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..."
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.
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.
It has been submitted that the Government of Rajasthan and the Government of India earn a lot from the quarrying operations in Makrana and more so from Chak Dungri range. Makrana especially Chak Dungri Range is almost a gold mine for Government of Rajathan and is also a source of lot of inflow of finances to the Government of India. Therefore, when upgradation of meter gauge to broad gauge line (Makrana to Parbatsar) was undertaken, the then Chief Minister, Rajasthan requested the Government of India not to do so; earning of the Railway was not so much from Makrana to Parbatsar section; railway was running into losses; this Court in the writ petition filed by the Union of India passed stay order prohibiting the quarry activities within 45 meters from the railway line and though the stay order was limited, the respondents- authorities have passed orders whereby mining activities have come to a grinding halt altogether. The work of change of line from meter gauge to broad gauge was undertaken hurriedly due to political reasons. Even if the railway line which was in hanging position was to be put back in the working position, it will involve heavy expenditure, as such, broad gauge line should also be diverted. Marble deposits cannot be shifted and in order to avoid unemployment of persons and loss of revenue to the State of Rajasthan, it would be appropriate to divert the Makrana-Parbatsar Railway line taking resort to Section 25 of the Railway Act. Inspite of the fact that the Railway has asked the Mining Department to stop mining activities near railway track, the Divisional Railway Manager, Jodhpur issued no objection certificates to certain mine owners for construction of water tank and for taking electric connection etc. A reply was filed by the State of Rajasthan in which similar pleas have been taken as taken in the reply to writ petition no.2959/96.
A reply has also been filed by the respondents no.1 to 5- Railways contending that even though rich deposits of very fine marble may be there, but that cannot be excavated within the range of 45 meters of railway line as prescribed under the law. If any damage would be caused to the railway property, the licenses of the mining operators will have to be cancelled in the interest of the general public. It was further contended that the Railway line has been converted from meter gauge to broad gauge after conducting survey by the senior officers and that fact was within the knowledge of every one but no objection was ever raised by any one and thus, when the Railway has incurred crores of rupees for the change of line from meter gauge to broad gauge in the interest of general public, the question of disturbing it now does not at all arise and the petitioner has no right whatsoever to challenge the same. Even no demur was ever raised by any authority of the State. The basic aim of the Railway is to provide the facility of transportation and journey to the citizens and not to earn more wealth. When a new line has been laid, it cannot be diverted now for the benefit of some people only. The correspondence made by the State Government and the Union Government are the inter se affairs between them and the petitioner has got nothing to do with such correspondence and cannot take advantage of the same.
A rejoinder to the reply of the respondents no.1 to 5 was filed by the petitioner indicating diversion required. It was further submitted that the actual work for conversion of the meter gauge to broad gauge was taken up in 1994 and this was done suddenly and the work was completed within 15 to 20 days and it was only when the actual work was commenced that it came to be know that the work is being undertaken and it would have been difficult in that situation to do anything in the matter.
On 13.9.1996, the Single Bench of this Court in Writ Petition No.2959/1996 passed the following order:-
"Issue ad-interim mandamus directing the respondents No.1 to 7 to ensure faithful compliance of sub-rule (26) of Rule 18 of the Rajasthan Minor Mineral Concession Rules, 1986 by restraining the lessee/lessees from working or carrying on mining operations within a distance of 45 meters from any railway line except with the previous written permission of the Railway Administration concerned and in case any complaint is made by the petitioners to the respondents No.2 to 7 about breach of the aforesaid Rule by any of the lessee/lessees then the police assistance will be provided to the Railway Administration forthwith to prevent the catastrophe of accident leading to loss of human lives or show cause on or before 3.10.1996."
Thereafter, applications were moved under Article 226(3) of the Constitution of India for vacating/modifying/clarifying the ad- interim mandamus issued on 13.9.1996 and vide order dated 11.10.1996, the said applications were disposed of finally and ad- interim mandamus dated 13.9.1996 was made absolute with some clarification. The relevant portion of order dated 11.10.1996 is being quoted here:-
"With the aforesaid circumspection, I hereby make the ad-interim mandamus dated 13.9.96 absolute with a clarification that the newly added respondents shall be allowed to operate their mines subject to the terms and conditions stipulated under their lease deed without contravening any provisions of Act No.67 of 1957 as well as without contravening any provisions of rules of 1986 mentioned in the preceding paragraphs of this order and if any one is found to have committed any contravention of any of the provisions mentioned above then the appropriate authorities are hereby directed to initiate criminal proceedings against such lease holders as envisaged under Section 21 of Act No.67 of 1957 read with sub-rule (3) of rule 48 of the Rules of 1986.
After going through the averments made in the writ petition and also after hearing news broad-cast from Radio as well as after looking into television broad-cast from Jaipur indicating the seriousness of the controversy involved and also to avoid any catastrophic disaster to the public at large travelling by trains on these railway lines, I hereby direct the Director of Mines (Safety), Ajmer Region, Ajmer, respondent no.4 to probe into the matter after giving reasonable opportunity of hearing to the newly added respondents or any other respondent(s) who consider himself to be affected by the ad-interim mandamus, which is being made absolute today, to apprise the court about cause or causes affecting the safety of the railway lines and inform about remedial measures to be adopted to avoid catastrophic disasters leading to loss of human life.
With these observations, the applications moved under Article 226(3) of the Constitution of India are hereby disposed of finally.
It is further made clear that the respondent no.4 will submit his report on or before 12.12.1996 relating safety of railway lines running in the State of Rajasthan affected by mining operations brought to his notice by the petitioners.
The newly added respondents are represented by their counsel. Some of the respondents are present, some of them are not present for whom their counsel gave undertaking that they will inform their clients by Registered Post within three days from today informing them to attend the camp office at Makrana of respondent No.4 on 23.10.1996. Respondent No.4 is directed to hold camp office at Makrana for purposes of probe.
In abundant caution, it is made clear that if the respondent no.4 comes to this conclusion that some of the newly added respondents are not present, a notice may be published in newspaper which will be taken to be due service upon all of them. It is also made clear that the respondent no.1 will manage a general notice to be published in two newspaper, namely, Rajasthan Patrika and Dainik Navjyoti in Hindi, having sufficient circulation in the area informing the public in general about the probe scheduled to be commenced on 23.10.1996 at his Makrana Camp office about the safety of railway lines affected by mining operations.
Any public spirited person would be entitled to participate in the said probe. Put up this case on 16.12.1996."
