Gujarat High Court
Biren Rameshchandra Padhya vs Union Of India on 6 October, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 34 of 2021
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/WRIT PETITION (PIL) NO. 34 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BIREN RAMESHCHANDRA PADHYA
Versus
UNION OF INDIA
==========================================================
Appearance:
ABHISST K THAKER(7010) for the Applicant(s) No. 1
MS. MAMNISHA LUVKUMAR SHAH, LD. GOVERNMENT PLEADER/PP(99)
with MS. AISHWARYA GUPTA, LD. AGP for the Opponent(s) No. 2
DS AFF.NOT FILED (N)(11) for the Opponent(s) No. 3,4,5
MR DEVANG VYAS(2794) for the Opponent(s) No. 1
MR. MIHIR THAKORE, LD. SR. COUNSEL WITH MR NIRAG N
PATHAK(5622) for the Opponent(s) No. 6
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 06/10/2021
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C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. By this writ application filed in public interest, the writ applicant, claiming to be a public spirited citizen, has prayed for the following reliefs;
"a) This Hon'ble Court may be pleased to issue an appropriate writ, order or direction to the respondents to quash and set aside the order being No.6-GJC/047/2012- quash and set aside the order being No.6-GJC/047/2012-BHO/792 for 38.71 hectares, No.6-GJC/047/2012-BHO/950 for 20.76, No.6-GJC/047/2012-BHO/731 for 27.02 hectares at Annexure-B;
b) This Hon'ble Court be pleased to issue an appropriate writ, order and/or direction to the respondents not to transfer any further Forest Land at Hazira, Surat to any user agency including Respondent No.6
c) This Hon'ble Court be pleased to issue an appropriate writ, order and/or direction to the respondents to develop the said Reserve Forest Land at Hazira, Surat for the development of habitat for Birds and mammals;
d) This Hon'ble Court be pleased to direct respondents no.1 to 5 to report on compliance of in-
principle approvals in the Hazira Area granted for diversion under the Forest Conversation Act, 1980;
e) Pending hearing and final disposal of the present petition, the Hon'ble Court be pleased to stay the implementation, operation and execution of the action respondents in transferring/ allotting the forest land at Hazira, Surat to any other agency including Respondent No.6;
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f) Pending hearing and final disposal of the petition, this Hon'ble Court be pleased to direct the Respondents not to change status of forest land at Hazira, Surat;
g) This Hon'ble Court may be pleased to pass such other and further order in the interest of justice that may be in the facts and circumstances of the case."
2. On 22nd February, 2021, this Court passed the following order;
"1. We have heard Mr. P.C.Kavina, the learned Senior Counsel assisted by Mr. Abhisst K. Thakkar, the learned counsel appearing for the writ-applicant.
2. This is a Public Interest Litigation. The writ- applicant, an NRI, has brought to our notice that certain mandatory conditions, which the respondent No. 6 was obliged to fulfill as imposed in the order passed by the Ministry of Environment and Forest dated 08.06.2013 (Annexure-B to this writ- application page No. 25) have not been complied with or rather flouted.
3. The conditions imposed are as under:-
1. The legal status of the forest land shall remain unchanged.
2. (a) Compensatory afforestation shall be taken up by the Forest Department over 20.76 ha non-forest land Survey No. 258/3/P, 23,24,33,38,39P, village Sanada, Taluka: Palitana, District: Bhavnagar at the cost of the User Agency.
(b) The non forest land shall be transferred and mutated in favour of he Forest Department.
(c) The non-forest land shall be notified as Reserved Page 3 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 Forest.
3. The Penal compensatory afforestation over 41.52 ha. Of degraded forest land compartment/Survey No.
219. Forest Division-Vyara, Village Kanji, Taluka- Songadh, District: Tapi will be raised at the cost of User Agency.
4. The cost of compensatory afforestation and Penal afforestation shall be deposited in advance at prevailing wage rates with the Forest Department by the User Agency.
5. a) The User Agency will provide 110 ha. of non- forest land in "Lion Corrior" area , suitable as Lion habitat in Village Sanada, Taluka: Palitana, District:
Bhavnagar.
b) The non-forest land shall be transferred and mutated in favour of the Forest Department.
c) The non-forest land shall be notified as Reserved Forest.
6. As a CSR the User Agency will Agency will deposit 2.5 times of the market value prevailing in 2006 for the area in "Lion Conservation Society."
7. a) The State Government shall charge the "Net Present Value" (NPV) for the 20.76 ha. of forest land to be diverted under the proposal from the User Agency as per the orders of the Hon'ble Supreme Court of India dated 30/10/2002, 01/08/2003, 28/03/2008 and 09/05/2008 in IA-566 in W.P. (Civil) No. 202/1995 and as per the guidelines issued by the Ministry vide letters No. 5-1/1998-FC (Pt.II) dated 18/09/2003, as well as letter No. 5-2/2006-FC dated 03.10.2006 and 5-3/2007 dated 05/02/2009 in this regard.
b) Additional amount of NPV of diverted forest land, if any, becoming due after finalization of the same by Page 4 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 the Hon'ble Supreme Court of India on receipt of the report from the Expert Committee, shall be charged by the State Government from the User Agency, which shall furnish an undertaking to this effect.
