1. This application filed u/Sec. 18(1) r/w Sec. 14,15,16 and 17 of the National Green Tribunal Act, 2010 is registered with the National Green Tribunal after transfer of W.P. No. 778 of 2010 originally filed by the applicants in the High Court of Bombay at Goa. The applicants challenge legality and validity of Environmental Clearance granted by MoEF dated 17.05.2007, Forest Clearance granted by MoEF (F.C. Division) dated 13 May, 2008 and permission granted by the Chief Wildlife Warden, Goa dated 08.02.2010 (Annexure P1 to P3). The applicants seek quashing of the above 3 Orders referred in the application, on the ground that they have been issued illegally without following the regular norms and procedure.
2. The Writ Petition No. 778 of 2010 from Bombay High Court at Goa was transferred to the National Green Tribunal in view of the observations of the Supreme Court of India in Bopal Gas Peedith Mahila Page 4 of 13 Udyog Sangathan & Ors. V/s. Union of India & Ors. [2012 STPL(web)
424 SC].
3. It is not necessary to elaborate all the facts in detail as narrated by the applicants. Suffice it to say that the chronological events stated in the application have not been disputed by the Respondents, particularly, the Respondent no. 6, who is the project proponent. The Respondent No. 6 did not file any reply to the Writ Petition before the Bombay High Court at Goa as well as to the present application before us and raised no contentious issue in regard to the factual and legal submissions of the applicants.
4. Briefly stated, case of the applicants is that by virtue of Notifications dated 23 August 1979, 15 October1981, 23 July1984, parts of forests at village Sacorda were declared as reserved forest. The area of the reserved forest, considered comprehensively is 1573.65 Hectares. The reserved forest area connects Madei Wildlife Sanctuary, Bhagwan Mahaveer Wildlife Sanctuary and the Mollem National Park. The Wildlife Sanctuaries and National Park are rich in bio-diversity. So also, reserved forest area is hardly at a distance of about 2 km. from Bhagwan Mahaveer Wildlife Sanctuary. It is also within radius of 10 km. of all the above two Wildlife Sanctuaries and the National Park. This information regarding the distance from the Wildlife Sanctuaries / National Park is as per the Environmental Clearance order, however the applicants dispute the same. They allege that the distance between the Wildlife Sanctuaries/National Park and the project of Iron/Manganese Ore Mining, as proposed by the Respondent no. 6, is quite less (but of Page 5 of 13 course less then 10 km) and therefore, the mining activity could not be permitted under the law. The applicants have come out with a case that without any proper public hearing, the Ministry of Environment & Forests (MoEF) granted the Environmental Clearance. The applicants further allege that the mining activity is likely to cause serious damage to the biodiversity, and will destroy rare species of animals like Barking Deer, Leopard etc. The applicants also raised the issues pertaining to air/noise pollution, source of irrigation from underground water, absence of proper baseline data in EIA report; and ground water table depth with regard to the mining activity, etc. The applicants further say that the Respondent no. 6 started commencement of the mining activity without prior permission/consent of the competent authority and therefore a complaint was made. The activity was later on stopped by the Respondent no. 6. The Respondent no. 6 illegally felled a considerable number of trees and had broken forest area of about 1 square km. in order to commence the mining activity. However, after filing of the complaint and Writ Petition in the Bombay High Court at Goa, that activity was stopped.
5. We have heard Learned Counsel for the parties. Though, Ld. Counsel Mr. Anand Akut appearing for the Respondent No. 6 submitted adjournment application and sought time to file Vakalatnama yet, his request is rejected in as much as already there is Vakalatnama of another lawyer and moreover by order dated 5 November, 2012, the parties were given clear understanding that the matter would be heard at Pune Circuit Bench on the scheduled date i.e. today. Apart from this, it is worthwhile to note that the Respondent no. 6, i.e. the project proponent, did not file any Reply Affidavit in the proceedings before the High Page 6 of 13 Court of Bombay at Goa in the context of W.P. no. 778 of 2010. It is manifestly clear that the Respondent no. 6 did not actively participate in the proceedings of the Writ Petition and also failed to point out that any valid permission was obtained from National Board for Wildlife (N.B.W.L.) before commencement of the project work. It is also amply clear that the Respondent no. 6 stopped the mining activity soon after filing of the Writ Petition and whatever activity was carried out by him was between the period of January to May 2010, only to the extent of felling of trees and clearing a part of the forest. There is no iota of evidence to indicate that actually ore was mined by the Respondent no. 6 and its quantification thereof, if any.
6. The material questions involved in the present application are :-
1. Whether any proper and valid public hearing was conducted before grant of the Environmental Clearance (EC) by the MOEF?
