National Green Tribunal
Dillip Kumar Samantaray vs State Of Odisharepresented By ... on 27 September, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No.103/2022/EZ
(I.A. No.223/2022/EZ)
IN THE MATTER OF:
1. Dilip Kumar Samantaray,
S/o Lingaraj Samantaray,
Aged about 35 years,
Resident of At- Bajrakot,
P.O.- Baunsagarh, P.S.- Ranapur,
District - Nayagarh,
Pin - 752026,
2. Nanda Kishor Nayak
S/o Alekh Nayak,
Aged about 64 Years,
At / P.O. - Khanda Hata,
P.S. - Jajpur Road,
Jajpur,
....Applicant(s)
Versus
1. State of Odisha
Represented by Additional Chief Secretary,
Forest and Environment, Climate Change Department,
Government of Odisha,
Secretariat Building,
Bhubaneswar - 751001,
2. District Collector, Jajpur,
At/Po - Jajpur,
Odisha - 755007,
3. Divisional Forest Officer, Cuttack,
At/Po/Dist - Ghatakula,
Nuapada,
Cuttack,
Odisha - 753010,
4. Principal Secretary,
Revenue and Disaster Management Department,
Government of Odisha,
1
Secretariat Building,
Bhubaneswar - 751001,
5. The Secretary,
Ministry of Environment, Forests & Climate Change,
Indira Paryavaran Bhawan,
Jorbagh,
New Delhi - 110003,
6. Member Secretary,
State Environment Impact Assessment Authority (SEIAA), Odisha
5RF-2/1, Acharya Vihar, Unit - IX,
Bhubaneswar,
Odisha - 751022,
7. The Tahasildar,Vyasanagar,
At/Po/PS - Jajpur Road,
Dist - Jajpur,
8. Chairman & Managing Director,
NBCC (India) Ltd.,
NBCC Bhawan, 2nd Floor,
Lodhi Road,
New Delhi - 110003,
....Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Sankar Prasad Pani, Advocate
COUNSEL FOR RESPONDENTS :
Mr. Gaurav Khanna, ASC for R-1, 2, 3, 4 & 7,
Mr. Apurba Ghosh, Advocate for R-5,
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE DR. ARUN KUMAR VERMA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- September 14th, 2023 Pronounce On:- September 27th, 2023 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes 2 JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the Applicants as well as the learned Counsel for the Respondents and perused the documents on record.
2. The allegation of the Applicants in the present Original Application is that the Kalinga Nagar Development Authority ('KNDA' for short) is making constructions on forest land in Khata No. 40, Plot No. 40, area 14 acres, Kissam Jhadi Jungle, Khata No. 40, Plot No. 50, area 16.90 acres, Kissam Jhadi Jungle, Khata No.40, Plot No. 62, area 0.83 acre, Kissam Jhadi Jungle, and Khata No. 40, Plot No. 64, area 2.24 acres, Kissam Jhadi Jungle, situated in Mouza-Mundamal, Tehsil-Vyasanagar, P.O./P.S.-Jajpur Road, District-Jajpur, Odisha.
3. It is stated that the Project in question spreads over 105.45 acres of land and includes 33.97 acres of forest land and more than 37 acres of Wetlands.
4. It is further alleged that the nature of the construction which is being carried out on these plots is food court, administrative zone, boundary wall, toilet blocks, development of temple area, parking, gate complex, overhead water tank, covered sit out space 10 children play equipment, development of water body including ghat area, bridges, pathways, pavilions, sculptures and murals, water supply and sewage.
3
5. It is also alleged that the total civil work is of an area of more than 20,000 square meters which would require Environmental Clearance but the Project Proponent has not obtained the requisite Environmental Clearance.
6. The allegation further is that the land in question is also forest land but no Forest Clearance has been obtained as envisaged under Section 2 of the Forest (Conservation) Act, 1980.
7. It is further alleged that the Project Proponent is acting in violation of the Wetlands (Conservation Management) Rules, 2010.
8. It is stated that the name of the work is 'Development of Urban Forest in KNDA area under Vyasanagar Municipality for pollution control measures, Jajpur, and also known as 'Byasa Sarobar Project/Vyasa Sarobar Project' (hereinafter referred to as 'the Project').
9. It is stated that an RTI application was filed before the Divisional Forest Officer, Cuttack, who in his reply dated 31.05.2022 has stated that no Forest Clearance has been granted in the name of Vyasa Sarobar Project.
10. It is again stated that in response to another RTI application, the Divisional Forest Officer, Cuttack, has again vide his reply dated 30.06.2022 stated that no Forest Clearance has been accorded in the name of Vyasa Sarobar Project.
11. The submission of Mr. Sankar Prasad learned Counsel for the Applicants, is that this reinforces his case that though the land in 4 question is recorded as Kissam-Jhadi Jungle but no Forest Clearance has been sought nor granted by the Divisional Forest Officer, Cuttack.
12. The learned Counsel further submitted that there is a nalla known as 'Gandanalla' which is the main natural nalla carrying water from the streams in the hills of Sukinda and this water channel has been diverted and a new channel has been dug in the Byasa Sarobar Project area for boating and recreational purposes.