8. All the funds received from User Agency under the project shall be transferred to the Ad-hoc Compensatory Afforestation Fund Management & Planning Agency (CAMPA) in Saving Bank A/c No. (CAF Gujarat) SB01025208 Corporation Bank, Lodhi Complex, New Delhi 110-003.
9. The User Agency will obtain clearance under the provisions of ST & OTFE (Recognition of Forest Rights) Act, 2006 as may be applicable, before the final approval. A certificate to the effect that ll claims and rights over the proposed forest land have been settled will be forwarded to this office by the State- Government before the final approval.
10. a) Demarcation of the area shall be done on ground at the project cost using four feet high RCC pillars with Serial Numbers, forward and back bearing and distance from pillar to pillar.
b) At the cost of User Agency, the area of compensatory afforestation will also be fenced, if demanded by the State Forest Department.
11. No tree feeling will be allowed.
12. The forest land shall not be used for any purpose other than what is specified in the project proposal.
13. All statutory Acts and rules made thereunder applicable to the project proposal.
14. Any other condition, which the Central Government may stipulate.
4. We also heard Ms. Manisha Lavkumar Shah, the learned Government Pleader assisted by Mr. Chintan Page 5 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 Dave, the learned Assistant Government Pleader.
5. At this stage, Mr. Chintan Dave, the learned Assistant Government Pleader brought to our notice that one Public Interest Litigation with respect to the very same respondent No. 6 and also with respect to the same allotment of forest land is pending before the Court of the Hon'ble The Chief Justice. It is brought to our notice that, the said litigation has something to do with the mutation of entry in the revenue record pursuant to the allotment of land by the government in favour of the respondent No.6.
6. Request made is that both the petitions to be heard together.
7. Such request may be made before the Hon'ble the Chief Justice. It is for the Hon'ble the Chief Justice to decide whether both the petitions should be clubbed & heard by one court or otherwise.
8. Let NOTICE be issued to the respondents returnable on 16.03.2021. The respondents be served directly through Email. Regular direct service is also permitted. "
3. Thereafter, on 22nd September, 2021, the following order was passed;
"We have heard Mr. Abhisst K. Thaker, the learned counsel appearing for the writ-applicant, Mr. Devang Vyas, the learned ASG for the Union of India, Ms. Manisha L. Shah, the learned Government Pleader for the State of Gujarat and Mr. Mihir Thakore, the learned Senior Counsel assisted by Mr. Nirag Pathak, the learned advocate appearing for the respondent no.6.
The affidavits-in-reply filed on behalf of the State as well as the respondent no.6 are on record.Page 6 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022
C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 Essentially, this Court wanted to know whether the terms and conditions of the allotment of the forest land in favour of the respondent no.6 by the State Government, after seeking approval from the Union of India, have been complied with or not. According to the State, all conditions are complied with, and according to the respondent no.6 also all the conditions are complied with. However, according to the writ-applicant, some of the conditions are yet to be complied with and few conditions have been complied in part. In such circumstances, it would not be necessary for the Union of India to file any reply, however, if the Union of India still wants to file its reply, It may place it on record. We want Mr. Thaker, the learned counsel appearing for the writ-applicant, to study both the replies which are on record today and prepare a note as regards the deficiencies, if any, which are to be taken care of. Mr. Thaker may share his note with the learned counsel appearing for the State as well as the respondent no.6, so that they can also appropriately respond in the form of a note. One copy of the said note shall also be furnished to Mr. Devang Vyas, the learned ASG.
We would also like to know from the State Government whether any part of the forest land has been allotted to persons other than the respondent no.6. We are saying so because it has been brought to our notice that applications from real-estate investors having no credentials in the world of industries and who are only interested in holding the lands for extortion from the existing units are being entertained on firstcome-first-serve basis by the forest officials and the State Government. In this regard, our attention had been drawn on the very first date of hearing to a Government Resolution dated 12.06.2015 issued by the Forest and Environment Department. We would like to know whether this resolution is being implemented by the State Government or not.
Post this matter for further hearing on 06.10.2021 on Page 7 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 top of the board. "
4. We have heard Mr. Abhisst K. Thaker, the learned counsel appearing for the writ applicant, Ms. Manisha Luvkumar Shah, the learned Government Pleader assisted by Ms. Aishwarya Gupta, the learned AGP appearing for the State-respondents, Mr. Devang Vyas, the learned Addl. Solicitor General of India appearing for the Union of India and Mr. Mihir Thakore, the learned senior counsel assisted by Mr. Nirag Pathak, the learned advocate appearing for the respondent No.6.
4. The entire controversy, as raised in the present petition, revolves around three parcels of forest land, namely:
Sr. Land Particulars Survey No. Admeasuring No.
