Jharkhand High Court
M/S Balaji Enterprises vs The State Of Jharkhand on 18 February, 2022
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 557 of 2020
M/s Balaji Enterprises, represented through one of its partners, Jitendra Yadav,
Koderma ..... Petitioner
Versus
1. The State of Jharkhand, through the Secretary, Drinking Water & Sanitation
Department, Ranchi
2. The Deputy Commissioner, Giridih
3. The District Mining Officer, Giridih
4. The Assistant Mining Officer, Giridih
5. The Conservator of Forest, Regional Circle, Hazaribagh
6. The Divisional Forest Officer, East Forest Division, Hazaribagh
7. The Principal Secretary, Jharkhand State Pollution Control Board, Ranchi
8. The Member Secretary, State Level Environment Impact Assessment
Authority, Ranchi ..... Respondents
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CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner: Ms. Ritu Kumar
Mr. Ashok Kumar Sinha
For Respondent Nos.1-6: Mr. A. K. Thakur, A.C to A.A.G-III
For Respondent No.7: Ms. Richa Sanchita
For Respondent No.8: Mr. Bhanu Kumar
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08/18.02.2022 The present writ petition has been preferred for quashing the order as
contained in letter No. 499 dated 01.10.2019 passed by the respondent No.8 whereby the Environmental Clearance (EC) granted to the petitioner for stone mining over the land appertaining to Khata No. 23, Plot No. 98(P), Mouza-Kali Chattan, P.S-Bagodar, District-Giridih, measuring an area of 11.04 Acres has been withdrawn. Further prayer has been made for allowing the petitioner to continue with the said mining operation.
2. The factual background of the case, as stated in the writ petition, is that the petitioner had applied for getting lease of stone mining over the said land whereupon the respondent No.4 vide letter No. 1991/M dated 27.06.2013, asked the respondent No.6 about the distance of the said land from the notified forest boundary. The respondent No.6 vide letter No. 3069 dated 24.10.2013, informed the respondent No.4 that the said land was out of the notified forest area and the distance of the proposed site was more than 400 Meters from the forest boundary. Thereafter, the petitioner was given Consent to Operate under Section 25 of the Water (Prevention & Control of Pollution) Act, 1974 and under Section 21 of Air (Prevention & Control of Pollution) Act, 1981. The State Level 2 Environment Impact Assessment Authority (SEIAA), Jharkhand vide letter dated 09.09.2015, granted EC to the project of the petitioner. Thereafter, the petitioner was granted mining lease by the respondent No.2 for a period of 10 years from 15.10.2015 to 14.10.2025 through registered sale deed dated 03.11.2015 and then the petitioner was operating stone mining. In the meantime, the respondent No.8 vide letter No. 318 dated 19.07.2019, issued a show cause notice to the petitioner for furnishing forged letter No. 3069 dated 24.10.2013 which was purported to have been issued by the respondent No.6. The petitioner submitted reply to the same vide letter dated 28.07.2019 stating that it had no role in issuance of the said letter, rather the same was issued from the office of the respondent No.6 on the request of the respondent No.4 which would be evident from the dispatch register of the said office. However, the respondent No.8 vide impugned letter No. 499 dated 01.10.2019 has withdrawn the EC granted to the petitioner. Hence, the present writ petition.
3. Learned counsel for the petitioner submits that one Kumar Roshan, Advocate, Civil Court, Koderma had filed an application under the Right to Information Act, 2005 in the office of the respondent No.6 for furnishing details of the letter issued to the respondent No.4 concerning the stone mines of the petitioner whereupon photo copy of the relevant portion of the dispatch register along with the reply of the said application was provided, which shows that letter No. 3069 was properly issued in favour of the respondent No.4. It is further submitted that no minimum distance from the forest area has been fixed for mining of stones, rather a minimum distance of 250 meters is required for issuance of Consent to Operate by the Jharkhand State Pollution Control Board (JSPCB) for operating stone crusher units. The respondents are completely misconceived in alleging that the said letter was fraudulently issued at the instance of the petitioner, rather the same was an internal communication between the Mining Department and the Forest Department. As per letter No. 4175 dated 20.08.1997, issued by the Principal Chief Conservator of Forest, Bihar, the mining work should not be done within 7.5 Meters from the forest 3 area whereas the distance of the mining area of the petitioner is more than the said limit.