13. It is alleged that the land is Kissam-Benapata and Pata and that the Pata land is a kind of Wetland and adjoining area of the Project is Sukinda Pata Wetland also shown in the Wetland Atlas. It is stated that the land in question is situated on the same footing and same topography as the said Wetland and is only divided by the Gandanalla and revenue boundaries.
14. By way of illustration, Mouza-Mundamala, Khata No.40, Plot No.41, area 21.5 Acres, Plot No.46 area 7.25 acres, Plot No.43, area 7.40 acres, Plot No.45, Area 1.25 acres, is shown as Kissam- Benapata and Plot No.76, area 0.59 acres, is shown as Kissam- Pata, having total area of 37.74 acres.
15. It is stated that during the rainy season sometimes there is severe flooding in the Gandanalla which keeps the land away from the Sukinda Pata, submerged for weeks with the result that the fertile silt gets washed by this flood-water and enriches Sukinda Pata which has made the northern side agricultural land near the banks of Gandanalla suitable for winter crops.
5
16. It is further stated that 'Bena Pata' indicates presence of Bena Grass which grows wild in low, damp sites such as - swamps and bogs and its botanical name is 'Vetiveria zizanioides'.
17. The submission of the learned Counsel for the Applicants is, therefore, that though this land is marked in the revenue records as Kissam-Benapata but due to its very character and growth of Bena grass it should be declared as Wetland and protected as such under the Wetlands (Conservation and Management) Rules, 2010.
18. The learned Counsel for the Applicants has further submitted that the Project Proponent has extracted morrum and soil randomly from different sources in Mundamal Mouza in Vyasanagar Municipality without obtaining any Environmental Clearance and, therefore, the entire project work of Byasa Sarobar Project is illegal and in violation of the Environment (Protection) Act, 1986.
19. In support of his submission that the land in dispute is Jhadi Jungle, the Applicants have filed land records of the Office of the Revenue Inspection, Kantajhari, Vyasanagar Tahasil, dated 17.01.2022 as Annexure-1 to the Original Application.
20. Photographs have also been filed along with the Original Application to support the contention of the Applicants that large scale levelling and construction activity is going on in the area in question.
21. Mr. Sankar Prasad Pani, learned Counsel further referring to Annexure-2 (page no.28) to the Original Application, which is a 6 Notice Inviting e-Tender (NIT) dated 17.11.2021, submitted that the said tender has been floated for 12 projected works for development of urban forest in Kalinganagar Development Authority (KNDA) area under Vyasanagar Municipality for pollution control measures, Jajpur District, Odisha. It is stated that these works which include Pathway, Food Court, Over-Head Tank (OHT) Tank and Pump Room etc. are not permissible under the provisions of Section 3 sub- section(2) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, (hereinafter referred to as 'The Forest Rights Act, 2006').
22. Learned Counsel for the Applicants further submitted that proviso (ii) to sub-section (2) of the Act, 2006, also requires that the clearance of such developmental projects shall be subject to the condition that the same is recommended by the Gram Sabha as per law.
23. The case of the Applicants referring to the letter of the Government of India, Ministry of Tribal Affairs, dated 18.05.2009 (page no.357 of the paper book), is that for purposes of a resolution of the Gram Sabha under the Forest Rights Act, 2006, every user agency that wants to use any forest land for any developmental project under Section 3(2) of the Act, 2006, generally makes a proposal in the appropriate form and places it before the general assembly of the concerned Gram Sabha for adopting a resolution to that effect. The quorum for adopting a resolution recommending the diversion of forest land shall be at least half the members of the Gram Sabha who should be present for adopting such a resolution. 7
24. Mr. Sankar Prasad Pani, learned Counsel submitted that as per the voter list of Mundamal Village the total adult members (voters) are 3418 as per the Electoral Roll 2022 and, therefore, quorum of 50% i.e., half of the members who should be present, would come to 1709 whereas the alleged Gram Sabha Resolution of 11.01.2022 was signed by only 53 persons of which only 33 persons are valid voters of the Mundamal Village. It is further stated that similarly in the resolution of 20.01.2022 only 64 persons signed the said resolution of which 19 are not in the voter list and 42 are in the list of which many signatures appears to be signed by only few persons. The submission, therefore, is that the resolutions approving the developmental works of Byasa Sarobar Project are in violation of the Ministry of Tribal Affairs letter dated 18.05.2009 and in violation of the provisions of proviso (ii) of Section 3 sub- section (2) of the Forest Rights Act, 2006.
25. Learned Counsel for the Applicants further submitted that the as per the letter of the Tahasildar-Vyasanagar, dated 17.08.2022, the land for purposes to be utilised for the Project is 110.74 acres including 33.97 acres of forest land whereas according to the Divisional Forest Officer, Cuttack, the land to be utilized for the Project is 105.45 acres including 33.97 acres of forest land and thus, there is also a dispute with regard to the land which is to be utilized for the aforesaid Project.
At the outset, we may state that this Tribunal only has jurisdiction to examine questions relating to acquisition of forest for 8 the Project in question, namely, whether requisite permissions have been obtained under the Forest Rights Act, 2006.
26. Learned Counsel for the Applicants further submitted that as per the layout of the Project the construction has to be spread over the entire Project area of 105 acres which means that the total area for construction would be more than 20,000 square feet which would require Environmental Clearance from the SEIAA, Odisha, but there is no such Environmental Clearance has been issued by the SEIAA, Odisha.