In the report submitted in the year 1996, the Director of Mines Safety, Government of India, Ajmer pointed out that excepting plot Nos.G3 and 189 (Gunawati Range), all other mines have encroached within the prohibited area of 45 meter from the railway lines without obtaining permission from the appropriate authority. Some mine owners such as those of mine Sl.No.42, 43 and 44 have even extended their workings upto and beneath the track of the Branch line and as a result, about 30 meter long track alongwith the ground below collapsed on 4.9.1996 rendering the track totally unpliable. The Director of Mines Safety has also pointed out in his report that in the year 1987, Assistant Engineer, Degana, Northern Railway had written to the Mining Engineer, D.M.G. Makrana and Collector, Nagaur about the encroachment of the railway land between Makrana and Parbatsar Railway Stations and requested them to take action against the mine managements. The Director Mines and Safety had directed 54 mine owners not to work within 45 meters of the railway line without obtaining permission under Regulation 109 of the Regulations of 1961 vide letter dated 27.1.1988. In the year 1990, again a prayer was made by the Director Mines and Safety to the Assistant Mining Engineer, D.M.G., Makrana to cancel the leases/licenses of the mines in question. Details of the efforts made have been narrated in the report of the Director Mines and Safety. The Secretary Mines, Government of Rajasthan on 18.1.1991 assured to support the recommendation of the Committee and directed the Superintending Mining Eningeer, DMG, Jaipur to cancel the lease/license of dangerous mines in a phased manner. But the work in the mines was continued. However, the Dy.Secretary to Government of Rajasthan directed the Department of Mines & Geology not to stop mining activity and cancelling of some of the licenses of mines started in 1992-93. Other action taken by the Director Mines and Safety has also been narrated in the report. The Director Mines and Safety observed that non-following of the statutory requirement of sub rule (26) of Rule 18 of the Rules of 1986 by the owners/licensees, has caused damage to the railway tracks. The Directorate of Mines and Geology, Government of Rajasthan failed to give due importance/recognition to the requirement of Rule 18 (26) of the Rules of 1986. Most of the licenses were renewed after coming into force of the said Rules and portions of almost all these licensed plots were situated within the prohibited area of 45 meters from the Railway tracks. It is apparent from the following table given by the Director in his report:-
Considering the question of safety of the railway tracks, it was observed that they should not have renewed these quarry licenses. The relevant part of the report of the Director Mines and Safety including remedial measures are quoted below:
"2.0 Perusal of the Annexures 4 & 5 will clearly indicate that excepting plot Nos.G3 and 189 (Gunawati Range), all other mines have encroached within the prohibited area of 45 meter from the railway lines without obtaining permission from the appropriate authority. Some mine owners such as those of mine Sl.No.42, 43 and 44 have even extended their workings upto and beneath the track of the Branch line and as a result, about 30 meter long track alongwith the ground below collapsed on 4.9.96 rendering the track totally unpliable.
7.0 CAUSES:
7.1 In view of the facts given above it appears that creation of instability and dangerous conditions to the Railway tracks is due to-
a) Non-following of the statutory requirement of Sub Rule 26 of Rule 18 of the Rajasthan Minor Mineral Concession Rules, 1986 by the owners/licencees.
b) Directorate of Mines & Geology, Govt.of Rajasthan's apparent failure to give due importance/recognition to the requirement of Rule 18(26) of the 1986 Rules;-- most of the licences were renewed after coming into force of the said Rules, i.e. after 1986 and portions of almost all these licenced plots were situated within the prohibited area of 45m from the Railway tracks...
Keeping safety of the Railway tracks in view they should not have renewed these quarry licenses.
c) Government of Rajasthan's, particularly their Department of Mines' apparent reluctance to take timely decision of either effecting closure of the erring mines or convincing the Railways for diverting a portion of the Branch line/abandoning the tracks of the Branch line (Paras 3.4, 3.5 and 3.6 above may be seen in this context).
d) Northern Railways' Jodhpur Division's apparent insincerity to solve the problem as is evident from the fact that they never went for involving their own Chief Mining Adviser, Railway Board, which has enormous experience of safeguarding the Railway properties/track from unwanted mining practices throughout the country inspite of the fact that time and again they were requested for or reminded about the matter. Despite continuation of mining towards/ close to the Railway tracks openly/in front of/within notice of the Railway officials and despite apprehension of imminent affect/ creation of dangerous conditions to the Railways they went for conversion of the track to broad gauge instead of diverting a portion of the Branch line or taking prompt appropriate action for effecting stoppage of the mines (paras 3.4, 3.5 & 3.6 above may be seen in this connection).
e) Rajasthan Government's apparent indifference towards safety of the Railway tracks by putting concerted and timely efforts to prevent mining towards dangerous proximity of the Railways or to convince the Railways either for partial diversion or for abandonment of the Branch line instead of continuing with, perhaps, the sole aim of royalty/revenue collection from these dangerously running mines.
f) Stays granted by the ACJM, Parbatsar (on 25.1.93 and 5.5.93) on D.M.G's action of cancelling the quarry licenses and taking possession of the mines in order to prevent mining in dangerously close proximity of the Railways. Had the stays been not there further extension of the mines would have remained suspended and thus, Railway tracks would not have been further endangered. 8.0 REMEDIAL MEASURES:
a) Workings of the mine Sr.Nos. 1 to 11 (as indicated in Annexure-5) towards the Makrana-Borawar main line shall be kept stopped for ever. Existing excavations of these mines lying within 45m of this Railway line shall be filled up solid restoring the original ground level.
b) Workings of the mine Sr.Nos. 12 to 56, 58 to 64 and 66 (as indicated in Annexure-5) towards the Makrana- Parbatsar Branch line shall be kept stopped for ever and the excavations of these mines lying beneath and within 45m of the Railway track shall be packed solid and original ground level shall be restored. Or else, portions of this branch line should be shifted/diverted sufficiently away from the Marble bearing areas or the line shall be abandoned."
Thus, it is apparent from the report of the Director Mines and Safety that initially meter gauge line was existing on the Makrana- Parbatsar section, which was damaged due to illegal mining and excavation within prohibited area of 45 meters from the railway line. Efforts were being made by Railways right from 1987 for stopping the illegal mining within the prohibited area of 45 meters from the railway line, but nothing was done and the State Government had granted leases/licences in the prohibited area of 45 meters from the railway line and failed to check illegal mining which was taking place. Thereafter, broad gauge line was also laid down in the year 1994 and inspite of efforts having been made by the Railways, illegal mining was not stopped and continued in connivance with the officials/officers of the Mining Department of the State and even civil court's order did not authorize to work in the prohibited area. The mining operations were done in the prohibited area and broad gauge line, which was newly laid in the year 1994 was made to hang in the air due to illegal mining activities. Most of the mines excepting plot no.G3 & 189 (Gunawati range) have encroached within the prohibited area of 45 meters from the railway lines without obtaining permission from the appropriate authority and some mine owners have even extended their workings upto and beneath the track of the branch line and as a result, about 30 meter long track along with the ground below collapsed on 4.9.1996 rendering the track totally unpliable and for that Director Mines and Safety has fastened responsibility in his report at para 2.0 upon the incumbents (owners of mine Sl.No.42, 43 and 44). Most of the licenses were renewed after coming into force of the Rules of 1986 and portions of almost all these licensed plots were situated within the prohibited area of 45 meters from the railway tracks as is evident from para 7(b) of the report of the Director Mines and Safety. The State Government should not have granted or renewed the quarry licenses considering the safety of the railway tracks. No previous written permission as required in Rule 18(26) of the Rules of 1986 had been obtained so as to undertake mining operations within the area of 45 meters from the railway lines. It was not permissible to do any mining within the prohibited area without the previous written permission of the Railway. The Railway authorities were approaching the State authorities right from 1987 to stop illegal mining which was being done, but no heed was paid by the State machinery to the same and they asked the Railway authorities to shift their lines. Even broad gauge line was made unworkable in the manner as pointed out by the Director Mines and Safety in his report.
