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2011 DIGILAW 930 (SC)

Centre for Envir. Law, WWF-I v. U. O. I.

2011-07-22

CHANDRAMAULI KR.PRASAD, K.S.RADHAKRISHNAN

body2011
ORDER : MM-1 1. List the matter next Friday. Item No. 301 2. I.A. No. 15 was earlier filed on behalf of State of U.P. seeking permission for the construction of an Irrigation Project covering an area of 180.79 Prayer was allowed by this Court subject to the fulfilment of certain conditions. Learned counsel appearing for the State of U.P. submitted that condition no. 2 requiring shifting of villages causing difficulties to the State, therefore, sought permission to seek variation of that conditions before NBWL. Learned counsel appearing on behalf NBWL has submitted that of such an application is preferred within two weeks, the same would be considered in the next meeting and the decision will be placed before this Court in next hearing date. Prayer granted. 3. Post after six weeks. Item No. 302 4. The State of Gujarat has filed an application before the Central Empowered Committee ("CEC") seeking permission to delete 2105.42.41 hectares forest area in 57 villages in four districts of Gujarat State under Section 4 of the Indian Forest Act, 1927 (hereinafter referred to as "the Act"). Details of which are furnished along with the application. 5. CEC placed that application with a report before this Court seeking appropriate orders on the request made by the State of Gujarat. 6. CEC in this report dated 23.6.2010 endorsed the deletion of the areas approved by the Forest Settlement Officer after acknowledging the rights of the villagers in response to the areas notified under Section 4 of the Act. Further it was also reported that the areas have by and large being decided to be excluded on genuine grounds as mentioned in the above mentioned Act. C.E.C., however, imposed following conditions. 1. no area will be deleted on the ground of its allotment done after the issue of notifications under Section 4 of the Indian Forest Act; 2. None of the deleted area will be allowed to be used for mining without obtaining approval under the Forest (Conservation) Act, 1980; 3. for deletion of the area approval under the Forest (Conservation) Act, 1980 will be obtained. However, no NPV or compensatory afforestation charges will be payable as the ares are to be deleted for settlement of rights as per the provisions of the Indian Forest Act, 1927 and 4. The balance areas will be notified as Reserved Forest under Section 20 of the Indian Forest Act, 1980. However, no NPV or compensatory afforestation charges will be payable as the ares are to be deleted for settlement of rights as per the provisions of the Indian Forest Act, 1927 and 4. The balance areas will be notified as Reserved Forest under Section 20 of the Indian Forest Act, 1980. 7. Being aggrieved by condition no. 2, stated herein before, ABG Cement Limited has approached this Court seeking intervention and stated that its rights are effected by condition no. 2 suggested in CEC report. 8. Mr. Andhyarujina, learned senior counsel appearing for the intervenor submitted that ABG Cement Limited had made an application before the Government of Gujarat for the grant of the mining lease in certain tracts of barren land aggregating 730.60 hectares of land in Village Nani Ber for limestone mining. Further it is stated that after the order passed by the Forest Settlement Officer, the State of Gujarat has granted approval to the ABG Cement Limited for lime stone mining of 730.60 hectares of land in Village Nani Ber and by letter dated 30.6.2007 called upon the ABG Cement Limited to make the payment of Rs. 32,94,500/- towards the prospecting charges. 9. Learned senior counsel has further submitted that once the land is deleted on the proposed forest under Section 4 following the procedure under Section 11 of the Act, such land seized to be forest land and therefore provisions of Section 2 of the Forest (Conservation) Act, 1980 do not apply and there is no requirement of obtaining prior approval of the Central Government under that Act. Learned senior counsel has submitted that C.E.C. has wrongly relied upon the Ministry of Environment and Forests (MoEF) guidelines, which was annexed as Annexure R-4 and Stated that these guidelines do not refer to lease which are deleted under the Notification under Section 4 of the Act. Reference was also made in the judgment of the Court in Union of India v. Abdul Jalil, (1954) 4 SCR 158. 10. Mr. P.S. Narasimha, learned amicus curiae and the learned counsel appearing for the State of Gujarat submitted it is unnecessary to examine those contentions at this state and the application preferred for intervention itself is premature. Reference was also made in the judgment of the Court in Union of India v. Abdul Jalil, (1954) 4 SCR 158. 10. Mr. P.S. Narasimha, learned amicus curiae and the learned counsel appearing for the State of Gujarat submitted it is unnecessary to examine those contentions at this state and the application preferred for intervention itself is premature. Further in the reply affidavit filed by the State of Gujarat it is stated that no lease has formerly been granted to the ABG Cement Limited in any of the areas notified under Section 4 of the Act and certain proposal regarding deleting of the lease submitted by the Government of India is pending consideration before the Ministry of Environment and Forests (MoEf). Further, it was also pointed out that ABG Cement Limited made an application for seeking approval under the Forest (Conservation) Act, 1980 before the concerned Ministry. 