27. The District Collector, Jajpur, Respondent No.2, has filed counter-affidavit dated 17.08.2022 stating therein that the Project area covers Khata no. 40, Plot Nos.40, 52, 62 and 64 which are Jhadi Jungle Kissam for which permission for carrying out activities falling under 'non-forest purpose' has been taken from the Divisional Forest Officer, Cuttack. It is also stated that there is no felling of trees in the area. Land schedule for the Byasa Sarobar Project has been filed at page no. 105 of the paper book which shows Plot No.40, area 14 acres, Plot No.52 area 16.90 acres, Plot No.62, area 0.83 acres and Plot No.64, area 2.24 acres, as Kissam- Jhadi Jungle.
28. The District Collector, Jajpur, has filed document as Annexure-R-2/5 (page no.111) along with his counter-affidavit, which refers to the Divisional Forest Officer Memo No.3125 dated 18.05.2022, demarcating forest land i.e., Plot Nos. 40, 52, 62 and 64, Khata No.40, Kissam-Jhadi Jungle under Mouza-Mundamal, 9 Tahasil-Vyasanagar, over an area of 0.857 hectares as being handed over to the user agency i.e., Executive Officer, Vyasanagar Municipality under the provisions of sub-section (2) of Section 3 of the Forest Rights Act, 2006, for diversion of 0.857 hectares of Jhadi Jungle Kissam of the land for the purpose of construction of road from Sri Raghab Jew Temple to Community Centre in Village- Mundamal under Vyasanagar Municipality of Jajpur District. This letter bears the signatures of the Forest Range Officer, Jajpur Road Range, Executive Officer, Vyasanagar Municipality, Tahasildar- Vyasanagar Jajpur Road, Additional Tahasildar, Vyasanagar Jajpur Road, Revenue Inspector, Kantajhari and Vice Chairman, Vyasanagar Municipality. The application form for diversion of the forest land for this purpose dated 18.05.2022 bearing signatures of Range Officer, Jajpur Road Range dated 09.05.2022 and Divisional Forest Officer, Cuttack Forest Division, has also been filed at page no.112-113 of the paper book.
29. Similar document referring to the Divisional Forest Officer, Cuttack Forest Division Memo No.3132 dated 18.05.2022, demarcating forest land i.e., Plot No.52, Khata No.40, Kissam-Jhadi Jungle under Mouza-Mundamal, Tahasil-Vyasanagar, over an area of 0.995 hectares, being handed over to the user agency i.e., Executive Officer, Vyasanagar Municipality under the provisions of sub-section (2) of Section 3 of the Forest Rights Act, 2006, for diversion of 0.995 hectares of Jhadi Jungle Kissam of the land for the purpose of construction of Community Centre in Mundamal Village under Vyasanagar Municipality of Jajpur District, has been 10 filed as Annexure-R-2/6 (page no.115) to the counter-affidavit. This document also bears the signatures dated 23.05.2023 of Forest Range Officer, Jajpur Road Range/Dy. Range Officer O/C Jajpur Road Range, Executive Officer, Vyasanagar Municipality, Tahasildar, Vyasanagar, Additional Tahasildar, Vyasanagar Jajpur Road, Revenue Inspector, Kantajhari and Vice Chairman, Vyasanagar Municipality. The requisite form for diversion of the said land for construction of Community Centre has also been filed at page nos. 116-117 of the paper book, bearing the signatures of Range Officer, Jajpur Road Range dated 05.05.2022 and Divisional Forest Officer, Cuttack Forest Division dated 18.05.2022.
30. Another similar document referring to the Divisional Forest Officer, Cuttack Forest Division Memo No.3142 dated 18.05.2022, demarcating forest land i.e., Plot Nos.96, 97, 38 and 54, Khata No.40, Kissam-Jhadi Jungle under Mouza-Mundamal, Tahasil- Vyasanagar, over an area of 0.781 hectares, being handed over to the user agency i.e., Executive Officer, Vyasanagar Municipality under the provisions of sub-section (2) of Section 3 of the Forest Rights Act, 2006, for diversion of 0.781 hectares of Jhadi Jungle Kissam of the land for the purpose of construction of road from Dahi Sahi (Mundamal) to M.C.C. Centre, Jodabar under Vyasanagar Municipality of Jajpur District, has been filed as Annexure-R-2/7 (page no.119) to the counter-affidavit. This document also bears the signatures dated 23.05.2023 of Forest Range Officer, Jajpur Road Range/Dy. Range Officer O/C Jajpur Road Range, Executive Officer, Vyasanagar Municipality, 11 Tahasildar, Vyasanagar, Additional Tahasildar, Vyasanagar Jajpur Road, Revenue Inspector, Kantajhari and Vice Chairman, Vyasanagar Municipality. The requisite form for diversion of the said land for construction of road from Dahi Sahi (Mundamal) to M.C.C. Centre, has also been filed at page nos. 121-122 of the paper book, bearing the signatures of Range Officer, Jajpur Road Range dated 17.05.2022 and Divisional Forest Officer, Cuttack Forest Division dated 17.05.2022.
31. We are, therefore, of the view that requisite permission for the aforesaid Project and for the land in question has been sought from the Divisional Forest Officer, Cuttack, as per the provisions of the sub-section (2) of Section 3 of the Forest Rights Act, 2006.