In an effort to resolve the complex issue affecting the economic activities of Makrana township and discomfiture of travelling people due to uncertain state of operating of Makrana- Parbatsar railway line due to safety risk in operating the railway line at existing site, a consensus was reached in 1999 that the existing land covered by the railway track in question be surrendered by Union of India provided diversion of railway track between Makrana and Bidiyad be agreed to and implemented for which land was to be provided by State of Rajasthan and cost of laying new track was to be borne by Sangmarmar Khan Vikas Samiti and its members mine operators. Ultimately, in furtherance of this consensus reached, following order was passed by this Court In D.B.Civil Writ Petition No.530/97 on 5.3.1999 by this Court:-
"The learned counsel for Sangmarmar Khan Vikas Samiit has filed an affidavit alongwith minutes of meeting held in between the Chairman, Railway Board and Chief Secretary, Rajasthan pursuant to the direction of this Court. Mr.Jangid, learned Addl.ADvocate General appearing for the State and Mr.M.S.Singhvi, learned counsel for the Railway admit the minutes of meeting to be correct. As they have also received instructions on similar lines, Sh.D.K.Parihar who appears in the connected matters objects to the cases being disposed of on the basis of agreement between the State Government and the Railways. He is concerned with the mines alongwith Jodhpur-Phulera Main Railway line. The agreement essentially and substantially is for other railway line Makrana-Parbatsar which is to be shifted. The Sangmarmar Khan Vikas Samiti is concerned with Makrana-Parbatsar Railway Line and therefore, the Sangmarmar Khan Vikas Samiti, Railways and the State Government are agreed on an order being passed by this Court on the basis of agreement arrived at between the Chairman, Railway Board and the Chief Secretary of Rajasthan held on 27.2.99. A perusal of agreement would show that the mine owners through Rajasthan Government have to meet the full cost as per actuals of which Rs.1 crores has to be deposited by 31.3.99 with the Northern Railway after which the operation of mining rights can be commenced outside the railway land after this payment is made. We direct the Sangmarmar Khan Vikas Samiti to deposit Rs.1 crores through a banker's cheque in the name of Divisional Railway Manager, Northern Railway, Jodhpur by 31.3.99. If the deposit is not accepted, same may be made in this court through its Registrar General.
The Sangmarmar Khan Vikas Samiti also undertakes to make the balance payment as per the agreement. However, Rajastrhan State through which payment has to be made to the Railways shall see to it that amount is recovered from the Sangmarmar Khan Vikas Samiti or mine owners who are benefited out of this agreement, if necessary, by resorting coercive process.
The office bearers of Sangmarmar Khan Vikas Samiti shall submit an undertaking to this court within a period of one month for the due compliance and performance of their part of the agreement. This undertaking shall be binding on other members of the Samiti also. The interim order passed earlier shall remain operative in the modified form as aforesaid, but the operation of mines alongwith Jodhpur- Phulera main line shall remain suspended as already ordered.
List the case for further hearing on 7.4.99."
Thus, in the year 1999 offer was made by Sangmarmar Khan Vikas Samiti with respect to Makrana-Parbatsar track to meet the full cost of shifting it and on that, order was passed by this Court on 5.3.199. The Railway has agreed to the offer in the meeting held on 27.2.1999 that on deposit of Rs.one crore, mining could be carried outside the railway land. Efforts were made to acquire alternate land for Makrana-Parbatsar line. Certain land has been acquired which was subject matter of litigation in this Court and thus, possession of land could not be handed over by the State Government to the Railways and ultimately, possession of land was taken over by the Railways and from the letter dated 14.2.2012 of Dy.Chief Engineer/Const., N.W.Rly, Jodhpur, it appears that for realignment work between Makrana-Bidiyad section, value of revised sanctioned estimate was Rs.14,53,42,942/- and Rs.7,53,42,942.00 were deposited by the Sangmarmar Khan Vikas Samiti upto 18.12.2010 and Rs.7,00,00,000/- were deposited by the State Government on 24.12.2011 and thus, total amount deposited was Rs.14,53,42,942/- and total expenditure incurred upto 31.1.2012 was Rs.4,33,63,000/-. It further appears that realignment work is in progress and to be completed by 29.9.2012.
However, the fact remains that not only meter gauge line which existed before 1994 was damaged but also the broad gauge line put up in 1994 on Makrana-Parbatsar section had been damaged before 1999 by illegal mining activities and there was also grievance of the Railways in the petition that on "Jodhpur-Jaipur main track", which is operational even today, also, leases/licenses have been illegally granted and illegal mining activities are taking place within the prohibited area of 45 meters from the railway line. Thus, illegal mining activities were taking place on Jodhpur-Jaipur main track as well as Makrana-Parbatsar track in contraventions of the Act of 1957 and Rules of 1986 and in gross violation of the orders passed by this Court. Hence, this Court has appointed Shri Dinesh Mehta, Advocate as Court Commissioner vide order dated 18.7.2011 to inspect and submit a report with regard to the mining activities on Jodhpur-Jaipur track as well as Makrana-Parbatsar track. The Court Commissioner has inspected the site and has submitted the report, which reads as under:-
"A Division Bench of Hon'ble High Court presided by Hon'ble the Chief Justice vide Order dated 18/7/2011 has appointed the undersigned as Court Commissioner to inspect and submit a report with respect to position of mining activities at the railway lines on the main line going towards Makrana as well as towards Parbatsar. I, the undersigned along with Mr. Akhilesh Rajpurohit Advocate went to Makrana on 29/7/2011. We have visited the sites with officers of Railways namely Mr. P.C. Vyas, Executive Engineer Construction, North Western Railway, Jodhpur, Mr. Ravi AEN and Mr. R.S. Verma, Senior Section Engineer, Makrana posted as ADN Degana and Makrana and Shri Ashok Chouhan, CLA of the Railways. We proposed to probe as to whether any mines are operating against the mandatory provisions contained in Rule 18(26) of Rajasthan Minor Minerals Concession Rules, 1986, which provides that no excavation shall be carried within a distance of 45 Meters from any Railway Line. Mining Engineer, Makrana Sh. Sunil Sharma had been informed telephonically and he along with the foreman Mr. S.S. Shekhawat accompanied us during our visit.
I had asked Shri Ashok Chouhan, CLA of the Railways to arrange for a photographer, who would carry out videography and photography during our site inspection. The Senior Section Engineer, Makrana had arranged one photographer Mr. Ghanshyam, who runs a studio known as Mama Studio, Makrana. Said Shri Ghanshyam along with his colleague accompanied us through out the inspection and had taken photographs and done videography according to the instructions given by me and Mr. Akhilesh Rajpurohit.
It may be informed that there are 3 ranges of Marble deposits; the railway track from Merta to Makrana crosses them diagonally from North to South. First of all I visited Mine No. 59, which is owned by Shri Farhan Ahmed and is situated near Masjid in Kalanadi range. There was no mining activity in this mine for a long time. However there had been mining activities earlier within the prohibited limit of 45 Meters from the Railway Track, which has resulted in a huge pit.
Then I visited the mine covered by Quarry License No. 21, which is leased out to Shri Krishan Kumar Bansal, situated in Kumhari-II Range which crosses the Railway Line between KM 66/7 and 66/8. Presently there is no mining activity within 45 meters of the railway track.
Thereafter, I visited mines situated between Milestone No. 66/1 to 66/2, Quarry License No. 29/7 leased out to Shri Abdul Zabbar S/o Rahim Buks Rathore, falling in the Pink Range. A look at the site shows no traces of mining activity for long period rather appears that mining activity has been abandoned. On the other side of the track i.e. road side of the track is situated, mine of Mr. Sageer Ahmed having Quarry License No. 30/3A. The said mine has also been abandoned and there is no mining activity.
As far as, above 3 mines are concerned, situated on either side of the railway track, no mining activity appears to have been done within 45 meters of the railway track for a long time. However, on account of mining activities done before 12-15 years, there are huge pits within the area of 45 meters of the railway track. The Railway needs to address to these pits as heavy rains may cause erosion and displacement of the sand beneath the track and resultant collapse of the track. It would be advisable that these pits are properly filled by over burden or these pits be dressed properly.