1. Reserved and Unclassed Part of Survey No. 38.71 ha Forest Land 179/pt at Village: Hazira, Tal:
Choryasi, Surat
2. Reserved Forest land Part of Survey No. 27.02 ha 179/pt at Village: Hazira, Tal:
Choryasi, Surat
3. Reserved forest land Part of Survey No. 20.76 ha 434/A/1/pt at Village: Hazira, Tal:
Choryasi, Page 8 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 Surat
5. Pursuant to the insolvency proceedings, being initiated against the Essar Steel India Ltd., i.e., the original User Agency, the name of Essar Steel India Ltd. was changed to that of the Respondent No.6 and subsequently, the Respondent No. 6 preferred applications for name change in all the proposals for the aforementioned three parcels of Lands.
6. PROCEDURE TO BE ADOPTED FOR DIVERSION OF FOREST LAND FOR NON-FOREST PURPOSES, IN FAVOUR OF PRIVATE ENTITIES 6.1 Section 2 of the Forest Conservation Act, 1980 (hereinafter referred to as "the FC Act"): No forest land shall cease to be reserved or shall be used for non-forest purposes, or shall be assigned to any private person, except with the prior approval of the Central Government.
6.2 The Forest (Conservation) Rules of 2003 (hereinafter referred to as "the Rules"), prescribes the procedure for submission of proposals seeking clearance under the FC Act.
6.3 Rule 6: The User Agency is required to make a proposal in the prescribed Format with all relevant particulars to the State Government. The factual details and feasibility of the proposal, certification of maps, site- inspections, etc. are examined at various levels of the Page 9 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 State Government.
6.4 Rules 6(3)(l) and 6(4): the State Government is required to forward along with its recommendations all proposals to the Central Government.
6.5 Rule 7 of the Rules: Procedure to be followed for processing the proposals received by the Central Government. If required, the Central Government shall refer the proposal to the Regional Empowered Committee (constituted under Rule 4A)for its advice on issues such as whether the land indicated in the proposal forms part of a nature reserve, national park, wildlife sanctuary, biosphere reserve or forms part of the habitat of any endangered or threatened species of flora and fauna or of an area lying in severely eroded catchment, etc. 6.6 Rule 7(4)(g): If it deems necessary, the Central Governmentas may grant in-principle approval (Stage-I approval) subject to fulfillment of stipulated conditions, or reject the same and shall communicate the same to the concerned State Government.
6.7 Rule 8: Procedure for submission of the report on compliance to conditions stipulated in the in-principle approval and grant of final approval by the Central Government.
Page 10 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 6.8 Rule 8(1)(a): The Divisional Forest Officer prepares a demand note containing item-wise amount of compensatory levies such as cost of creation and maintenance of compensatory afforestation, Net Present Value (NPV), cost of implementation of catchment area treatment plan or wildlife conservation plan etc. to be paid by the User Agency, and communicates the same, along with a list of documents to be submitted by the User Agency in compliance with the conditions stipulated in the in-principle approval.
6.9 The compliance report is then submitted to the State Government by the Nodal Officer, as prescribed by Rule 8(g) to 8(i). As per Rule 8(1)(k), if the State Government finds that the compliance report is complete in all respects then the same shall be forwarded to the Central Government. In case the Ministry of Environment, Forests and Climate Change or the Regional Office, as the case may be, finds that the compliance report is complete in all respect, then it accords the final approval (Stage-II approval) under the FC Act and communicates such approval to the State Government.
7. DIVERSION OF LAND ADMEASURING 38.71 HA.
7.1 A proposal was made by the predecessor entity of the Respondent No. 6, i.e., the Essar Steel in the year 2010 for diversion of 38.71 ha Reserved and Unclassed Forest Land Page 11 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 being part of part of Survey No. 179/pt, Hazira, for setting up 300 MW Power Plant at Hazira.
Sr. No Status of Approval Date
1. In-principal approval granted by the Central 07.04.2014 Government (pgs. 28 to 30 of the petition)
2. A compliance report was sent by the State 16.03.2021 Government to the Central Government on 05.03.2021 and the Central Government was accorded its formal approval.
7.2 The major conditions (along with their status of compliance), as stipulated in the inprincipal approval accorded by the Central Government, are as hereunder:
Sr. Condition Status of Compliance
No.
1. Condition nos. 2(a)&2(b) Non-forest land [Survey
nos. 314pt,
Compensatory afforestation 2,8,9,10,13,14,18,20,26
shall be and 27] admeasuring
taken up by the Forest 121.40 ha has been
Department over 121.40 Ha. handed to Forest
Non- forest land (three times of Department by User
demanded area) at the cost of Agency on 3/3/2021 and
the user agency andthe non- mutation has been done in
forest land shall be transferred name of forest
and mutated in favour of Forest department.
Department.