32. The learned Counsel for the Applicants submitted that clearances under the Forest Rights Act, 2006, were sought as late as 23.05.2022 but construction had started prior to that. This claim of the Applicants stands belied since Form-B itself mentions that joint inspection was carried out and construction work had not started.
33. With regard to the allegation that there is encroachment in the water body Benapada, the said allegation has been denied by the District Collector, Jajpur, in his counter-affidavit and it is stated that the photographs filed along with the Original Application alleging illegal morrum mining is not of morrum but is of removal of ordinary earth for development of pond and canal. It is also stated that such activity is exempted from the requirement of 12 Environmental Clearance as per the MoEF&CC EIA Notification dated 15.01.2016 and para 7 (B) of EIA Notification, 2006, which states that '(B) The cases as specified in Appendix IX shall be exempted from prior environmental clearance'. The cases which are exempted from requirement of Environmental Clearance are - extraction of ordinary earth for personal use or community work in village; and construction of village ponds. Appendix IX reads as under:-
"APPENDIX -IX EXEMPTION OF CERTAIN CASES FROM REQUIREMENT OF ENVIRONMENTAL CLEARANCE The following cases shall not require prior environmental clearance, namely:-
1. Extraction of ordinary clay or sand, manually, by the Kumhars (potter) to prepare earthen pots, lamp, toys, etc. as per their customs.
2. Extraction of ordinary clay or sand, manually, by earthen tile makers who prepare earthen tiles.
3. Removal of sand deposits on agricultural field after flood by farmers.
4. Customary extraction of sand and ordinary earth from sources situated in Gram Panchayat for personal use or community work in village.
5. Community works like de-silting of village ponds or tanks, construction of village roads, ponds, bunds undertaken in Mahatama Gandhi National Rural Employment and Guarantee Schemes, other Government sponsored schemes, and community efforts.
6. Dredging and de-silting of dams, reservoirs, weirs, barrages, river, and canals for the purpose of their maintenance, upkeep and disaster management.13
7. Traditional occupational work of sand by Vanjara and Oads in Gujarat vide notification number GU/90(16)/MCR-2189(68)/5-CHH, dated the 14th February, 1990, of the Government of Gujarat.
8. Digging of well for irrigation or drinking water.
9. Digging of foundation for buildings not requiring prior environmental clearance.
10. Excavation of ordinary earth or clay for plugging of any breach caused in canal, nala, drain, water body, etc., to deal with any disaster or flood like situation upon orders of District Collector or District Magistrate.
11. Activities declared by State Government under legislations or rules as non-mining activity with concurrence of the Ministry of Environment, Forest and Climate Change, Government of India."
34. Mr. Gaurav Khanna, learned Additional Standing Counsel appearing for State Respondents, Government of Odisha, has drawn the attention of this Court to the invoice dated 31.03.2022 (Annexure-R-2/10, page no. 131 of the paper book), and submitted that there was no excavation of morrum or sand and that all the material has been purchased by the contractor, Krishna Builder, from the open market.
35. A perusal of the invoice dated 31.03.2022 would show that sand has also been purchased in addition to certain other material. The various invoices for the Project showing purchase by the contractor, Krishna Builder, have also been filed (colly) along with the counter-affidavit of the District Collector, Jajpur, showing purchase of construction material from the open market from various traders/suppliers. We, therefore, reject the contention of 14 the Applicants that there was illegal mining of morrum mineral or sand for the construction of the Project.
36. Mr. Gaurav Khanna, learned Counsel next submitted that the contention of the Applicants that the land in question is 'Pata' land and, therefore, is a Wetland, is thoroughly misleading. Learned Counsel has drawn our attention to the document filed at page no.222-223 of the paper book, which is a classification of Anabadi land (cultivated land) in the Districts in Odisha and submitted that Sl. No.1 'Patita' (fallow land) is not a water body; Sl. No.4 'Jalapata' may be a water body and further submitted that Abada Jogya Anabadi (settleable unoccupied land) has been classified as land which can be made cultivable in future and shall be recorded as 'Patita' with a description column 'Ghasa Padia' (grass field), 'Benapanjhar' (also known as 'vetiver grass'). Learned Counsel further submitted that in the same classification of land Abada Ajogya Anabadi (unoccupied land which cannot be settled) includes Nadi (river), Nala (Aqueduct), Jora (Creek), Harda (Lake) and Samudra (Sea) which are to be described as Nadibandha (river embankment), recorded as Bandha (embankment) and Nadi Bandha (river embankment) be reflected in the description column. It is, therefore, submitted that the land in question is Abada Jogya Anabadi (settleable unoccupied land) of which Benapanjhar (vetiver grass) grows and such land cannot be classified as a Wetland and as per the Applicants own showing it is filled with water during the rainy season.