Thereafter we visited Quarry License No. 30/1, which is situated on the left side of the track at Milestone No. 66/0 to 65/9 from Merta Road towards Makrana. The said license is situated in Rewat Doongari Range and owned by Shri Khaleel Ahmed and Shri Gulam Sulemaan. When visited, I found that there has been heavy excavation even within prohibited 45 meters area of the railway track. A perusal of the photographs enclosed herewith clearly shows that on account of massive excavation done within the range of 45 meters, a huge cavity has been created. A look at the colour of the rocks shows that till recently rather today mining has been done and marbles has been excavated. Looking to the fact that track near which the excavation is done is well within 45 meters and the same is the main track connecting Jodhpur-Merta Road-Makrana-Fulera-Jaipur having heavy traffic of passenger and goods trains, immediate measures are required to be taken.
It would be appropriate that Railway or Mining Department fixes poles on either side of the mine clearly showing the 45 meters mark, thereafter barbed wire fencing may be done and an appropriate undertaking be taken from the lessee that he will not carry out any mining activities within the said demarcated area.
MAKRANA - PRABATSAR TRACK This track was earlier used to connect Parbatsar from Makrana. Officers of Railways and Mining Engineer informed us that in 1996 this track had collapsed on account of excavation and consequential caving in and displacement of sand/soft rocks. When we started considering the mining activities within 45 meters from the railway track, Mining Engineer showed us an Order dated 28/29-03-1999, passed by a Division Bench of Hon'ble High Court and contended that Hon'ble High Court had permitted the mine owners to carry on mining activities out side the railway land and hence the distance of 45 meters from railway track may not be relevant to decide as to whether the mining activities in question are illegal/irregular.
We find that if the distance of 45 meters from railway line is taken into consideration, then almost all mines on the Makrana-Prabatsar Railway Track fall within this distance. However, looking to the contention of the Mining Department, we have considered as to whether mining activities are being carried out on railway land or not, which ranges from 10 meters to 30.98 meters at various points along the track.
I visited Quarry License No. 42E, 42F and 42G, 42H to 42K owned and held by Smt. Manohari Devi, Babulal and Ramswaroop etc. The railways informed that at this point their land is upto 13 meters from the railway track. In this area, track had collapsed on account of mining activities in these mines, which are very close to railway track. The mining activities and excavation is being done very close to the railway land. As the marble has been excavated upto a depth of 300 feet, and further because mining is done at an angle of 60-80 degree, the possibility of mining being done within the area of 13 meters from the railway track cannot be ruled out.
Thereafter, I visited the mines covered by ML No. 42A owned by Mr. Liyakat Ali, ML No. 42 owned by Raheem Baksh, ML No. 43 owned by Kisturam Ji, ML No. 44 owned by Hukma Ram and ML No. 45 owned by Ameen Khan, ML No. 45A Mohd. Ismail. According to the records shown to us, Railway Land is upto 13 meters from the railway track. Mining operations are being done indiscreetly in these mines, intruding and encroaching the railway land.
Thereafter I visited ML No. 41, 39A, 38 owned by Abdul Rahman and Usmaan Gani etc. The railway land in these mining areas is 30.48 meter from the track. The mining activities are being done even in the railway land. Although it is very difficult to exactly measure the land as the land and rocks have substantially collapsed and there is a huge pit.
I visited ML No. 37/2 leased out to Hazi Mohammad etc., 37/1, owned by Mohd. Umar etc. and ML No. 36/1 owned by Gulam Mustfa etc. The railway land adjacent to these quarry licenses is upto 19.8 meters to 19 meters of the railway track and apparently no mining activities is being carried out on the railway land.
Thereafter, we proceeded towards the land owned by Smt. Magan Kanwar W/o Shri Bagh Singh being ML No. 35/1, mines of Sher Singh S/o Shri Bagh Singh being ML No. 35/1A, ML No. 34 leased out to Shri Abdul Haqeem etc., ML No. 33 owned by Sh. Mohd. Sadeek etc. I found that railway track is hanging without any support like a swing and there is massive mining activities on the railway land. In the mines of Shri Abdul Haqeem and Smt. Magan Kanwar etc., the excavation is being done even upto a point, which would perhaps cross the railway track.
On the ML No. 33 & 32 owned by Mohd. Sadique etc. and M/s New Taj Marble & Company, there are no mining activities on the railway land, which is 19.8 meters from the railway track.
Thereafter, we proceeded towards ML No. 64A, 64 and 65 owned by Fazudin etc. M/s Gehlot Marble Mines and Moohd. Allhanoor etc. These mines are on the other side of the track. The railway land is upto 24.5 meters of the railway track. Although the excavation of marble is being done outside the railway land, but machines and cranes etc. have been installed right on the railway land in ML No. 64, 65 & 66. These cranes are being used and activities are being carried out on the railway land.
After inspection was carried out, the photographer had ensured us that he would deliver the photographs and CD of the videography done by him on the next day to the Senior Section Engineer, Makrana. I had contacted the Railway Officers for getting the photographs and CD; but was surprised to learn from them that Mr. Ghanshyam; who had done photography was not available. According to the information given by the railway authorities; whereabouts of the said photographer were not available and after much efforts, they could contact him on 2/8/2011. However, the photographs and CD have been made available to me in the morning of 3/8/2011.
The photographs handed over by the photographer are much less in number and similarly the CD handed over by him also shows recording of about 24 minutes that too leaving most of the spots. On perusal of the photographs and viewing of CD, I find that most of the photographs, which we had asked the photographer to take as well as the videography is not in conformity with our instructions. The photographs and CD made available by the said photographer does not reflect what we had seen from our eyes. However, photographs supplied by the Photographer, being twenty one (21) and photographs taken from my personal camera, being fifty five (55), totaling seventy six (76) in number, are being submitted in enclosed album as Annexure 1. The CD supplied by the photographer is being submitted as Annexure 2.
I may also add that for abundant caution; I had also carried my personal camera with me and taken photographs from the same. Printouts of photographs snapped from my camera have also being enclosed.
It may also be clarified that although Mining Engineer, Makrana and Staff Members were with us but they were not carrying any copies of the Mining Leases/Quarry Licenses. They were also not in a position to tell us the exact area allotted to the Quarry Holders. As such the particulars of Lease Holder/Quarry Holders' area were considered as per the information supplied to us by the Officials of the Mining Department.
Consequently, the names and numbers of Mining Leases/Quarry Licenses have been mentioned in the instant Report according to the information made available by the Mining Department.
We are pained to note that the Court Commissioner in his report has pointed out that Ashok Chouhan, CLA of the Railways has arranged on the direction of the Senior Section Engineer, Makrana one photographer Shri Ghanshyam, who runs a studio known as Mama Studio, Makrana and said Ghanshyam alongwith his colleague had taken photographs and done videography according to the directions given by the Court Commissioner and Akhilesh Rajpurohit. The photographer had assured to deliver the photographs and CD of the videography on the next day, however, when the Court Commissioner contacted the Railway officers for getting the photographs and CD, the Railway Officers informed that Ghanshyam was not available, however, he could be contacted by them on 2,8.2011 and the photographs and CD were handed over to the Court Commissioner on 3.8.2011. The photographs are much less in number and similarly, CD shows recording of 24 minutes, that too leaving most of the spots. On perusal of the photographs and CD, the Court Commissioner has found that CD does not show the correct position which was seen and viewed. Thus, it is apparent that photographer was pressurized by the interested persons not to supply the photographs which were taken and the entire videography done was not in CD. Efforts were made to tamper with the photographs and videography and to cause hindrance in the court work and impinged adversely dignity which was carried by the Court Commissioner. This shows highhanded behaviour of the erring persons, who have not only done illegal mining, but have also tried to hamper the cause of justice and also obstructed the Court Commissioner in placing the visuals on record of misdeeds done by them.
