BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE)...
Transcript of BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE)...
(J) Application No.12(THC)/2013 (WZ) 1
BEFORE THE NATIONAL GREEN TRIBUNAL
(WESTERN ZONE) BENCH, PUNE
APPLICATION No. 12(THC)/2013(WZ)
CORAM:
Hon’ble Mr. Justice V.R. Kingaonkar
(Judicial Member)
Hon’ble Dr. Ajay A. Deshpande
(Expert Member)
B E T W E E N:
Shivaji Suryabhan Sangle
Aged : 37 years, Occ : Agril.
R/o. Tophkhana, House No.677,
Ahmadnagar, Tq. & Distt :
Ahmednagar.
….Applicant
A N D
1. The Union of India
Through : Secretary,
Ministery of Environment & Forest,
New Delhi
2. The State of Maharashtra,
Through : Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai 12.
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3. The Chief Wildlife Warden,
Maharashtra Forest Department,
Through : The Secretary
Revenue and Forest Department,
Mantralaya, Mumbai 12.
4. The Divisional Forest Officer,
Maldhok Sanctuary Forest,
Karjat, Tq. Karjat,
District : Ahmdnagar
5. The Tahsildar Karjat,
District : Ahmadnagar
6. The Tahsildar Shrigonda,
District : Ahmadnagar
7. The M/s. Reliance Gas Tansportation,
Infrastructure Limited, Pune,
Vishal Arked Building Chinchwad
Station Road, Pune.
…Respondents
Counsel for Applicants :
Mr. N.J. Pahune Patil,
Mr. S.D. Bade,
Counsel for Respondent No.1 to 6 :
Mr. G.T. Chavan, w/.
Mr. A.S. Mulchandani, A.G.T.,
Counsel for Respondent No.7 :
Mr. Parimal and B.H. Nikte
DATE : 11th September, 2014
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J U D G M E N T
1. Originally, Applicant Shivaji Suryabhan Sangle filed
Writ Petition No.6060 of 2009 before the Hon’ble High
Court of Judicature Bombay, Bench at Aurangabad. The
Writ Petition was transferred to this Tribunal by Order of
Hon’ble High Court dated 30th September 2013. The Writ
Petition was, thereafter, registered as Application U/s.
14(1)(2) read with sections 15 and 18 of the National Green
Tribunal Act, 2010, as a result of transfer of the Writ
Petition.
2. Briefly stated, case of the Petitioner is that in Karjat
Taluka, District: Ahmednagar, there is sanctuary of
Maldhok i.e. Great Indian Bustard, which is declared as
one amongst the protected species of birds and therefore,
no project activity can be undertaken in the area of the
forest land. Respondent No.7 is an Industry dealing in
transportation of Industrial gas through underground pipe
line. Respondent No.7 proposed to lay down a metallic
pipeline through lands within area of the protected Great
Indian Bustard Sanctuary i.e. Maldhoks of Taluka Karjat
one (1) mtr, deep below the earth. Respondent No.7
cannot be permitted to lay down such pipelines through
forest and sanctuary area of the Great Indian Bustard
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Sanctuary. When inquiry was made to the Respondent
Nos. 5 and 6, the Petitioner received evasive replies about
the permission sought by the Respondent No.7 and such
kind of permission granted in favour of Respondent No.7.
Tahsildar of Karjat directed the petitioner to contact
Respondent No.7 in order to know whether such
permission was obtained for purpose of laying down the
pipeline as required. So also, Respondent No.4 failed to
give required information sought by the Petitioner.
Respondent Nos. 1 to 6 failed to prohibit Respondent No.7
from laying down pipeline through Great Indian Bustard
sanctuary within the area of Karjat Taluka without
following due procedure of Forest Law. The project of
laying down such pipeline has caused disturbance in the
nearby area, damage to the forest life, endangered the
environment as well as life of the protected birds i.e. Great
Indian Bustard. The Petitioner alleges that if such kind of
activity is not arrested at proper time, it will result in the
irreparable loss to the forest life. Consequently, the
Petitioner sought mandatory injunction against the
Respondent No.7 to stop the work of laying down
underground pipeline in protected sanctuary of Taluka
Karjat and other forest lands within Karjat and Shrigonda
Talukas of Ahmednagar District.