2. Whether the MOEF considered all the relevant aspects and norms prior to grant of E.C. in question?
3. Whether the Forest Clearance for renewal of Mining Lease was granted in accordance with the legal norms?
4. Whether the approval accorded by the Chief Wildlife warden, Goa is legal and proper? For reasons stated herein below we record negative findings on above questions.
7. From the documents placed on the record and particularly the Affidavits of the authorities of Ministry of Environment and Forest (MoEF) and Indian Bureau of Mines (IBM), it is explicit that the project Page 7 of 13 proponent was required to obtain all the mandatory clearances as applicable to the project. It is also manifestly clear that the approval granted by Chief Wildlife Warden is not at all in keeping with the directions of the Apex Court in W.P. no. 460 of 2004. By Order dated 4 December, 2006, the Apex Court directed that projects located within 10 kms. from the boundary of any National Park or Wildlife Sanctuary are required to obtain prior approval from the Standing Committee of N.B.W.L. Admittedly, no approval from N.B.W.L. was obtained by the Respondent no. 6 for the proposed mining project. There is absolutely no iota of evidence to show that the Respondent no. 6 even applied for such kind of prior approval from the Standing Committee of N.B.W.L.
8. Perusal of the Inspection Report based on joint inspection carried out by Mr. Shivkumar C.M., Dy. Conservator of Forests(C)and Scientist E, Dr. C. Kaliyaperumal; shows that the proposed project is at a distance of about 2 kms. from Bhagwan Mahaveer Wildlife Sanctuary and at a distance of about 7 kms. from Bondla Wildlife Sanctuary and Mollem National Park. It is further clear from the said Report that the project proponent had broken 4.8642 ha area of the forest cover.
9. It is pertinent to note that as no Lease Deed is available on record to show that the project proponent was granted any land on lease for the mining purpose. The record/affidavit of the Director of Mines, Department of Mines & Geology , Govt. of Goa (Respondent No. 3) also do not show that any Lease Deed was executed in favour of the Respondent no. 6 i.e. project proponent. What appears from the record/Affidavits filed by the MoEF (Respondent No. 4) and Director of Mines, Goa (Respondent No. 3) and Dy. Conservator of Forests, Forest Dept. Goa, Govt. of Goa (Respondent No. 2) is that no permission was issued by Director of Mines & Geology for operation of the iron ore mine Page 8 of 13 to the Respondent No. 6. It is further amply clear that no Mining Lease was executed in favour of the Respondent no. 6. On careful perusal of the Affidavit of Forest Department, Goa it is amply clear that inspection was carried out on 02.01.2010 and that the proposed Mining area is about 2.2 kms. away from boundary of Bhagwan Mahaveer Wildlife Sanctuary. Considered together, the documents would make it crystal clear that the statement with regards to distance from wildlife Sanctuary/National Park as mentioned in the Communication dated 17 May, 2007 by the MoEF, while granting EC are not in keeping with the fact situation. The EC Order reads vide paragraph 4 thereof as under :- Based on the information submitted by you, the Ministry of Environment & Forests accords EC for the above project as per Notification dated 14 September, 2006 Subject to Following conditions / ..
10. Thus, the information submitted by the project proponent was accepted as a gospel truth by the MoEF. The MoEF on its part did not verify the correctness of the information given by the Respondent no. 6. So far as the public hearing is concerned, it is worthy to be noted that the same was conducted at a distance of about 27 kms. from the place of project in question. It is clear that very few public members were present at the said public hearing . There is no record to show that notice of the public hearing was duly published. Nay, it was not even pasted outside the Office of the Village Panchayat of Sacroda. Thus, the only deducible conclusion will be that the EC was granted without following the due procedure as shown in the Notification dated 14 September, 2006. The E.I.A. Report also was not duly obtained and authenticated. The MoEF was required to verify the information Page 9 of 13 regarding source of irrigation, the proximity agricultural lands, presence of corridor through the reserved forest for wildlife, between the 2 Wildlife Sanctuaries and the National Park etc. The data regarding available flora and fauna, ground water depth in the context of mining depth, etc. were also not examined. So also, the Forest Clearance is based on incorrect information about the distance between the Wildlife Sanctuaries/National Park and the mining project in question. It also does not correctly indicate the forest density. The Forest Clearance is based on observation that the canopy is of 0.4 whereas Dy. Conservator of Forest, Goa in his report suggested that it is 0.5 whereas Inspection Report shows it to be between 0.5 to 0.7. Needless to say, everything appears to be fishy, based on untrue facts and inaccuracies.