4. Learned counsel appearing on behalf of the respondent-SEIAA submits that the EC was granted to the petitioner on the basis of the documents submitted by it which included letter No. 3069 dated 24.10.2013 issued by the respondent No.6 regarding the distance between the proposed mining area and the notified forest boundary. It is further submitted that the respondent No.6 vide letter No. 2305 dated 09.07.2019 informed the respondent No.8 that the said project proponent had obtained the EC on the basis of a forged letter of the then Divisional Forest Officer, East Forest Division, Hazaribagh regarding the distance of the project site from the notified forest area and hence the same should be withdrawn with immediate effect. The matter regarding the said forged letter was verified from the erstwhile Divisional Forest Officer, Hazaribagh (then posted as the Conservator of Forest, Gumla), who vide memo No. 3208 dated 17.11.2017, confirmed that the signature on the said letter regarding the distance of mining lease area from the notified forest boundary was forged. The respondent No.6 thereafter repeatedly requested through several letters for withdrawal of EC with immediate effect. The respondent No.6 vide letter No. 2993 dated 24.08.2019, informed the respondent No.8 that the actual distance of the said project of the petitioner from the notified forest land was 96 Meters and the land was shown as 'Jungle Jhari' in government records which required forest clearance under the Forest Conservation Act, 1980 (hereinafter referred to as 'the Act, 1980') for non-forestry purpose. The petitioner had obtained the EC by not only violating the distance requirement from the forest area, but also violating the provisions of the Act, 1980. The petitioner also violated the direction as contained in Clause (2) of specific condition of EC by concealing the actual facts which is sufficient ground for cancellation of the EC. The Hon'ble Supreme Court in the case of Bhopal Gas Peedit Mahila Udyog Sangathan & Ors. Vs. Union of India & Ors. reported in 2012 (8) SCC 326, has held that all the matters instituted after coming into force of the National Green 4 Tribunal Act, 2010 (hereinafter referred to as 'the Act, 2010') and which are covered under the provisions of the Act, 2010 and/or Schedule 1 to the Act, 2010 shall stand transferred and can be instituted only before the NGT. This will help in expeditious disposal of the environmental matters.
5. Learned counsel for the State-respondents submits that the respondent No.8 had withdrawn the EC granted in favour of the petitioner vide letter No. 499 dated 01.10.2019 on the request of the complaint of the respondent No.6 and the said fact was communicated to the respondent No.4. It is further submitted that the respondent No.4 had issued letter No. 932/M dated 16.10.2019 to the petitioner to immediately stop mining operation including dispatch of the minerals from the lease hold area and to file show cause reply. Rule 5 of the Jharkhand Minor Mineral Concession Rules, 2004 makes it mandatory for the project proponent to obtain EC for mining lease and since the EC of the petitioner has been cancelled, it has been stopped from carrying on mining operation.
6. Learned counsel for the State while referring to the counter affidavit filed on behalf of the respondent No.6, submits that the respondent No.4 vide letter dated 11.05.2012, had requested the Circle Officer, Bagodar to submit enquiry report on various points in order to invite applications for granting mining lease for the land in question whereupon the report sent from the office of the Circle Officer, Bagodar vide letter No. 312 dated 23.05.2012, was received in the office of the respondent No.4 on 23.08.2015 stating that as per Survey Khatian, the said land was of 'Gairmajarua Khas Khata' and the nature of the same was recorded as 'Gairmajurua Tanr'. It was also mentioned in the said report that the land in question was beyond the Notified Schedule Area and not under the category of forest land. The said land was 'Parti Tand' and it was not recorded as 'Jungle Jhar' in Survey Khatian. The respondent No.4 accepted the said enquiry report without raising any question regarding inordinate delay in dispatching the same. Apart from the said letter, no other evidence such as note sheet and office copy of the said letter was found in the office of the Circle 5 Officer Bagodar. The respondent No.4 had also written to the respondent No.6 for submitting enquiry report regarding the distance of the said land from the notified forest area as well as the nature of the same. In response to the said letter, a report containing false fact regarding the distance of the said land from the notified forest area was prepared in connivance with the staff of the office of the respondent No.6 showing genuine dispatch No. 3069 dated 24.10.2013, but with forged signature of the respondent No.6. It was stated in the said report that the distance of the mining area from the forest area was 400 Meters whereas the actual distance of the leased land from the forest area is only 96 Meters. Apart from receipt of the said letter, no other document such as note sheet and office copy of the said letter was found in the office of the respondent No.6. The petitioner was able to obtain the EC on the basis of the said forged document. One Mahesh Jha filed an application in the office of the respondent No.6 under the Right to Information Act asking the genuinity of letter No. 3069 dated 24.10.2013 whereafter it was found that the said letter contained false facts and forged signature of the then Divisional Forest Officer, East Forest Division, Hazaribagh. Said Mahesh Jha also asked from the erstwhile Divisional Forest Officer, East Forest Division, Hazaribagh (Shri Ajit Kumar Singh) to verify his signature by enclosing a photo copy of letter No. 3069 dated 24.10.2013. Ajit Kr. Singh, the erstwhile Divisional Forest Officer, Hazaribagh (presently posted as the Conservator of Forest, Gumla Division) vide letter No. 3208 dated 17.11.2017, informed the applicant Mahesh Jha with a copy to the respondent No.6 and the other authorities that his signature on letter No. 3069 dated 24.10.2013 appeared to be forged. The respondent No.6 having come to know about the said fraud, repeatedly requested the respondent Nos. 2 & 3 to cancel the mining lease of the petitioner. The respondent No.6 vide letter No. 2305 dated 09.07.2019, also requested the respondent No.8 to cancel the EC of the petitioner and consequently the impugned order dated 01.10.2019 has been passed. As per the guidelines of the Jharkhand State Pollution Control Board contained in notification No. B-12 dated 07.12.2015, a minimum distance of 250 6 Meters from the notified and demarcated forest/forest land is required for stone mining. The date of application for granting mining lease to the petitioner was 27.08.2013, however, the respondent No.4 had sought enquiry report from the Circle Officer, Bagodar and the respondent No.6 much prior to the mining lease application submitted by the petitioner and thus the whole process of granting mining lease to the petitioner was illegal.