15
37. Mr. Gaurav Khanna, learned Counsel has also drawn our attention to the document filed as Annexure-R-2/3 (page no.248) to the counter-affidavit of the District Collector, Jajpur, which is a Vetiver System Application Technical Reference Manual published by the Vetiver Network International, and referring to page no.254 of the paper book, under the heading 'What does the Vetiver System do and how does it work?; submitted that vetiver is described as very deep and fast growing root system which also makes vetiver very drought tolerant and highly suitable for steep slope stabilization. Learned Counsel has also referred to page no. 262 of the paper book, under the heading 'Vetiver Nursery' which describes its topography to be slightly sloping land which avoids water-logging in case of over watering and flat site is acceptable but watering must be monitored to avoid water-logging that will stunt the growth of young plantlets. Mature vetiver, however, thrives under waterlogged conditions. Learned Counsel, therefore, submitted that Benapanjhar (vetiver grass) is also very drought tolerant which means that it does not require marshy land for its sustenance and, therefore, its mere presence in the 'Pata' land would not justify classification of the said land as a Wetland.
38. Learned Counsel further submitted that Sukinda Pata is stated to be more than one kilometer away from the Project site and, therefore, it is incorrect to say that the site in question is adjacent to Sukinda Pata.
39. Rule 3 of the Wetlands (Conservation and Management) Rules, 2010 provides for regulation of the following wetlands:- 16
"(i)" wetlands categorized as Ramsar Wetlands of International Importance under the Ramsar Convention as specified in the Schedule;
(ii) wetlands in areas that are ecologically sensitive and important, such as, national parks, marine parks, sanctuaries, reserved forests, wildlife habitats, mangroves, corals, coral reefs, areas of outstanding natural beauty or historical or heritage areas and the areas rich in genetic diversity;
(iii) wetlands recognized as or lying within a UNESCO World Heritage Site;
(iv) high altitude wetlands or high altitude wetland complexes at or above an elevation of two thousand five hundred metres with an area equal to or greater than five hectares;
(v) wetlands or wetland complexes below an elevation of two thousand five hundred metres with an area equal to or greater than five hundred hectares;
(vi) any other wetland as so identified by the Authority and thereafter notified by the Central Government under the provisions of the Act for the purposes of these rules."
40. From the above discussion, we are satisfied that mere growth of vetiver grass (referred to as Benapanjhar in Odisha) does not unnecessarily lead to the inference that the land on which it is growing is sufficient to be classified as Wetland or even as a water body, therefore, the contention of the Applicants in this regard is, rejected.
41. However, since we have already held that merely because the land in question is mentioned as Benapata, in view of our discussion hereinabove, the same, in our opinion, does not qualify for classification as a Wetland within the meaning of the Wetlands 17 (Conservation and Management) Rules, 2010, or even as a water body.
42. Meeting the next allegation of the Applicants that the total projected area is more than 20,000 square meters and, therefore, there was requirement of Environmental Clearance from SEIAA, Odisha, for the Project, Mr. Gaurav Khanna, learned Counsel has referred to Annexure-R-2/2 (page no.106) to the counter-affidavit of the District Collector, Jajpur, which is the National Buildings Construction Corporation Limited (NBCC) letter dated 10.08.2022 which refers to the total built-up area of the Project as per approved DPR and Tender Document and submitted that the total area of the various works undertaken under the tender notice comes to 2172.86 square meters and that even as per the Tender Document the total area constructed is less than 20,000 square meters and, therefore, there is no requirement of obtaining Environmental Clearance for the said Project.
43. We have perused the document dated 10.08.2022 which refers to the Tender Document and the 12 projects thereunder and the total area of the same comes to 2172.86 square meters. In this view of the matter, we are satisfied that constructions undertaken in the Project in question do not fall within the MoEF&CC EIA Notification, 2006, not being more than 20,000 square meters requiring Environmental Clearance from the SEIAA, Odisha.
44. Mr. Sankar Prasad Pani, learned Counsel then submitted that construction under the Project as per Tender Document dated 18 10.08.2022 only shows the covered area but does not show the roads or pathways under the Project and if the same is also added to the Project then the area would certainly exceed 20,000 square meters and the Project Proponent would have to obtain Environmental Clearance from the SEIAA.
45. The EIA Notification, 2006, in this regard has been considered by the Hon'ble Supreme Court in 2018 (18) SCC 257; (Goel Ganga Developers India Pvt. Ltd. Vs. Union of India & Ors.). Paras 17, 18 and 19 of the judgment read as under:-
17. Indeed, the concept of FSI or non-FSI has no concern or connection with grant of EC. The same may be relevant for the purposes of building plans under municipal laws and regulations but it has no linkage or connectivity with the grant of EC. When EC is to be granted, the authority which has to grant such clearance is only required to ensure that the project does not violate environmental norms. While projects and activities, as mentioned in the notification, may be allowed to go on, the authority while granting permission should ensure that the adverse impact on the environment is kept to the minimum. Therefore, the authority granting EC may lay down conditions which the project proponent must comply with. While doing so, such authority is not concerned whether the area to be constructed is FSI area or non-FSI area. Both will have an equally deleterious effect on the environment. Construction implies usage of a lot of materials like sand, gravel, steel, glass, marble, etc., all of which will impact the environment. Merely because under the municipal laws some of this construction is excluded while calculating the FSI is no ground to exclude it while granting the EC.
Therefore, when EC is granted for a particular construction it includes both FSI and non-FSI areas. As far as environmental laws are concerned, all covered 19 construction, which is not open to the sky is to be treated as built-up area in terms of the EIA Notification dated 14- 9-2006.