2. Condition no. 3: The user agency has paid
Rs.3,54,91,656/- towards
The cost of compensatory Compensatory
afforestation at the prevailing Afforestation on
wage rates as per 17/12/2016 and the
compensatory afforestation difference of
scheme and the cost of survey, Compensatory
demarcation and erection of Afforestation amount (due
permanent pillars on the CA to change in daily wage
land shall be deposited in rate) of Rs. 58,76,972/- has
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advance with the forest been paid by user agency
department by the project on 06.03.2021.
authority. Compensatory
afforestation scheme shall be
for 10
years at the cost of user
agency
3. Condition no. 4(a) The user agency has paid
Rs. 24232460/- toward cost
The State Government shall of NPV (Net Present Value),
charge the Net Present Value which is in accordance with
(NPV) for the 38.71 ha. of forest the orders of the Hon'ble
land to be diverted under the Apex Court and also in
proposal from the user agency accordance with the
as per the orders of the Hon'ble guidelines issued by the
Apex Court in IA-566 in W.P. Central Government.
( Civil) No. 202/1995 and as per
the guidelines issued by the
Central Government.
4. Condition No. 5 The funds, in respect of the
various conditions imposed
All the funds received from the as specified hereinabove,
User Agency under the project have been transferred by
shall be transferred to the the User Agency to the Ad-
account of the Adhoc hoc Compensatory
Compensatory Afforestation Afforestation Fund
Fund Management & Planning Management & Planning
Agency. Agency.
5. Condition no. 6(a) and 6(b) The user agency has
deposited the requisite
The user agency will defray the amount, i.e., Rs. 6,78,739/-
cost of removal of 6009 trees in on 23.12.2016 with the Ad-
the forest land proposed for hoc CAMPA Account, New
diversion and the amount shall Delhi, which is the costfor
be deposited in the Ad-hoc removal of 6009 trees.
CAMPA, New Delhi.
8. DIVERSION OF RESERVED FOREST LAND
ADMEASURING 27.02 HA.
8.1 A proposal was made by the predecessor entity of Respondent No. 6, i.e., Essar Steel in the year 2009, for Page 13 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 diversion of 27.02 ha Reserved Forest Landbeing part of Survey No. 179/pt, Hazira, for construction of Raw material Facilities and utilities at Hazira.
Sr. No. Status of Approval Date 1. In-principal approval granted by the Central 13.07.2015
Government (pgs. 31 to 34 of the petition)
2. A compliance report was sent by the State 16.03.2021 Government to the Central Government on 05.03.2021 and the Central Government was accorded its formal approval .
8.2 The major conditions (along with their status of compliance), as stipulated in the inprincipal approval accorded by the Central Government, are as hereunder:
Sr. No. Condition Status of Compliance
1. Condition no. 3(a) and Non-forest land [Survey nos.
3(b): 314 pt, 1,4,5,24,17,6 and 16]
admeasuring, 84.98 ha has
Compensatory Afforestation been handed to Forest
shall be taken up by the Department by user agency forest Department over on 3/3/2021 and mutation has 82.00 ha. Non-forest land been done in name of forest (survey No.314 paiki, department.
village- Andhau, TalBhuj, District- Kachchh) at the cost of the user agency and the non-forest land shall be transferred and mutated in favour of forest department before issue of the stage-II clearance.
2. Condition No. 4: The user agency has paid Rs.
2,39,72,947/- toward CA The cost of compensatory (Compensatory Afforestation) Page 14 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 afforestation at the out of which Rs. 39,72, 947/- prevailing wage rates as was paid on 12/08/2016 and per compensatory Rs. 2,00,00,000/- was paid on afforestation scheme and 29/08/2016. Further the the cost of survey, difference of CA amount (due demarcation and erection to change in daily wage rate) of permanent pillars on the of Rs. 39,69,619/- was also CA land shall be deposited paid by the user agency on in advance with the forest 06/03/2021. The User Agency department by the project has also paid deposited Rs. authority. 2,08,670/- for removal of trees on 12/09/2016.
3. Condition No. 5(a): The user agency has paid Rs.1,69,14,520/- toward cost The State Government shall of NPV () out of which Rs. charge the Net present 1,00,00,000/- was paid on value (NPV) for the 27.02 26/7/2016 and Rs. 69,14,520/- ha forest area to be was paid on 12/08/2016.
diverted under this proposal from the user agency as per the orders of the Hon'ble Apex Court in IA-566 in W.P. ( Civil) No. 202/1995 and as per the guidelines issued by the Central Government.
4. Condition No. 8: The user agency has paid Rs.
1,00,00,000/- on 12/09/2016 For imposing any additional to account of Nodal Officer, condition, the State FCA (Forest Conservation Government should Act), Gujarat State.
formulate norms in the
interest of conservation,
protection and
development of forest and
wildlife and recovery of Rs.
1.00 crore was proposed by
the Nodal Officer.
9. STEPS TAKEN BY THE RESPONDENTS IN
RESPECT OF THE ISSUES RAISED BY THE
PETITIONER, IN RESPECT OF LANDS ADMEASURING 38.71 HA AND 27.02 HA Page 15 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 9.1 After the formal approval was granted by the Central Government in respect of the aforementioned two parcels of lands, i.e., Land admeasuring 38.71 Ha and 27.02 Ha, a report was sought by the Central Government from the State Government as regards the issues raised by the petitioner.