11. We are of the view that, at this stage, it is unnecessary to examine various contentions raised by the learned senior counsel for ABG Cement Limited, since we are only concerned with the question whether the application preferred by the State of Gujarat for deletion of forest land be granted or not. CEC report is in favour of the deletion subject to certain conditions. The Ministry of Environment and Forests (MoEF) in its letter dated 7.1.2010 produced as Annexure R-3 before this Court has stated that the application be considered favourably under such circumstances we are of the view that the request made by the State of Gujarat for deletion of the area as shown in its application is justified. We therefore allow the application as prayed for. 12. However, with regard to the condition no. 2 imposed by CEC, we express no final opinion specially in view of the stand taken by the State of Gujarat that no lease has formerly been granted to ABG Cement Limited in any of the areas as notified under Section 4 of the Act. ABG Cement Limited therefore would be aggrieved by the condition imposed by CEC, only if the State Government executes a lease deed in its favour or grants permission for mining, which is yet to happen. We therefore leave that question open. 13. ABG Cement Limited therefore would be aggrieved by the condition imposed by CEC, only if the State Government executes a lease deed in its favour or grants permission for mining, which is yet to happen. We therefore leave that question open. 13. Learned senior counsel has further submitted that he would be permitted to move an application before the Ministry of Environment and Forests (MoEF) seeking approval for the grant of leased and also to make a plea before the before the Ministry of Environment and Forest (MoEF) for permission under the Forest (Conservation) Act, 1980 and also to challenge the condition No. 2 ABG Cement Limited, if so advised may raise all those contentions before the Ministry of Environment and Forest (MoEF) and it is for the MoEF to consider with which we express no final opinion. I.A. No. 2881 of 2009 preferred by State of Gujarat for deletion stands allowed, as above. 14. I.A. Nos. 3026-3027 filed by ABG Cement Limited are accordingly disposed of. Item No. 303 15. This application preferred seeking approval for diversion of additional forest land to the extent of 35 hectares in place of 10 hectares for the project fencing and construction of road along the Indo-Myanmar boarder between Boarder Pillar No. 79 to Boarder Pillar no. 81 on the terms and conditions as envisaged by the CWLW, Manipur and also for the consequence directions. 16. Earlier the National Board for Wild Life had sanctioned 10 hectares. Now the prayer is for diversion of further additional extent of 35 hectares of land which is a matter to be examined by the National Board for Wild Life if an application is made in the prescribed proforma. On receipt of an application NBWL will consider the same and make their recommendations within a period of two months thereafter. 17. Post the matter after two months. Item No. 304 18. In view of the decision taken by the Standing Committee of NBWL referred at p. 74 of the complication. I.A. Nos. 148 and 149 are allowed. 19. Application for impleadment is also allowed. Item No. 305 20. Copy of the application and other relevant documents connected with I.A. No. 1433 of 2005 be furnished to Mr. P.S. Narasimha, Sr.Adv., amicus curiae. 21. List the matter after one month. Item No. 306 22. I.A. Nos. 148 and 149 are allowed. 19. Application for impleadment is also allowed. Item No. 305 20. Copy of the application and other relevant documents connected with I.A. No. 1433 of 2005 be furnished to Mr. P.S. Narasimha, Sr.Adv., amicus curiae. 21. List the matter after one month. Item No. 306 22. Applications are allowed in terms of para 6 of the report of CEC dated 14/10/2009. Item No. 307 23. I.A. is dismissed as infructuous. Item No. 308 24. Application is allowed in terms of the conditions mentioned in para 6 of the CEC report. Item No. 309 25. No representation. 26. Perused the report of CEC. 27. In terms of the report of CEC, applications stand dismissed. Item No. 310 28. Applications are allowed. 29. Liberty is also given to the other side of file additional affidavit. 30. Post on 5.8.2011 to file objection. Item No. 311 31. Copy of the CEC report be served on the Standing counsel for the State of Chhatisgarh and the report be transmitted to the Government for implementation of the recommendations. The application is disposed of. Item No. 312 32. No appearance for the applicant. 33. Perused the report of the CEC. 34. In view of the report of the CEC, the application stand rejected. Item No. 313 W.P.(C) 4 of 2010 35. Learned counsel for the petitioner seeks permission to withdraw the writ petition Permission is granted. The writ petition is dismissed as withdrawn. W.P.(C) Nos. 567, 568, 574, 575, 576, 578 of 2009 36. Learned counsel for the petitioner seeks permission to withdraw the writ petitions with liberty to the petitioners to seek appropriate remedy in accordance with law. Permission granted. The writ petitions are dismissed as withdrawn with liberty as prayed for. Item No. 314 37. List next week as first case. 38. However, it is made clear that no further adjournment will be granted. Item No. 315 39. We have heard Mr. G.E. Vehanvati, learned A.G. and Mr. P.S. Narasimha, Sr.Adv. Amicus Curiae. 40. Perused the decision of the NBWL dated 12.4.2010. The committee has already approved prayer no. 1. 41. In terms of the decision of the NBWL held on 12.4.2010, prayer no. 1 on this application is allowed. Item No. 316 42. I.A. Nos. 1791-1792 of 2007 List after Two weeks' for the response of the CEC, 43. Amicus Curiae. 40. Perused the decision of the NBWL dated 12.4.2010. The committee has already approved prayer no. 1. 41. In terms of the decision of the NBWL held on 12.4.2010, prayer no. 1 on this application is allowed. Item No. 316 42. I.A. Nos. 1791-1792 of 2007 List after Two weeks' for the response of the CEC, 43. I.A. No. 139 of 2010 - List next week as miscellaneous item. Item No. 317 44. List after the sandalwood cases. Item No. 318 45. List after two weeks.