The Court Commissioner has pointed out with respect to "Jodhpur-Jaipur main track" having heavy traffic of passengers and goods train at present that in Mine No.59, which is owned by Shri Farhan Ahmed and is situated near Masjid in Kalanadi range, there was no mining activity in the mine for a long time, however, there had been mining activities earlier within the prohibited limit of 45 meters from the railway Track, which has resulted in a huge pit. The Court Commissioner has further pointed out on account of mining activities done earlier, huge pits have been found within the area of 45 meters of the railway track and there is likelihood of collapse of the track. The Court Commissioner has also pointed out on inspecting quarry license No.30/1 situated on the left side of the track at milestone no.66/0 to 65/9 from Merta Road towards Makrana in Rewat Doongari Range and owned by Shri Khaleel Ahmed and Shri Gulam Sulemaan that on account of massive excavation done within the range of 45 meters of railway track, a huge cavity has been created. A look at the colour of the rocks shows that 'recently' mining has been done and marble has been excavated. As illegal mining and excavation are being done even 'as on today' within 45 meters of the main Jodhpur-Jaipur track having heavy traffic of passenger & goods train, immediate measures are required to be taken. Thus, it is apparent that illegal mining is going on within the prohibited area of 45 meters from the railway track and it is causing damage to main Jodhpur-Jaipur track which is the only track connecting Jodhpur to Jaipur. This has happened in gross violation of order dated 25.8.2011 passed by us in which various authorities including S.P., DIG, DGP and Secretary, Mining Department were directed to ensure that no illegal mining activity takes place on railway track which is still in operation.
With respect to "Makrana-Parbatsar track", the Court Commissioner has vividly pointed out in his report on inspecting quarry license No.42E, 42F, 42G, 42H to 42K owned and held by Smt.Manohari Devi, Babulal and Ramswaroop etc. that their land was upto 13 meters from the railway track and in that area, track had been collapsed on account of mining activities in these mines. The mining activities and excavation were done very close to railway land. Since excavation was upto the depth of 300 feet and mining was done at an angle of 60-80 degree, therefore, the mining was done within the area of 13 meters from the railway track. Similarly, in several mines pointed out by the Court Commissioner in his report, mining operations were done indiscreetly encroaching the railway land; railway track has been hanged in the air; there is massive mining activities on the railway land; and mining and excavation have crossed the railway track.
It is thus apparent that meter and broad gauge lines on Makrana-Parbatsar route have been damaged beyond repairs and illegal mining and excavation were done even on the "railway land" and also within the prohibited area of 45 meters from the railway lines on Makrana-Parbatsar section and main Jodhpur-Jaipur track.
The State Government has granted or renewed mining leases within 45 meters of railway lines on Makrana-Parbatsar section and main railway track of Jodhpur-Jaipur running today having heavy traffic of passengers and goods train. Statements have been submitted under the signatures of M.P.Meena, Superintending Mining Engineer, Jaipur on being required by this Court. He has given details of 11 mines which have been granted within 45 meters of railway lines on Jodhpur-Jaipur track and 61 mines on Makrana- Parbatsar track.
It is extremely shocking state-of-affairs that inspite of clear provisions culled out in the Rules of 1986, notwithstanding safety of the passengers and goods trains, the mines were granted and renewed within 45 meters of the railway lines in flagrant violation of the Rules of 1986. It shows apathy of the State Government as well as of the mine holders; the mine-holders could not have operated the mines within the prohibited area as per Rule 18(26) of the Rules of 1986 without previous written permission of the Railway. Rule 18(26) of the Rules of 1986, Regulation 109 of the Regulations of 1961 and Rule 27(1)(h) of the Rules of 1960 are quoted below:-
"18. Conditions:-(26) The lessee / lessees shall not work or carry on or allow to be worked or carried on at any point within a distance of 45 meters from any railway line except with the previous written permission of the Railway Administration concerned or from any reservoir, canal or other public works or buildings or inhabited site except with the previous permission of the Collector or any other officer authorised by the Government in this behalf and otherwise than in accordance with such instructions, restrictions and conditions either general or special as may be attached to such permissions. The said distance of 45 meters shall be measured in the cases of railways, reservoir or canal horizontally from the outer toe of the bank or the outer edge of the cutting as the case may be and in case of a building horizontally from the plinth thereof.
Explanation: for the purpose of this clause:
(1) The expression "Railway Administration" shall have the same meaning as defined in the Indian Railways Act, 1989 by sub-section 32 of section 2 of that Act;
(2) "Public Road" shall means a road which has been constructed or artificially surfaced as distinct from a track resulting from repeated use."
Regulation 109 of the Regulations of 1961 is quoted below:- "109. Workings under railways and roads, etc.-(1) No workings shall be made and no work of stoping or extraction or reduction of pillars or blocks of minerals shall be conducted at, or extended to, any point within 45 meters of any railway, or of any public works in respect of which this regulation is applicable by reason of any general or special order of the Central Government, or of any public road or building, or of other permanent structure not belonging to the owner of the mine, without the prior permission in writing of the Chief Inspector and subject to such conditions as he may specify therein.
(2) Every application for permission under sub-regulation (1) shall specify the position of the workings of the mine in relation to the railway or public road or works or building or structure concerned, the manner in which it is proposed to carry out the intended operations, and the limits to which it is proposed to carry out the intended operations; and shall be accompanied by two copies of a plan showing the existing and the intended mining operations in so far as they affect the railway or public road or works or building or structure concerned. A copy of the application shall also be sent in the case of a railway, to the railway administration concerned; and in the case of any public works as aforesaid, to such authority as the Central Government may by general or special order direct.
(3) Notwithstanding anything contained in these regulations, the stability of such railway, roads, buildings or structures shall not be endangered until they have been dismantled, diverted or vacated, as the case may be. (4) Where the stability of such railway, road, works, building or structure has been endangered due to any mining operations, the Chief Inspector may by any order in writing, require the owner to construct in the mine below ground or on the surface such protective works within such time as he may specify in the order."
Rule 27(1) (h) of the Rules of 1960 is quoted below:- "27. Conditions.-(1) Every mining lease shall be subject to the following conditions:-
(h) the lease shall not carry on, or allow to be carried on, any mining operations at any point within a distance of fifty meters from any railway line, except under and in accordance with the written permission of the railway administration concerned or under or beneath any ropeway or any ropeway trestle or station, except under and in accordance with the written permission of the authority owning the ropeway or from any reservoir, canal or other public works, or buildings, except under and in accordance with the previous permission of the State Government." A bare perusal of the aforesaid Rule 18(26) of the Rules of 1986 makes it clear that the lessee shall not work or carry on or allowed to work or carry on work at any point within a distance of 45 meters from any railway line except with the previous written permission of the Railway Administration concerned or from any "other public works" etc. except with the previous permission of the Collector. In the instant case, it is admitted that no permission had ever been granted by the Railway to carry on mining operations within 45 meters from the railway lines and no permission has been obtained either by the State Government or lease/license holders at any point of time. Thus, mining leases had been granted and renewed within 45 meters of railway lines in contravention of the Rules of 1986 and due to illegal mining, the track on "Makrana-Parbatsar" section has been collapsed and railway line hanged in the air and even due to illegal mining and excavation within the prohibited area of 45 meters from the main railway track connecting "Jodhpur-Jaipur", a huge cavity has been created. While granting leases/licenses within prohibited area of 45 meters from the railway line, safety of lives of people has been compromised and the lease holders have also illegally carried out the mining operations encroaching upon the railway land and within the prohibited area of 45 meters from railway line and they have caused damage to the railway line and ignored the safety of passengers and goods train. The criminal act of the lease holders is writ large and the State authorities appears to have acted in connivance with the lease holders in permitting illegal mining operations within prohibited area of 45 meters from railway lines and they have not checked illegal mining for which they have to suffer consequences. It is shocking to the conscience of the court the manner in which illegal mining has been done. It cannot be permitted in the civilized world under the guise and clock of generating revenue. Revenue cannot be permitted to be generated by compromising safety of the passengers and also goods traffic. The submissions raised on behalf of the State of Rajasthan as well as Sangmarmar Khan Vikas Samiti based on economy are totally untenable.