18. Our attention has been drawn to the Notification dated 4-4-2011 issued by the Ministry of Environment and Forests. By means of this notification, the words of Column 5 against Item 8(a) have been replaced and substituted as under:
"The built-up area for the purpose of this Notification is defined as 'the built-up or covered area on all the floors put together including basement(s) and other service areas, which are proposed in the building/construction projects'."
This notification clearly defines "built-up area" as all constructed area including basement and service areas without any exception.
19. The learned Senior Counsel appearing for the project proponent has submitted that this notification is only prospective in nature and, therefore, will not affect the notification of 2006. On the other hand, it has been submitted by the original applicant that this is only a clarificatory notification and as such it will come into force with effect from 2006. In our opinion, it is not at all necessary to decide whether this notification is clarificatory or is in substitution of the original notification of 2006. We say this because as held by us above, there is no ambiguity with regard to the definition of "built-up area" even under the notification of 2006 and it covers all constructed area not open to the sky. The notification of 2011 only provides that the built-up area or covered area shall be the area of all floors put together including basement(s) and other service areas. We may again re- emphasise that this definition also is in consonance with the concept of grant of EC for construction as explained above and it is obvious that the concept of FSI or non-FSI area is alien to environmental laws.
20
46. In this view of the matter, the submission of the learned Counsel for the Applicants is thoroughly misconceived and is accordingly rejected.
47. With regard to the allegation of the Applicants that the Gandanalla is being diverted, the stand of the District Collector, Jajpur, in his counter-affidavit is that the Gandanalla is a seasonal water channel which carries water during the monsoon season whereas the water bodies that are being developed under the Byasa Sarobar Project are being planned as perennial water bodies. It is stated that the Project is being designed in such a manner that the water bodies in the Project area will act as tributaries to the Gandanalla whereby the natural rain water accumulated in the Project area can flow into the Gandanalla.
48. The District Collector, Jajpur, has filed further affidavit dated 01.05.2023, referring to the map which has been filed with the earlier counter-affidavit at page no.130 of the paper book, and it is stated that the map therein would itself show that the Gandanalla is outside the Project Area and there is no question of diversion or obstruction of the same. It is also stated that there is no provision for boating in the channel and boating is restricted to the pond around Sri Raghab Jew Temple and a barrage has been put in place so that the water bodies in the Project area can act as tributaries to the Gandanalla whereby natural rainwater accumulated in the Project area can be released into the Gandanalla, which even otherwise is only a seasonal channel.
21
49. Mr. Sankar Prasad Pani, learned Counsel for the Applicants, next, has referred to Annexure-12 (page no. 85) to the Original Application, which is the letter of the Government of India, Ministry of Environment & Forests, (FC Division), dated 21.03.2011, and submitted that the same provides that 'if a project involves forest as well as non forest land, work should not be started on non-forest land till approval of the Central Government for release of forest land under the Act has been given.'
50. This letter refers to para 4.4 of the Guideline on Forest (Conservation) Act, 1980, as quoted in the letter and reads as under:-
"4.4 Project involving Forest as well as Non-forest Lands Some projects involve use of forest land as well as non-forest land. State Governments/project authorities sometimes start work on non-forest land in anticipation of the approval of the Central Government for release of the forest lands required for the projects. Though the provisions of the Act may not have technically been violated by starting of work on non-forest lands, expenditure incurred on works on non-forest lands may prove to be infructuous if diversion of forest land involved is not approved. It has, therefore, been decided that if a project involves forest as well as non-forest and, work should not be started on non-forest land till approval of the Central Government for release of forest land under the Act has been given."
51. A perusal of this letter shows that the concern of the Government is that though provisions of the Act may not have technically been violated by starting of work on non-forest land, 22 expenditure incurred on works on non-forest land may prove to be infructuous if diversion of forest land involved is ultimately not approved. In our opinion, the concern of the Government in this regard is with regard to the expenditure incurred in such works being rendered infructuous if diversion of forest land involved is not approved. In the present case we find that the Divisional Forest Officer, Cuttack, has already approved handing over of the land in question to the Vyasanagar Municipality for the projects undertaken in the present case as per the provisions of the Forest Rights Act, 2006. Therefore, in our opinion, the letter dated 21.03.2011 has no application to the facts of the present case.
52. We may also observe that the Forest Rights Act, 2006, overrides the provisions of the Forest (Conservation) Act, 1980. Sub-section (2) of Section 3 of the Act, 2006, states that 'notwithstanding anything contained in the Forest (Conservation) Act, 1980, the Central Government shall provide for diversion of forest land for the following facilities managed by the Government which involve felling of trees not exceeding seventy five trees per hectares, namely:-
(a) schools;
(b) dispensary or hospital;
(c) anganwadis;
(d) fair price shops;
(e) electric and telecommunication lines;
(f) tanks and other minor water bodies;
(g) drinking water supply and water pipelines;23
(h) water or rain water harvesting structures;
(i) minor irrigation canals;
(j) non-conventional source of energy;
(k) skill upgradation or vocational training centres;
(l) roads; and
(m) community centres:
53. Mr. Gaurav Khanna, learned Counsel further replying to the next allegation of the Applicants that Food Court and Administrative Building are not contemplated in sub-section (2) of Section 3 of the Forest Rights Act, 2006, and, therefore, construction of the same or transfer of forest land for the said purpose was illegal, submitted that the project for construction of food plaza has already been given up and shelved vide letter dated 31.12.2021 (Annexure-R-2/3, page no.108 of the paper book), which provides for revising of DPR by providing a Community Centre in place of Food Plaza and Administrative Building.