9.2 A report was submitted by the State Government on 20.05.2021 stating that the User Agency had violated certain provisions of the Indian Forest Act, 1927 by dumping waste and carrying out unauthorised construction without approval from the competent authority on the land indicated in the proposal.
9.3 The State has also registered a First Offence Report under Sections 26(1)(a), 26(1)(d), 26(1)(g), 26(1)(h) and 26(1)(i)of the Indian Forest Act, 1927 on 30.03.2021 against the Respondent No. 6 for the violations in respect of both the parcels of lands. The Integrated Regional Office, Gandhinagar submitted the details of the aforesaid violation to the Ministry of Environment, Forests and Climate Change on 21.05.2021 with specific opinion for directions/orders.
9.4 Subsequently, the matter was deliberated in two meetings of the Regional Empowered Committee (RE) on 24.06.2021 and 31.08.2021 and the REC has approved the proposal of the State Government for additional conditions Page 16 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 to be imposed for diversion of 38.71 ha Reserved & Unclassed Forest Land for setting up 300 MW Power Plant at Hazira and for diversion of 27.02 ha Reserved Forest Land for construction of Raw material Facilities and utilities at Hazira, in favour of the User Agency along with the following specific conditions:
i. The State Government shall impose Penal NPV as per Para 1.21 of the 2019 Handbook of Forest (Conservation) Act, 1980 and Forest Conservation Rules, 2003 (guidelines and clarifications)[hereinafter referred to as the "FC Handbook"] for violation of the FC Act on the entire area from the date of violation.
ii. The forest land shall handed over to the User Agency only after receipt of all levies.
iii. The State Government shall initiate action against officials and user agency responsible for violation under the Indian Forest Act, 1927, All Service Rules and Civil Service Rules.
9.5 The minutes of the meeting of the REC held on 31.08.2021 during which such recommendations were made, have been made available to the State Government on 01.09.2021 and formal orders in that regard were issued by the Central Government on 13.09.2021. The State Government is in the process of implementing the Page 17 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 said orders.
10. LAND ADMEASURING 20.76 HA.
10.1 A proposal was made by the User Agency for diversion of the Land admeasuring 20.76 Ha for construction of housing accommodation and allied facilities in Village-Hazira was made in the year 2008. The Central Government accorded its in-principle approval on 08.06.2013. No formal approval has been granted to the User Agency in respect of this land.
10.2 History of Litigation in respect of Land Admeasuring 20.76 Ha.
i. One Farook Shaikh had preferred a public interest litigation before this Court, being the Writ Petition (PIL) No.1 of 2013, raising grievance against the allotment of the said land, constructions carried out and method and manner of allotment of the said land, alleging the same to be contrary to the Indian Forest Act, 1927 and Forest (Conservation) Act, 1980.
ii. The State Government stated that the area involved has been declared as a 'reserved forest' and it was found that buildings have been constructed by the company to accommodate around 628 families who are no other than the employees of the company working at the Hazira plan.
Page 18 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 Initially, the work was ordered to be stopped but the first joint survey by Surveyors of DILR, Surat, and of Vyara in the year 2007 revealed that the land was not a 'forest land' but was outside the forest area. On such report being filed, the Deputy Conservator of Forest, Vyara, had lifted the ban on the construction. At a later stage, it was realized that such map and the survey was faulty and, therefore, a fresh survey was undertaken which finally revealed that the land in question was a 'forest land'.
iii. The State Government after following the necessary procedure along with its recommendations, including imposition of necessary penalty, forwarded the same to the Central Government for its consideration. Considering that the matter was pending consideration before the Central Government, this Hon'ble Court vide its order dated 03.05.2013, was pleased to dispose of the said public interest litigation and the matter was kept on 27.06.2013 for reporting the compliance.
iv. The order dated 03.05.2013 passed by the Hon'ble Court in WPPIL No. 1 of 2013 was assailed before the Hon'ble Apex Court by the petitioner therein, by preferring Special Leave Petition, being SLP(C) No.17478 of 2013 and the Hon'ble Apex Court was pleased to pass an interim- order dated 08.05.2013, whereby, the compliance of order dated 03.05.2013 was stayed and it was further directed that whilst the respondents were e free to process the Page 19 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 request of the User Agency, no final order on the same shall be passed.
11. The major conditions (along with their status of compliance), as stipulated in the inprincipal approval accorded by the Central Government, are as hereunder:
Sr. Condition Status of Compliance
No.
1. Condition No. 2(a) The compliance of this
condition is still pending and
Compensatory afforestation several reminders have been
shall be issued by the State authorities,
taken up by the forest starting from the year 2014 to
department over 20.76 ha non- the latest, being
forest land survey No. 258/3/p communication dated
23, 24, 33, 38, 39p, 06.08.2021. It, however, villagesanala, Taluka- Palitana, appears that the mutation of DistrictBhavnagar at the cost of entries in the revenue records the user agency and the non- is being processed at the level forest land shall be transferred of the Collector. and mutated in favour of the forest department.