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3. By filing reply-Affidavit of Arun Pawar, Tahsildar of
Karjat, Respondent No.5 resisted the petition. According
to Respondent No.5, underground pipeline of the
Respondent No.7 goes through Karmala, Karjat and
Shrigonda Talukas of Ahmednagar District through private
agricultural lands, besides other lands in other Districts
where the Great Indian Bustard Sanctuary within territory
of Maharashtra is situated. It is stated that the work
carried out by Respondent No.7 Company does not come
within domain of Respondent No.5 and as such is not
controlled by it. In other words, Respondent No.5 is un-
concerned with the project work of the laying down
pipeline and therefore, has no concern with the same.
4. Respondent Nos.2, 3 and 4 filed a common reply-
Affidavit. According to them, the pipeline laid by
Respondent No.7 does not pass through any part of the
forest area of Great Indian Bustard Sanctuary. They
submit that the underground pipeline passes through the
agricultural lands of agriculturists which is declared as a
sanctuary in accordance with Wild Life (Protection) Act
1972, so it is necessary to obtain permission of the
National Board for Wild Life (NBWL) for carrying out any
transaction of pine line activity in the said area which is
declared and part of the Sanctuary under provisions of the
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Wild Life (Protection) Act, 1972. They would submit that
by order dated 9-7-2007, such proposal was submitted by
the Central Empowered Committee of the Hon’ble Supreme
Court of India. The proposal was approved by the
competent authority. Again on verification, it was found
that the project does not fall within forest area of Great
Indian Bustard Sanctuary, Karjat Taluka, Ahmadnagar
District as well Karmala Taluka in Solapur District.
Respondent No.7 has deposited amount of Rs.26 crores in
the account of Compensatory Afforestation Fund (CAMPA)
on 19th February 2008 because in some other parts, the
underground pipelines is within the forest area of the
protected Great Indian Bustard Sanctuary though not in
the above referred three (3) Districts.
5. Respondent No.7 filed Affidavit of Rajiv K. Gupta,
Area Manager in rebuttal and reply. His Affidavit purports
to show that the Reliance Gas Transportation
Infrastructure Ltd. has undertaken the project of national
importance of setting up pipeline for transportation of
natural gas, namely, East-West Pipeline. The underground
pipeline, passes from Kakinada in the state of Andhra
Pradesh as well as state of Karnataka and Maharashtra
upto Bharuch in the State of Gujarat, traversing the
distance of about 1380 km. including 563 km in the State
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of Maharashtra within seven (7) Districts of Latur,
Osmanabad, Solapur, Ahmednagar, Pune, Raigad and
Thane. It is stated that a part of the underground pipeline
is laid in the Great Indian Bustard Sanctuary with the due
permission of Hon’ble Supreme Court of India, by payment
of huge amount in Compensatory Afforestation Fund
(CAMPA) and therefore, there is no illegality committed by
Respondent No.7. It is stated that the pipeline is already
commissioned and as such, grant of prohibitory injunction
will cause irreparable damage to Respondent No.7.
Respondent No.7 alleges that the underground pipeline is
completely covered by the surface vegetation and therefore,
no damage is or will be ever caused to the environment.
Respondent No.7 alleges that the Application is filed with
malafide intention to create hurdles in the project. It is
also contended that this Tribunal has no jurisdiction to
entertain the Application because this Application is filed
like Application for Contempt of the directions issued by
the Hon’ble Supreme Court of India. On these premises,
Respondent No.7 sought dismissal of the Application.
6. Considering rival pleadings of the parties, it is
essential to address following issues :
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i) Whether laying down of the underground pipeline
by Respondent no.7 passes through forest area and
requires Forest Clearance as such ?
ii) Whether there is a private forest notified under
any Government Notification as birds sanctuary in the
area where the project in question is proposed to be
implemented or has been already implemented ?
iii) Whether the proposed project suffers from any
illegality and therefore, is liable to be struck down ? Or
that if implemented, the pipeline is required to be
removed in order to restore the original position ?
7. At the outset, let it be noted that any question
relating to the implementation of the Wild Life (Protection)
Act, 1972, is outside purview of the Jurisdiction of the
National Green Tribunal Act, 2010. Section 14(1) of the
N.G.T. Act, 2010 reads as follows :
“The Tribunal shall have the jurisdiction over all
civil cases where a substantial question relating to
environment (including enforcement of any legal right
relating to environment), is involved and such
question arises out of the implementation of the
enactments specified in Schedule I”.