It is pertinent to mention here that the Court Commissioner has pointed out in the report and also submitted before us that illegal mining has not only been done beneath railway track and within the prohibited area, but also on "adjacent to road" and mining operators have not even spared the road and he has annexed with the report several photographs which indicate that mining has been done on side of the road till its territory. It could not have been done within 45 meters as it is a public works. Thus, roads are also not safe due to illegal mining. We take judicial notice of the aforesaid facts on the basis of the report of the Court Commissioner and propose to issue necessary directions in this regard also.
Shri Mridul, learned Senior Counsel has contended that since Sangmarmar Khan Vikas Samiti is bearing the expenditure of new railway track on Makrana-Parbatsar Section and a sum of Rs.7,53,42,942/- has been deposited by them and State Government has also deposited Rs.7 crores and project has been delayed by Railways, there should be an end of the matter. Merely because agreement reached in the year 1999 to lay down new railway track on Makrana-Parbatsar section for which cost was agreed to be borne by the Sangmarmar Khan Vikas Samiti, it does not absolve the liability of the mine/lease holders for the illegal mining activities done by them causing damage to the meter gauge track and the broad gauge track laid in 1994 causing inconvenience to the people residing in the area falling from Makrana to Parbatsar Stations. They have been deprived to use the railway facilities for more than a decade. The submission that there was no large traffic on Makrana- Parbatsar route cannot be an answer and explanation to the criminal act done by mine holders. The mine holders could not have done illegal mining within the prohibited area of 45 meters without the support of the authorities of Mining Department of the State and police as submitted by Railways. The concerned higher authorities of the Mining Department of State were required to first take care of the passengers and goods traffic and then to permit mining activities, but this aspect has been completely ignored and lost sight of which resulted in causing damage to the meter gauge line and excessive damage has been caused to broad gauge line which has been laid in 1994, it was rather made unpliable. The railway authorities have been approaching the concerned State authorities for stopping illegal mining with effect from 1987, but no positive action was taken by the State authorities. Various cases were filed in civil court. Statement was made before us that now civil suits are not pending and they have been withdrawn. In case any of the civil suit is pending, no civil court can grant any injunction nor it can be operative as this Court vide order dated 13.9.1996 passed in the petition of Union of India has totally prohibited mining within 45 meters from any railway line and no order of civil court has been shown permitting mining and excavation within 45 meters of the railway line. This Court has also noted in the order dated 11.10.1996 passed in writ petition no.2959/1996 that from news broadcast in the radio and television, it was clear that there was likelihood of any catastrophe disaster to the public at large travelling by trains on these railway lines and thus, order was made absolute. Though this Court has passed order restraining mining operations within 45 meters of the railway lines, but the mining operations were illegally allowed within 45 meters from the railway line in contravention of the Rules of 1986 and in violation of the orders of this Court as is apparent from the reports of the Director Mines and Safety and the Court Commissioner.
It was submitted by Shri Mridul, learned Senior Counsel that revenue is also necessary and earlier railway tracks had been shifted and thus, no further interference by this Court is called for. However, the counsel was unable to explain in what manner and under what authority of law, illegal mining was done beneath and within 45 meters of the railway line on Makrana-Parbatsar section and also within 45 meters of prohibited area on main Jodhpur- Jaipur track which is being used at present and even after the orders passed by this Court, illegal mining activities have been carried out. Due to illegal mining galore at large from the reports of the Director Mines and Safety and the Court Commissioner, the track on Makrana-Parbatsar had collapsed and huge cavity has been created on the main railway track connecting "Jodhpur to Jaipur" and rest of India. Thus, the licence/lease holders have to account for the illegal mining and excavation which have been done by them on Makrana-Parbatsar section, as a result of which, it collapsed and also on main Jodhpur-Jaipur track, as a result of which, huge cavity has been created resulting in imminent danger to the lives of the people travelling in the train and also goods train. The illegal mining has caused loss to the Railways as well as inconvenience to the public residing in the area falling between the Railway Stations from Makrana to Parbatsar and they have been deprived to use the railway facilities for more than a decade. There was no authority with the mine holders to undertake mining activities within the prohibited area of 45 meters from the railway line in view of Rule 18(26) of the Rules of 1986 and inspite of that and despite the orders passed by this Court restraining mining activities within prohibited area, illegal mining and excavation have been done within the prohibited area of 45 meters from the railway lines on Makrana-Parbatsar section and main Jodhpur-Jaipur line as pointed out by the Director Mines and Safety and Court Commissioner in their reports. Thus, mineral so extracted within prohibited area of 45 meters from the railway lines was not only illegal but in contravention of the Rules of 1986 and in violation of the orders of this Court and in utter disregard to the safety of the passengers and interest of the goods traffic. The mine holders had no right or authority to take away the minerals and without the permission of the railways, they could not have done mining within 45 meters of the railway lines. Thus, they have rendered themselves liable for recovery of cost of such mineral which has been illegally excavated within prohibited area of 45 meters from the railway lines on Makrana-Parbatsar section and on Jodhpur-Jaipur track, besides other liability for causing loss to the railway, posing danger to the safety of the people and causing inconvenience to the public at large. Rule 48(5) of the Rules of 1986 provides that whenever any person, without a lawful authority or in contravention of the terms and conditions of the mining lease/quarry license, short term permit or any other permit raises any mineral from any land, such mineral may be seized by the authorities mentioned in sub-rule (4) and where mineral so raised has already been dispatched or consumed, the authorities may recover cost of the mineral alongwith rent, royalty or the tax chargeable on land occupied or mineral excavated which will be computed as 10 times the royalty payable at the prevalent rates. Rule 48(5) of the Rules of 1986 is quoted below:-
"48. Unauthorized working:-
(5) Whenever any person, without a lawful authority or in contravention of the terms and conditions of the mining lease/quarry license, short term permit or any other permit (raises) any mineral from any land and for that purpose brings on the land any tool, equipment, vehicle or other thing, such mineral, tool, equipment vehicle or other thing may be seized by the authorities mentioned in sub rule (4):
Provided that where mineral so raised has already been despatched or consumed, the authorities mentioned in sub- rule (4) may recover cost of the mineral along with rent, royalty or the tax chargeable on land occupied or mineral excavated which will be computed as 10 times the royalty payable at the prevalent rates.
Provided further that every officer seizing any property or mineral under this rule shall give a receipt of the property so seized and make a report of such seizure to his superior officer and to the Magistrate having jurisdiction over the area to try offence."
Though apathy in the instant case writ large to the extent of criminal liability, it is worthwhile to mention here that the Indian society has, for many centuries, been aware and conscious of the necessity of protecting environment and ecology. Sages and Saints of India lived in forests. Their preachings contained in vedas, upanishads, smiritis etc. are ample evidence of the society's respect for plants, trees, earth, sky, air water and every form of life. The main motto of social life is to live in harmony with nature. It was regarded as a sacred duty of everyone to protect them. In those days, people worshiped trees, rivers and seas which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora and fauna and every species of life.
Nowadays, the ecological imbalances and the consequent environmental damage has become alarming due to reckless mining operations. Preservation of ecology, flora and fauna is necessary for human existence. There is great and urgent necessity to preserve ecology. There are complaints in Rajasthan that mining has become a menace. There are complaints that damage to the Air Force fighter planes had been caused due to illegal mining taking place in the border areas. The scale of injustice occurring in Indian soil is catastrophic. In this scenario, in a large number of cases, the Apex Court intervened in the matter and issued directions from time to time in public interest to protect and preserve forest cover, ecology, environment, wildlife etc. from ill effects of mining.