7. Heard learned counsel for the parties and perused the materials available on record. The petitioner has challenged the letter dated 01.10.2019 issued by the respondent No.8 whereby the EC granted to it for mining lease over the said land has been cancelled on the ground that the same was obtained by submitting a forged document.
8. The thrust of the argument of learned counsel for the petitioner is that the petitioner had no role in issuance of letter No. 3069 dated 24.10.2013 by the then Divisional Forest Officer, Hazaribagh pursuant to the letter of the respondent No.4. Moreover, the said letter was issued under genuine dispatch which confirms issuance of the same from the office of the respondent No.6.
9. On the other hand, learned counsel for all the respondents have vehemently argued that the petitioner had presented letter No. 3069 dated 24.10.2013 purported to have been issued by the then Divisional Forest Officer, East Forest Division, Hazaribagh regarding the fact that the proposed mining area was beyond a distance of 400 Meters from the notified forest boundary and relying on the said fact, the EC was granted to the petitioner. Subsequently, it surfaced that the said letter was issued under forged signature of the then Divisional Forest Officer, East Forest Division, Hazaribagh, whereas the factual position was that the leased area of the petitioner is only 96 Meters from the forest boundary. The then Divisional Forest Officer, East Forest Division, Hazaribagh also clarified that he had not put his signature on the said letter and thus the same was forged.
10. This Court is of the view that since the then Divisional Forest Officer, Hazaribagh had himself admitted that he had not put his signature on the letter 7 dated 24.10.2013, the fact that the same was issued under genuine dispatch, cannot be a ground to treat the same as genuine. The petitioner's claim that it had no role in issuance of the said letter also does not improve its case since it had presented the said letter before the SEIAA/State Expert Appraisal Committee (SEAC) which had considered the fact stated in the said letter while issuing the EC to the petitioner. Since the said letter was subsequently found to be forged, the SEIAA was competent enough to cancel the EC granted to the petitioner.
11. Moreover, the fact stated in the letter dated 24.10.2013 has also been disputed by the respondent No.6 in the counter affidavit stating that the project of the petitioner falls within 96 Meters from the notified forest boundary which has not been denied by the petitioner by filing rejoinder affidavit, rather it has taken a stand that no minimum distance from the forest boundary has been fixed for stone mining. In support of the said contention, the petitioner has relied upon letter dated 02.01.2020 issued by the Member Secretary, Jharkhand State Pollution Control Board, Ranchi. I have perused the said letter mentioning that there is a guideline for Consent to Establish (CTE) wherein the minimum distance for stone crusher from the forest boundary is 250 Meters. It has been further mentioned in the said letter that in the guidelines, standard has not been fixed for the distance from the forest boundary, so far the stone mines is concerned, as the Consent to Establish/Consent to Operate, is issued to stone mines only after obtaining the EC which is issued by the SEIAA/District Level Environment Impact Assessment Authority (DEIAA).
12. I have also perused the EC granted to the petitioner for running its project wherein under Clause 8 of the specific condition, it has been provided that no mining shall be undertaken in the forest area without obtaining requisite prior forest clearance and minimum distance shall be maintained from Reserved/Protected Forest as stipulated in SEIAA Guidelines.
13. Moreover, Annexure-R-8/I to the counter affidavit filed on behalf of the respondent No.8, which is a copy of the decision taken by SEIAA, Jharkhand in 8 its meeting dated 07.05.2013, provides a standard for grant of EC to the mining operation of minor mineral within area of less than 5 Hectares of land. In the said meeting, it was resolved under Clause 5(7) that the distance for establishment of minor minerals project shall not be less than 250 Meters from the Reserved/Protected Forest.
14. Thus, I do not find any substance in the argument of learned counsel for the petitioner that the minimum distance from the forest area for stone mining has not been fixed. Learned counsel for the petitioner has also invited attention of this Court to the letter dated 20.08.1997 issued by the Chief Conservator of Forest, Bihar wherein it has been stated that 'NOC' for the mining lease may be granted to the project which is situated at least 7.5 Meters away from the forest boundary and if the said letter is made applicable to the present project, the same would be beyond the said limit. I am of the considered view that the said letter will not be applicable in the case of the petitioner as the same was issued by the Forest Department for grant of 'NOC' whereas the issue involved in the present case is with regard to cancellation of the EC by SEIAA, which has already made the guidelines for grant of the same specifically fixing the minimum distance between the proposed land for mining operation and the forest boundary as 250 Meters.
15. In view of the aforesaid facts and circumstances, I find no infirmity in the impugned decision of the respondent No.8 withdrawing the EC granted to the petitioner for stone mining over the said land.
16. The present writ petition being devoid of merit is, accordingly, dismissed.
Satish/A.F.R (RAJESH SHANKAR, J)