11. In case of Anand Arya Vs. Union of India 2012(2) (FLT) 163 (SC) it is held that where a project is by the side of Bird Sanctuary, it would be potential danger to ecology. The Supreme Court referred to order dated December 12 1996 in Godavarman Thirmulkpad Vs. Union of India & Ors. (1997) 2 SCC 267. In that case, it has been observed as under:
3. It has emerged at the hearing, that there is misconception in certain quarters about the true scope of the Forest (Conservation) Act, 1980 (for short the Act) and the meaning of the word forest used therein. There is also a resulting misconception about the need of prior approval of the Central Government, as required by Section 2 of the Act, in respect of certain activities in the forest area which are more often of a commercial nature. It is necessary to clarify that position. Page 10 of 13
4. The Forest(Conservation) Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of the ownership or classification thereof. The word forest: must be understood according to its dictionary meaning. This description covers all statutorily recognized forests, whether designated as reserved, protected or otherwise for the purpose of section 2(i) of the Forest (Conservation) Act. The term forest land, occurring in section 2, will not only include forestas understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership . This is how it has to be understood for the purpose of section 2 of the Act. The provisions enacted in the Forest (Conservation) Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State of Gujarat, Rural Litigation and Entitilement Kendra v. State of U.P. and recently in the order dated 29.11.1996(Supreme Court Monitoring Committee v. Mussorie Dehradun Development Authority). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi has, therefore, to be understood to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any state Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan even at this late stage, Page 11 of 13 relating to permissions granted for mining in such area which is clearly contrary to the decisions of this Court. It is reasonable to assume that any state Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay.
12. In State of Bihar v. Bansi Ram Modi (1985 ) 3 SCC 643, the Supreme Court Observed: ..Reading them together, these two parts of the section mean that after the commencement of the Act no fresh breaking up of the forest land or no fresh clearing of the forest on any such land can be permitted by any State Government or any authority without the prior approval of the Central Government. But if such permission has been accorded before the coming into force of the Act and the Forest land is broken up or cleared then obviously the section cannot apply In the present case, the Respondent No. 6 commenced breaking of the Forest land and actually cleared a part of the forest though with the approval from the Central Government, yet the renewal of lease itself was illegal because there was no lease deed executed between him and the competent authority. Hence he had no legal right to cause breaking of the forest land.
13. Considering the deficiencies mentioned above and the fact that the averments in the application are not controverted by the project proponent, all the three (3) impugned orders of EC, FC and Chief Warden of Wild life are invalid, illegal and improper. All the 3 communications Page 12 of 13 will have to be therefore, quashed as prayed by the applicants. We are further of the opinion that MoEF and the other authorities casually granted the clearances /approvals without verification of the necessary facts and without following the due procedure. This resulted into undertaking of the mining activity by the Respondent no. 6 though temporarily. The Respondent no. 6 appears to have removed earth for breaking the forest areas and also fell certain trees therefrom. Under these circumstances, we deem it proper to allow the application with the following reliefs :- A. The application is allowed. B. The EC, FC and the permission granted by the Chief Wildlife Warden (Exhibit P-1 to P-3) are quashed and set aside. C. The Respondent no. 6 (project proponent) shall deposit an amount of Rs.5 Lacs or the NPV of the forest area cleared by( it to be ascertained by the MoEF through officers who were not at any stage involved with grant of any of the approvals related to this project), whichever is more, with the Govt. of Goa. The amount shall be utilized through appropriate agency identified by State Government for afforestation of the broken area. D. The MoEF (the competent authority for grant of EC and FC) and the State Government of Goa (in respect of approval by Chief Wildlife Warden) shall initiate departmental proceedings within period of two months against the concerned officers, if any of them is still in service for dereliction in duty and misconduct in granting of the said permission/clearance without following procedure of law and on basis of erroneous statement of facts. If such responsible officers are no more in service, then the estimated loss or an amount of Rs. 5 Lacs (for each approval/clearance) shall be recovered from such officers who participated in the grant of EC/FC and permission by the Chief Warden of wild life by Page 13 of 13 taking proper proceedings against them and after hearing them. The amount shall be deposited with Registrar, NGT within 9 (nine) months. E. We further direct that the MoEF shall issue fresh guidelines to the concerned Departments within MoEF for the purpose of avoiding illegality like we have noticed in the context of the three communications referred to above. F. The recovery of amounts mentioned in paragraph (c) above to be made within a period of 9 (nine) months hereafter. G. The Respondent no. 6 shall pay a cost of Rs. 1 Lac to the applicants. The other Respondents to bear their own costs. (Dr. D.K. Agrawal) (Justice V.R. Kingaonkar) Expert Member Judicial Member