Mining cannot be claimed as of right. In Tarun Bharat Sangh, Alwar Vs. Union of India & Ors. (1992 Supp (2) SCC 448), the Apex Court has laid down in the context of mining operation carried out under license granted by the State Government impairing the environment and wildlife within the Sariska Tiger Park (in Alwar District in State of Rajasthan) declared by notifications as reserve forest, game reserve and sanctuary, statutory notifications were violated. State Government while professing to protect the environment by means of the notifications and declarations, itself permitting degradation of the environment by authorizing mining operations in the area. Direction was issued that no mining operation of whatever nature shall be carried on within the protected area. The Apex Court also considered the provisions of Section 29(3) of the Act of 1953 and laid down that mining rights are not the private rights in or over the forest land.
Development has to be sustainable and precautionary. In T.N. Godavarman Thirumulpad Vs. Union of India & Ors., ((2002) 10 SCC 606), the Apex Court has observed that at global level, the right to live is now recognized as a fundamental right to an environment adequate for health and well being of human beings. There is increase in awareness of the compelling need to restore the serious ecological imbalances introduced by the depredations inflicted on nature by man. There may be boundless progress scientifically which may ultimately lead to destruction of man's valued position in life. The Constitution has laid the foundation of Articles 48A and 51A for a jurisprudence of environmental protection. Today, the State and the citizen are under a fundamental obligation to protect and improve the environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. Duty is cast upon the Government under Article 21 to protect the environment and the two salutary principles which govern the law of environment are :(i) the principles of sustainable development, and (ii) the precautionary principle.
Mining activity can be ordered on sustainable development and on stringent conditions. In M.C. Mehta Vs. Union of India & Ors., ((2004) 12 SCC 118), the Apex Court constituted a Monitoring Committee with a view to monitor the overall eco-restoration efforts in the Aravalli Hills and came to the following conclusions:-
"96. 5. The mining activity can be permitted only on the basis of sustainable development and on compliance of stringent conditions.
6. The Aravalli hill range has to be protected at any cost. In case despite stringent conditions, there is an adverse irreversible effect on the ecology in the Aravalli hill range area, at a later date, the total stoppage of mining activity in the area may have to be considered. For similar reasons such step may have to be considered in respect of mining in Faridabad District as well.
7. MOEF is directed to prepare a short term and long term action plan for the restoration of environmental quality of Arvalli hill in Gurgaon district having regard to what is stated in final report of CMPDI within four months.
8. Violation of any of the conditions would entail the risk of cancellation of mining lease. The mining activity shall continue only on strict compliance of the stipulated conditions."
In T.N. Godavarman Thirumulpad (104) Vs. Union of India & Ors., ((2008) 2 SCC 222), the Apex Court held that adherence to the principle of sustainable development is now a constitutional requirement. It is the duty of the State under the Constitution to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on inter- generational equity.
In the case of T.N.Godavarman Thirumulpad (supra) mining of bauxite deposits is required to take place on the top of Niyamgiri Hills. Keeping in mind the two extreme object poverty and growth, the Apex Court thought of balancing development vis-a-vis protection of wildlife ecology and environment in view of the principle of sustainable development. Safeguards are necessary to protect nature and subserve development. Mining is an important revenue-generating industry. However, one cannot allow our national assets to be placed into the hands of companies without a proper mechanism in place and without ascertaining the credibility of the user agency. Thus, in the circumstances of the case, the Project does not deserve to be cleared.
Mining was stopped in Aravali Hills. In T.N. Godavarman Thirumulpad (60) Vs. Union of India & Ors., ((2009) 17 SCC 764), mining activity in Aravalli Hills, especially in that part which has been regarded as forest area or protected under Environment (Protection) Act was prohibited and banned by the Apex Court. Chief Secretaries of Haryana and Rajasthan were directed to file compliance report.
Later-on, in the same case T.N.Godavarman Thirumulpad VS. Union of India & Ors., reported in (2009) 6 SCC 142, the Apex Court has held that when mining leases were granted, 'requisite clearances for carrying out mining operations' were not obtained which have resulted in land and environmental degradation. Despite such breaches, approvals were granted for subsequent slots because in the past the authorities had not taken into account the macro effect of such wide-scale land and environmental degradation caused by the absence of remedial measures (including rehabilitation plan). Time has now come, therefore, to 'suspend' mining in the Aravalli hill range till statutory provisions for restoration and reclamation are duly complied with, particularly in cases where pits/quarries have been left abandoned. Environment and ecology are national assets. They are subject to intergenerational equity. Time has now come to suspend all mining in the said area on sustainable development principle which is part of Articles 21, 48-A and 51-A(g) of the Constitution of India. Mining within the principle of sustainable development comes within the concept of "balancing" whereas mining beyond the principle of sustainable development comes within the concept of "banning". It is a matter of degree. Balancing of the mining activity with environment protection and banning such activity are two sides of the same principle of sustainable development. They are parts of precautionary principle. It has further been held that the provisions of Rule 27(1)(s)(i) of the Mineral Concession Rules, 1960, Rules 34 and 37 of the Mineral Conservation and Development Rules, 1988 and the guidelines issued under the said Rules of 1988 have not been complied with. Hence, all mining operations in the Aravalli hill range falling in the State of Haryana within the area of approximately 448 sq. km. in the districts of Faridabad and Gurgaon, including Mewat have been suspended. Similar situation has arisen in the instant case.
In M.C.Mehta V/s Kamal Nath and ors. ((2000) 6 SCC 213), the Apex Court held that pollution is a civil wrong and by its nature, it is a tort committed against the community as a whole and thus, a person causing pollution can be asked to pay damages (compensation) for restoration of the environment and ecology and he can also be asked to pay damages to those who have suffered loss on account of the act of the offender. Considering Articles 48A and 51-A(g) of the Constitution in the light of Article 21 of the Constitution, the Apex Court held that any disturbance of the basic element of the environment, namely, air, water and soil, which are necessary for 'life', would be hazardous to 'life' within the meaning of Article 21. In the matter of rights under Article 21 the Apex Court besides enforcing the provisions of the Acts has also given effect to the fundamental rights under Articles 14 and 21 and held that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims, who have suffered due to that disturbance. In order to protect "life", "environment" and "air, water and soil" from pollution, the Apex Court has given effect to the rights available to the citizens and persons alike under Article 21 and has awarded damages against those who have been responsible for disturbing the ecological balance either by running industries or any other activity which has the effect of causing pollution in the environment. The Apex Court while awarding damages also enforces the "polluter-pays principle", which is widely accepted as "means of paying for the cost of pollution and its control". To put it in other words, the wrong doer, the polluter is under an obligation to make good the damage caused to the environment.
In Indian Council for Enviro Legal Action V/s Union of India (AIR 1996 SC 1446), the Apex Court considering the principle "Polluter pays principle" held that once the activity carried on was hazardous or inherently dangerous, the person carrying on that activity was liable to make good the loss caused to any other person by that activity. This principal was also followed In Vallore Citizens' Welfare Forum V/s Union of India (AIR 1996 SC 2715).