54. Mr. Sankar Prasad Pani, learned Counsel for the Applicants further submitted that this is an afterthought and that the intention of the Project Proponent is to actually have a Food Plaza and Administrative Building under the garb of Community Centre.
55. We are not inclined to accept the submission of the learned Counsel for the reason that if arrangement for food is made within the Community Centre it would ultimately be for the benefit of the residents of the area as also visitors to the project site who will come there for purposes of recreation. It is the duty of the 24 Government in such cases to provide for basic amenities such as - food, water and toilet facilities, as it would be for the benefit of the community and within the meaning of the Act, 2006. It does not imply nor is there any inference to that effect that use of such eating joints by outsiders visiting the urban forest areas being so developed would be to the ouster of the forest rights of the original inhabitants of the area in question. Therefore, the apprehension of the Applicants in this regard is totally misconceived and is rejected. However, as stated by the State Respondents, proposal for food court and administrative building has been shelved vide letter dated 31.12.2021.
56. Mr. Sankar Prasad Pani, learned Counsel next submitted that the quorum for holding resolution of Gram Sabha was not as per the Government of India guidelines letter dated 18.05.2009 for purposes of satisfaction of Clause (ii) of the proviso to sub-section (2) of Section 3 of the Forest Rights Act, 2006. Referring to the letter of the Government of India, Ministry of Tribal Affairs dated 18.05.2009 learned Counsel submitted that for purposes of adopting a resolution by the Gram Sabha for use of any forest land for any developmental project enumerated in sub-section (2) of Section 3 of the Act, the quorum should be at least half the members of the Gram Sabha who should be present at such meeting.
57. Learned Counsel further submitted that the Gram Sabha in question consists of 3418 adult members as per the Electoral Roll of 2022 and, therefore, the quorum for purposes of resolution of the 25 Gram Sabha should be not less than 1709 adult members present. Learned Counsel also submitted that in the resolution dated 11.01.2022 only 33 persons were present and similarly the resolution of 20.01.2022 was signed by only 64 persons of which 19 are not in voter list.
58. Mr. Gaurav Khanna, learned Counsel for the State Respondents, on the other hand, drew out attention to I.A. No. 223/2022/EZ filed on affidavit and to the Office Memorandum dated 05.03.2015 (page no. 362 of the paper book) issued by the Government of India, Ministry of Tribal Affairs, annexure thereto and submitted that it was clarified by the Government that all references to the term of 'Gram Sabha' in the Forest Rights Act and Forest Rights Rules, Guidelines and clarifications etc. shall be understood to mean the 'Wards Committee' if constituted under Article 243S of the Constitution of India and if not constituted, the assembly of adult members of the settlement where such a habitation or settlement has continued to exist. The relevant extract in para 3.1 of the Office Memorandum dated 05.03.2015 reads as under:-
"..................xxx....................xxx.................xxx.................... 3.1 On forest rights in municipal areas, all references to the term 'Gram Sabha' in the FRA, the FR Rules, the Guidelines, clarification etc. shall be understood to mean the Wards Committee if constituted under Article 243S of the Constitution and if not constituted, the assembly of adult residents of the settlement where such a habitation or settlement has continued to exist and is clearly identifiable; and if such settlement is not clearly 26 identifiable, the Mohalla Sabha or Pada or Tola, whichever is smaller;
Provided that in Nagar Panchayats or other transitional areas, the Gram Sabha shall comprise the assembly of adult residents of the erstwhile pada/tola/hemlet/habitation/traditional village."
59. Learned Counsel further submitted that the Byasa Sarobar Project is being carried out in Mundamal Village which falls under the Vyasanagar Municipality area consisting of three wards viz., Ward No.24, Ward No.25 and Ward No.26. It is stated that there is no Gram Sabha in the area and all references under the Forest Rights Act, 2006, to 'Gram Sabha' shall be understood to mean 'Wards Committee' and in the absence of Ward Committee reference to Gram Sabha shall be understood to mean 'assembly of adult members of the settlement'.
60. It is further stated in the affidavit that the Municipality of Vyasangar was dissolved on 29.09.2018 and since in view of the provisions of sub-section (6) of Section 57-A of the Odisha Municipal Act, 1950, the term of office of the Wards Committee shall be coterminous with the term of office of the Municipality as such from 29.09.2018 onwards there is no Wards Committee for the said wards. Section 57-A (6) of the Act, 1950, reads as under:-
"57-A (6) The term of office of the Ward Committee shall be coterminous with the term of office of the Municipality."
61. Gram Sabha has been defined in Section 2 (g) of the Forest Rights Act, 2006, which reads as under:-
27
"g "Gram Sabha" means a village assembly which shall consist of all adult members of a village and in case of States having no Panchayats, Padas, Tolas and other traditional village institutions and elected village committees, with full and unrestricted participation of women;"
62. The Government of India, Ministry of Tribal Affairs Office Memorandum dated 05.03.2015 (page no 362 of the paper book) in para 3 has categorized municipal areas in urban areas which reads as under:-
"3. Part IX-A (The Municipalities) of the Constitution of India particularly Article 243Q, requires that every State shall constitute the following categories of municipal areas in urban areas:
a. Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
b. Municipal Council (which could also have different nomenclature) for a smaller urban area; c. Municipal Corporation (again, by whatever name called), for a larger urban area.'