Schedule-I
1. The Water (Prevention and Control of Pollution)
Act, 1974.
2. The Water (Prevention and Control of Pollution)
Cess Act, 1977.
3. The Forest (Conservation) Act, 1980.
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4. The Air (Prevention and Control of Pollution) Act,
1981.
5. The Environment (Protection) Act, 1986.
6. The Public Liability Insurance Act, 1991,
7. The Biological Diversity Act, 2002.
Thus, it is quite clear that only implementation of
the seven (7) Enactments enlisted in Schedule I, will be
within the jurisdiction of the NGT Act. Wild Life
(Protection) Act is outside the list of those seven (7)
enactments and hence, the National Green Tribunal (NGT)
has no jurisdiction to decide any question relating to
implementation of the provisions of that Act. Obviously,
we cannot examine whether any land within the area of
Karjat or Shrigonda Talukas of Ahemadnagar District falls
within protected or notified Sanctuary of Great Indian
Busturd (GIB).
8. Perusal of the record shows that the Respondent
No.7 submitted an Application to the Hon’ble Supreme
Court as directed in “T.N. Godavarman Thirumalpad
Vrs. Union of India and Ors” (I.A. No.2116-2117 of
2007). The Hon’ble Supreme Court of India granted
permission to the Respondent No.7 to lay down such
pipelines as per the Report of the Standing Committee on
National Board for Wild Life and no alternative is
recommended to the proposal as per minutes of the
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meeting held on 10th September 2007 subject to
compliances of certain conditions. It appears that due
compliances were made in this behalf.
9. Now, it is pertinent to note that Respondent No.7
felled 735 trees without permission of the competent
authority. By Order dated 23rd September, 2010. Sub
Divisional Officer, Karjat directed Respondent No.7 to pay
penalty of Rs.43,53,242/- within period of one month and
also plant double of the trees in number, of the trees which
were felled. Respondent No.7 preferred R.T.S. Appeal
No.270 of 2010 before the Additional District Collector,
Ahemadnagar which was dismissed. Obviously, it is
difficult to say that Respondent No.5 did not take any care
or joined hands with Respondent No.7.
10. As regards Forest Clearance issue is concerned,
there is obviously no material to show that any part of the
agricultural land was declared as private forest and
therefore, permission from any competent authority was
required for the purpose of clearance of any part of the
area. Felling of non-scheduled trees was found to be illegal
and therefore, Respondent No.7 was held responsible by
the competent authority. As stated before, penalty was
imposed by the competent authority after giving Show
Cause Notice to Respondent No.7. In case such penalty is
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not recovered, the petitioner is at liberty to point it out to
the Collector for execution of the said order. Still, however,
there is no reason to infer that Forest Clearance
permission was necessary for the Respondent No.7.
Respondent No.7 is said to have damaged environment due
to digging of agricultural lands. It may be mentioned here
that land of the Petitioner is not subjected to any kind of
digging or damage. He has not placed on record as to how
he represents interest of any group of agriculturists. Copy
of the letterhead (Exh.B) shows that the petitioner is
District head of “Akhil Bhartiya Sena” of which the Chief is
Arunbhai Gawali. Thus, it is a Political Organization of
which the petitioner is District Representative. In other
words, the Petitioner is not environmentalist nor, he
represents any organization of agriculturists who suffered
loss due to the project in question. The Petitioner, at the
relevant time, appears to have filed the petition with a view
to gain some political advantage. However, there is hardly
any merit in the petition and therefore, it is liable to be
dismissed.
11. In the result, the petition stands dismissed with
direction that the Collector, Ahmednagar shall verify
whether Respondent No.7 has deposited the amount
regarding the penalty imposed and the amount directed to
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be deposited in CAMPA as per directions of the Hon’ble
Supreme Court of India and if such direction is not yet
complied with then to recover the said amount as if it is
land revenue arrears by attachment of property of
Respondent No.7 and conducting sale thereof by public
auction within period of four (4) months, hereafter.
No costs.
.…………….……………….,JM (Justice V. R. Kingaonkar)
..…….……………………., EM (Dr. Ajay A. Deshpande)
Date : 11th September, 2014