2. Condition Nos. 3& 4 The user agency paid Penal CA (Compensatory The penal compensatory Afforestation) amount of Rs. afforestation over 41.52 ha. of 1,02,42,365/- dated 9/11/2017 degraded forest land in account of Ad-hoc CAMPA compartment/ survey No.219. (Compensatory Afforestation Forest division-Vyara, Village- Fund Management and Kanji, TalukaSongadh, District- Planning Authority) account. Tapi will be raised at the cost of The difference of penal CA user agency and the same shall (Compensatory Afforestation) be paid in advance. amount (due to change in daily wages rate) will be recovered before the actual plantation.
The penal compensatory afforestation plantation will be taken after formal approval.
3. Condition No. 5(a) & 5(b) The compliance of this condition is still pending and The User Agency will provide several reminders have been 110 ha. Of non- forest land in issued by the State authorities, Page 20 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 "Lion Corridor" area, suitable as starting from the year 2014 to Lion habitat in villageSanada, the latest, being Ta-Palitana, DistrictBhavnagar communication dated and the non- forest land shall be 06.08.2021. It, however, transferred and mutated in appears that the mutation of favour of the forest department. entries in the revenue records is being processed at the level of the Collector.
4. Condition No. 6 The User Agency has deposited Rs. 173968800/-
As a part of CSR, the user dated 9/11/2017 in account of agency will deposit 2.5 times of Ad-hoc CAMPA the market value prevailing in (Compensatory Afforestation 2006 for the area in "Lion Management and Planning Conservation Society". Authority) under Wildlife Conservation Plan.
5. Condition No. 7(a) The user agency has paid Rs.
16914520/- towards cost of The State Government shall NPV (Net Present Value) on charge the 'Net Present Value" 9/11/2017 in Ad-hoc CAMPA (NPV) for the 20.76 ha. Of forest (Compensatory Afforestation land to be diverted under the Management and Planning proposal from the user agency Authority) account. as per the orders of the Hon'ble Apex Court dated 30/10/2002, 01/08/2003, 28/03/2008 and 09/05/2008 in IA-566 in W.P. (Civil) No. 202/1995 and as per the guideline issued by the
6. Condition No. 9 The user agency has obtained requisite certificate dated The user agency will obtain 15/11/2013, from Collector, clearance under the provision of Surat under the provisions of Scheduled Tribes and Other Scheduled Tribes and Other Traditional Forest Dwellers Traditional Forest Dwellers (Recognition of Forest Rights) (Recognition of Forest Rights) Act, 2006as may be applicable, Act, 2006. before the final approval, A certificate to the effect that all claims and rights over the proposed forest land have been settled will be forwarded to this office by the state Govt. before the final approval.
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12. SUMMARY REVOCATION 12.1 The petitioner has raised a contention placing reliance upon Rule 8(2)(a) of the 2003 Rules, stating that the in-principal approval granted to the User Agency is liable to revoked.
12.2 A perusal of the said provision indicates that in cases where compliance of conditions in the in-principle approval is awaited for more than 5 years, then the same may be revoked. However, the power to grant the in- principle as well as the Formal approval lies with the Central Government as prescribed by Section 2 of the FC Act and Rules 7 & 8 of the 2003 Rules. Thus, the power of summary revocation as sought to be contended by the Petitioner, is also within the domain of the Central Government.
13. APPROVAL FROM THE STATE WILDLIFE BOARD AND THE NATIONAL WILDLIFE BOARD 13.1 It has been contended by the petitioner that approval has not been obtained by the User Agency from the State Wildlife Board and the National Wildlife Board.
13.2 Chapter 12 (12.5) of the FC Handbook, clearly states that recommendation of Standing Committee of the National Board of Wildlife under the provisions of Wildlife (Protection) Act, 1972 is required for taking developmental activities in/over an area falling within eco-sensitive zones or protected areas. The three parcels of lands, in question, do not fall within any eco-sensitive zone or protected area and therefore, the question of taking approval from Page 22 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 National Board of Wildlife or the State Board of Wildlife, does not arise.
13.3 The User Agency has submitted undertakings as per Condition Nos. 13, 14 and 19 of the in-principle approval dated 07.04.2014, for diversion of 38.71 ha Reserved and Unclassed Forest Land being part of part of Survey No. 179/pt, to ensure that because of this project, no damage is caused to the Wildlife of the area. The User Agency has also submitted similar undertakings as per Condition Nos. 16 & 24, of the in-principle approval dated 13.07.2015, for diversion of 27.02 ha Reserved Forest Land being part of Survey No. 179/pt, Hazira, for construction of Raw material Facilities and utilities at Hazira.
14. VALUE OF THE LAND TO BE RECOVERED FROM THE USER AGENCY 14.1 It has been contended by the petitioner that the valuation ought to be as per the value in 2020 and not as per 2014, as is requested by the User Agency. The said contention is bereft of any details and is completely silent regarding the context in which it has been made. It appears that the petitioner is attempting to raise a question regarding the value of forest land diverted for non- forest purposes which is to recovered, from the user agencies.
