writ petitions highlight the aforesaid issue of environmental degradation due to mining activities being undertaken in various areas of Bharatpur District. There writ petitions also indicate that at certain places monuments of archaeological, historical and religious importance have been endangered due to mining activities. Besides, these petitions highlight the damage to the hills and trees. Some of the respondents have disputed the claims of the petitioners in these petitions in their replies. ;