In the instant case, mineral has been extracted illegally from the prohibited area of 45 meters from the railway lines of Makrana- Parbatsar track, which had collapsed due to illegal mining and also Jodhpur-Jaipur track, which is in operation at present having very heavy traffic, where huge cavity has been created due to illegal mining and excavation. The mining and excavation activities were carried out within 45 meters of the railway lines in flagrant and blatant violation of Rule 18(26) of the Rules of 1986 and orders of this Court and at the risk and cost of safety of the passengers and goods traffic and besides this, public inconvenience has been caused and they have been deprived to use railway facilities for more than a decade on Makrana-Parbatsar section. Thus, the mine holders, who have done illegal mining in the prohibited area of 45 meters from the railway lines on Makrana-Parbatsar section, which had collapsed and on main Jodhpur-Jaipur track, which is presently in operation, where huge cavity has been created resulting in imminent danger to the safety of the people travelling in the trains and goods traffic, as pointed out in the reports of the Director Mines and Safety and Court Commissioner, are liable to pay cost of minerals illegally extracted alongwith royalty 10 times as provided in Rule 48(5) of the Rules of 1986 and they are also liable to pay compensation for causing damage to the railway lines, danger to the life of the people travelling in the trains, goods traffic, inconvenience to the public at large etc.. The Director Mines and Safety has categorically pointed out that 61 mine owners have done mining within 45 meters of railway lines and the mine owners of Sl.No.42, 43 and 44 have even extended their working upto and beneath the track of the Branch line and as a result, about 30 meter long track along with the ground below collapsed on 4.9.1996 rendering the track totally unpliable and thus, it is appropriate to direct such mine owners to pay additional compensation. Similarly, the Court Commissioner has pointed out on visiting quarry license no.30/1 owned by Khaleel Ahmed and Gulam Sulemaan, situated on the left side of the track at milestone no.66/0 to 65/9 from Merta Road towards Makrana on "Jodhpur-Jaipur" track in use at present that there was heavy excavation even within 45 meters area of the railway track as a result of which huge cavity has been created and thus, it is also appropriate to direct the said mine-holders Khaleel Ahmed and Gulam Sulemaan to pay additional compensation and also to initiate proceedings against them under the Contempt of Courts Act for violating Court's order. Apart from this, it is also appropriate to direct criminal prosecution against such mine holders. Furthermore, since mining could not have been done without the support of the officials/officers of Mining Department of the State and police officials etc. and other functionaries, it is appropriate to examine their role through CBI.
As per the report of the Court Commissioner, Ghanshyam, Photographer has not provided full photographs and videography and thus, he is liable to be prosecuted under the Contempt of Courts Act.
The Mining Engineer has pointed out by furnishing statement that 11 mines were granted within 45 meters on Jodhpur-Jaipur track and 61 mines were granted within 45 meters on Makrana Parbatsar track and it has been submitted on behalf of the State that such 11 leases on Jodhpur-Jaipur track have to be cancelled. Being in contravention of Rule 18(26) of the Rules of 1986, such leases within 45 meters of the railway lines are liable to be cancelled and no mining can be allowed within 45 meters of the railway lines without obtaining previous written permission of the railway.
Thus, considering the entire facts and circumstances of the case, to meet the ends of justice, we pass the following directions:-
(1) That the 61 mine holders, who have illegally extracted mineral within the prohibited area of 45 meters from the railway lines on Makrana-Parbatsar section and several others on main Jodhpur-Jaipur track, as pointed out in the reports of the Director Mines and Safety and Court Commissioner, are directed to pay cost of minerals illegally extracted alongwith royalty 10 times as provided in Rule 48(5) of the Rules of 1986. Let the figure be worked out by the Director, Mining Department in consultation with the Director Mines and Safety and report about the same be placed before this Court within three months from today.
(2) That the mine holders, who have done illegal mining within the prohibited area of 45 meters from the railway lines on Makrana-Parbatsar section and on main Jodhpur-Jaipur track, as pointed out in the reports of the Director Mines and Safety and Court Commissioner, are further directed to pay compensation of Rs.50 crores within three months from today for causing damage to the railway lines, meter gauge and then to broad gauge laid in 1994 on Makrana-Parbatsar section and doing illegal mining in the prohibited area on main Jodhpur-
Jaipur track, causing danger to the life of the people travelling in the trains, goods traffic, inconvenience to the public at large etc..
(3) That mine owners of Sl.No.42, 43 and 44, as pointed out in para 2.0 of the report of Director Mines and Safety, are directed to pay additional compensation of Rs.one crore each for rendering the track hang in air and totally unpliable. (4) That Khaleel Ahmed and Gulam Sulemaan holding quarry license no.30/1, as pointed out in the report of the Court Commissioner, are also directed to pay additional compensation of Rs.one crore for creating huge cavity on main Jodhpur-Jaipur track by doing massive illegal mining and excavation in violation of Court's order. Proceedings under the Contempt of Courts Act be also registered separately against these incumbents.
(5) That criminal prosecution be launched under the provisions of Indian Penal Code and Section 151 of the Railways Act against those incumbents, as pointed out in the reports of the Director Mines and Safety and Court Commissioner, for doing illegal mining within the prohibited area of 45 meters from the railway lines on Makrana Parbatsar section, which had been abandoned and main Jodhpur-Jaipur track, which is presently in operation. Let appropriate action be taken by the concerned authorities and report of actions so taken be placed before this Court within a period of three months from today.
(6) That investigation be conducted by the CBI to find out the role of the officials & higher officers of the Mining Department of the State, police officials and other functionaries in allowing illegal mining activities in the prohibited area of 45 meters from the railway lines on Makrana-Parbatsar section and Jodhpur-Jaipur track and to take appropriate action for prosecution of the erring persons/officials/officers and lease/license holders, howsoever high one may be. In case there is any other nexus found in the illegal mining, the same be also enquired into and taken to logical end by the CBI.
(7) That a case be registered against Ghanshyam, Photographer, Mama Studio, Makrana under the provisions of Contempt of Courts Act for not providing full photographs and videography to Court Commissioner and be placed separately before this Court.
(8) That all mining leases/licences, which have been granted within 45 meters of the railway lines in the State of Rajasthan and running without written permission of the Railway under Rule 18(26) of the Rules of 1986 including those 11 mining leases on Jodhpur-Jaipur track are declared illegal and set aside and shall not be acted upon. Besides, it is further directed that in future no mining activities within the prohibited area of 45 meters from the railway lines without the previous written permission of the Railway shall be allowed and in case any mining and excavation within 45 meters of the railway lines without previous written permission of the Railway are allowed by the Mining Department of the State, the criminal liability would be of the officials/officers of the Mining Department as well as that of lease/license holder.
(9) That all illegal mining activities within 45 meters and adjacent to road be stopped forthwith and the State is directed to fix the liability against those incumbents, who have illegally done mining adjacent to road and take appropriate action in accordance with law.
(10) That the realignment work of Makrana-Bidiya Section, which is in progress, be completed by the Railways by September, 2012 as assured and mutation of railways be effected forthwith on the land handed over to it for laying new track.
(11) That the Railway authorities and Department of Mines, Government of Rajasthan are also directed to immediately take necessary remedial measures on the main Jodhpur- Jaipur track to repair damage caused by illegal mining.
(12) That as public has been deprived since long of the railway facilities, the compensation so realized shall be utilized for providing amenities to the public of the area in question by the Railways.
Before concluding, we place on record our appreciation for the services rendered by the Court Commissioner Shri Dinesh Mehta, who inspected the site and submitted report and did not charge any remuneration for the same.
In the result, with the aforesaid directions, the writ petition no.2959/1996 filed by the Union of India is allowed with cost of Rs.50,000/- (Rs.fifty thousand only) payable by the respondents- State of Rajasthan and other private respondents. The writ petition no.530/1997 filed by Sangmarmar Khan Vikas Samiti is also disposed of.
(Kailash Chandra Joshi)J. (Arun Mishra) C.J.
Parmar
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