14.2 In pursuance of the orders of 29.10.2002 of the Supreme Court in Writ Petition (Civil) No. 202/95 in addition to the funds realized for compensatory afforestation, the Net Present Value (NPV) of forest land Page 23 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 diverted for non- forest purposes is also to be recovered from the user agencies, for undertaking forest protection, other conservation measures and related activities.
14.3 The State Government has also framed a policy, through Government Resolution dated 09.09.2008, whereby the rates of NPV for diversion of forest land for non-forest purposes have been revised. It should be noted that different rates have been specified depending upon the type of forest land in different lands. There has been no subsequent revision in such rates.
15. In respect of the contention of the petitioner that additional land has been allotted to the User Agency despite previous violations: No land in addition to the aforementioned three parcels of lands have been allotted to the User Agency. In case any such allotment is made, the same shall have to conform to the procedure for allotment, as prescribed in the FC Handbook, as stated hereinabove.
16. COMPLIANCE OF THE ORDER DATED 22.09.2021 PASSED BY THIS COURT IN THE PRESENT PROCEEDINGS 16.1 During the course of the hearing of the present petition on 22.09.2021, certain contentions were raised by the petitioner and it was alleged that applications from real-estate investors having no credentials in the world of industries and who are only interested in holding the lands for extortion from the existing units are being entertained on first comefirst-serve basis by the forest officials and the Page 24 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 State Government. The attention of this Court was also drawn to the Government Resolution dated 12.06.2015 in this regard. This Court directed the respondent state to place on record the details of lands allotted to persons other than respondent no. 6.
16.2 There a total of 10 proposals where forest land has been diverted in Hazira, Choryasi, Surat, after final approvals have been issued by the Central Government.
17. In the aforesaid context, a note has been filed, which reads thus;
Sr. Issue Status No.
1. Whether any part of forest land has Till now a total of 10 proposals been allotted to persons other than have been granted approval respondent no.6 under Forest (Conservation) Act, 1980 for diversion of forest land in the Hazira-Suvali area, Dist. Surat for different purposes.
List of approval proposals is submitted herewith.
2. Implementation of Government The Government Resolution Resolution dated 12.06.2015 dated 12.06.2015 is under implementation by the State Government.
List of proposals where forest land has been diverted after the approvals under Forest (Conversation) Act, 1980 in Hazira, Choryasi Taluka Surat District (Final Approval Granted).
Sr. Name of Survey Area Name of Proposal for User Agency Government Government
No. village No. diverte which forest land of India In- of India
d (Ha.) diverted priniciple formal/Final
Approval Approval
Order No. and order
date No.and Date
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1. Hazira 306/A-1 4.42 Diversion of 4.42 Ha M/s. Shell 8/B/27/2001- 8/B/
of Forest Land for India Pvt. FCW-3095 27/2001-
access road laying Ltd., Hazira Date: FCW-3095
Gas Pipeline Post & Port and LPG 27.09.2001 Date:
LNG Terminal in Project, Surat 22.11.2001
Hazira Road
2. Hazira 434/A-1 2.882 Diversion of 2.8820 M/s. Shell 8B/77/2003- 8B/77/2003-
Ha of Forest land for India Pvt. FCW/2668 FCW/256
laying Natural Gas Ltd., Hazira Date: Date:
Pipeline from Hazira- Port and LPG 4.12.2003 05.02.2004
Mora in Surat Dist in Project, Surat
Gujarat
3. Hazira 178.179 34 Diversion of 34.00 Ha Essar Steel 6- No.
& 434/A- R.F. land for India GJC0047/200 GJB/047/200
1 construction of Limited, 6-BHO/3118 6-BHO/1410
bypass road in favour Hazira Date: Date:
of Essar Steel Co. ltd. 17.05.2007 05.06.2009
At Hazira
4. Hazira 434/A-1 0.8505 Diversion of 0.8505 Gujarat 6- No.FCA/
Ha of R.F. Land for State GJB103/2008- 1008 (5-7) /
laying 10" diameter Petroleum BHO/1860 SF/70/K
natural gas pipeline Corporation Date:
parallel/corsing NH-8 Ltd. Hazira Date: 28.07.2009
Surat to Hazira road surat. 29.07.2008
& S. No.434/A-1 of
village Hazira for
Essar Steel super line
project in favour of
GSPC Ltd. At Hazira
5. Hazira 434/A-1 7.31 Re-diversion of Hazira LNG 6- 6-
7.3198 Ha. Of R.F. Pvt. Ltd. GJC047/2006- GJC047/200
Land for Re-routing (HLPL), BHO/3090 6-BHO/1075
of Gas pipeline and Ahmedabad Date: Date:
Water Pipeline by 24.12.2009 27.05.2014
Hazira L.N.G Private
Limited and Change
in use for laying
water pipeline by
Hazira LNG Private
Limited in Surat Dist
of Gujarat
6. Hazira 178.179 4.9324 Diversion of 4.9324 M/s Essar 6- No.GJB/
& 434/A- Ha. Of R.F. Land for Power GJB073/2009- 073/2009/
1 installation of 220 KV Transmission BHO/1105 BHO/2155
Tower line from Co. Ltd. Date: Date:
captive power plant Surat- Hazira 06.05.2009 26.08.2009
to Essar Hazira Ltd. surat
In survey
No.178,179, 434 in
favour of Essar SEZ
Hazira Ltd. At Hazira.
7. Suvali 177, 178 4.08 Diversion of 4.7976 M/s. Essar 6- No.6-
(4.7976 Ha (4.08 Ha R.F. & Power GjB032/2012- GJB032/201
) 0.7176 Ha P.F.) for Transmission BHO/438 2-BHO/244
laying of 400 K.V.D.C Co. Ltd. Date; Date:
Transmission line Surat-Hazira, 20.03.2012 06.02.2015
Gandhar (Janor Surat
NTPC) to Essar Steel
Plant in the Village
Suvali of S.No.177,
178 pt & Parallel
Surat/Bharuch road
in favour of Essar
Power Transmission
Co. Ltd. In Surat &
Bharuch Dist.
8. Hazira 434/A-1 25 Diversion of 25.00 Ha Essar Steel 6- 6-
of unclassed Forest India GJC018/2015- GJC048/201
Land for setting up Limited, BHO/731 5-BHO/048
port back up Hazira-Surat Date: Date:
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Facilities in village 13.07.2015 16.03.2021
Hazira (Suvali) Ta:
Choryasi, Dist: Surat
in Favour of Hazira
Container Freight
Station Pvt. Ltd.
9. Hazira 179 pt 27.02 Diversion of 27.02 ha Essar Steel 6- 6-GJC
reserved forest land India GJC018/2015- 048/2015-
bearing survey Limited, BHO/731 BHO/048
no.179/pt at village Hazira-Surat Date: Date:
Hazira Tal: Choryasi 13.07.2015 16.03.2021.
for construction of
raw material facilities
and utilities in favour
of Essar Steel Ltd. In
Surat District of
Gujarat
10. Hazira 179 pt 38.71 Diversion of 38.71 ha Essar Steel 6- 6-
reserved and India GJC047/2012- GJC047/201
unclassed forest Limited, BHO/792 2-BHO/049
land for setting up Hazira-surat Date: Date:
300 MW Power Plant 07.04.2014 16.03.2021
at Hazira in favour of
Essar Steel India Ltd.
In Surat District of
Gujarat
18. At this stage, we may also take notice of the following as pointed out by Mr. Abhisst Thaker, the learned counsel appearing for the writ applicant.
(i) As per the proviso to Section 8(2) of the Act the time period for Compliance can be extended by the Central Government for cogent and valid reasons. However, no order of extension has been passed and if passed, then not produced on record.
(ii) 20.76 ha land-2013 approval) Condition No.5 had not been complied; the respondent No.6 has accepted the same in para-iv. Hence, prayer to the Court for direction to comply expeditiously.
(iii) The reply of the State is silent on the slag dumping, illegal construction and encroachment on forest land as Page 27 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 alleged and the action taken by the Forest Department wherein Forest Department has also lodged an offence under the Indian Forest Act and levied fine. One officer has been suspended and many other are under inquiry and transfer. Hence, the prevention of such pollution on the part of the Respondent No.6 may have to be ensured by some undertaking or periodic reports by the Local Forest Department.
19. The State Government as well as the Union has assured this Court that the aforesaid shall also be taken into consideration and the needful shall be done in accordance with law.
20. We once again reiterate that the State Government shall ensure that forest land shall be allotted in accordance with the policy only to the industries with credentials and not indiscriminately. Only genuine proposals of the existing port-based industries at Hazira for industrial/port infrastructure, i.e, environment-friendly storage and transportation of gaseous liquid and solid raw materials and products of Hazira Industrial Area should receive priority in accordance with the policy of the State. We once again reiterate that the State Government, in order to ensure that while development must be facilitated, the conservation of forest shall never be sacrificed. In this regard, the G.R. No.FCA-1013/11-10/11/ SF-24/F dated 12.06.2015 shall be strictly implemented. The User Agency must be asked to provide double the Page 28 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022 C/WPPIL/34/2021 JUDGMENT DATED: 06/10/2021 land area to compensate the loss of forest land instead of equivalent area of land. The GR we have referred to, has been issued with a loudable object and, therefore, implementation of the same should be proper and ensured.
21. Nothing further is now required to be looked into in the present public interest litigation. In such circumstances, we close this litigation reminding the respondents of their statutory obligations and to ensure that such obligations are discharged accordingly. This application stands disposed of accordingly.
22. In view of the above, the connected civil application also does not survive and is disposed of accordingly.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) Vahid Page 29 of 29 Downloaded on : Sun Jan 16 22:00:53 IST 2022