63. In the present case, we find that though three resolutions mention the resolution to be of the Gram Sabha but undisputedly the Gram Sabha itself does not exist and the land in question falls within the Vyasanagar Municipality, though in Mundamal Village. Within the meaning of the Office Memorandum of 2015, we find that the land in question, whether it is a small urban area referred to as Municipal Council or a larger urban area referred to as Municipal Corporation. In such circumstances, item no.3.1 of the Office Memorandum dated 05.03.2015, all references to the term 28 Gram Sabha in the Forest Rights Act, 2006, rules, guidelines and clarifications thereunder, municipal areas shall be understood to mean Wards Committee if constituted under Article 243S of the Constitution and if not constituted, the assembly of adult residents of the settlement where such a habitation or settlement has continued to exist and is clearly identifiable.
64. In the present case we also find that since the Ward Committee was not constituted at the relevant point of time in terms of the Government of India, Ministry of Tribal Affairs, Office Memorandum dated 05.03.2015, recommendations for making the above mentioned facilities were sought from the assembly of adult members of the area which would be seen from the resolutions dated 11.01.2022 (page no.331 of the paper book), 20.01.2022 (page no.316 of the paper book) and 28.01.2022 (page no.301 of the paper book).
65. A perusal of the Office Memorandum dated 05.03.2015 and para 3.1 thereof in categorical terms states that if the Wards Committee constituted under Article 243S of the Constitution, if not constituted, the Gram Sabha shall be the assembly of adult residents of the settlement where such habitation or settlement has continued to exist. This notification does not mention that a quorum of half the members of the Gram Sabha should be present for adopting a resolution recommending the diversion of forest land. In the present case the resolutions have been passed by at least 2/3 majority of the adult members of the Gram Sabha present and, 29 therefore, in our opinion, the resolutions dated 11.01.2022, 20.01.2022 and 28.01.2022 cannot be said to be illegal.
66. Mr. Sankar Prasad Pani, learned Counsel next submitted that the Executive Officer, Vyasanagar Municipality had presided over the Resolutions of the Gram Sabha though he was not even a resident of village Mundamal.
67. A perusal of the Resolutions dated 11.01.2022, 20.01.2022 and 28.01.2022 would show that in each of the said Resolutions the members of the Gram Sabha themselves had selected the Executive Officer, Vyasanagar Municipality to preside over the Gram Sabha and, therefore, in the circumstances, the Resolutions of the Gram Sabha cannot be said to be illegal of invalid.
68. Mr. Sankar Prasad Pani, learned Counsel for the Applicants next submitted that the Project for purposes of resolution was not initiated by the user agency.
69. In the present case we find that the user agency is the Government itself as all the schemes under sub-section (2) of Section 3 of the Forest Rights Act, 2006, particularly setting up of Community Centres need to be managed by the Government and, therefore, it goes without saying that such projects need to be proposed by the Government and the allegation of the learned Counsel for the Applicants to the contrary is, therefore, rejected.
70. Mr. Sankar Prasad Pani, learned Counsel next submitted that one of the members who is shown to have signed the resolution, 30 namely, Somendra Rout, Ex. Councillor, Vyasanagar Municipality, has actually not signed the resolutions of 28.01.2022, 20.01.2022 or 11.01.2022, though the name of Soumendra Rout has been written in English in the copy of the resolutions which has been filed with the affidavit of the Divisional Forest Officer, Cuttack. However, even assuming that said Sri Soumendra Rout had not signed the resolutions, the same would not invalidate the resolutions itself if otherwise 2/3 majority of the members present have signed the resolutions.
71. Mr. Gaurav Khanna, learned Counsel for the State Respondents further submitted that the resolution of the Gram Sabha dated 28.01.2022 was taken up for proposal for construction of road from Dahi Sahi to M.C.C Centre, Jodabar, and included Plot No.54, Khata No.40 which is marked as 'Jhadi Jungle' because Plot No.54 was within the Project whereas the Plot Nos.96, 97 and 38 were outside the Project and part of the external road but for purposes of the resolution all the plots were clubbed together. It is not the case of the Applicants also that Plot Nos. 96, 97 and 38 were within the Project.
72. As per the State Respondents under the Byasa Sarobar Project there are three facilities which are being constructed on forest land namely, pathway, community centre and the outside road and for each of these proposals resolutions have been obtained from the Gram Sabha viz. the Gram Sabha Resolution of 11.01.2022 is with regard to the proposal for construction of Community Centre in Mundamal, the Gram Sabha Resolution of 20.01.2022 is with 31 regard to the proposal for construction of road from Shree Raghab Jew Temple to the Community Centre, and the Gram Sabha Resolution of 28.01.2022 is with regard to the proposal for construction of road from Dahi Sahi to M.C.C Centre, Jodabar, respectively. The user agency is the Executive Officer, Vyasanagar Municipality and the Municipality being 'State' within the meaning of Article 12 of the Constitution of India, we do not find any illegality in the proposal of the three facilities being initiated by the Executive Officer of the Vyasanagar Municipality.
73. Therefore, on a conspectus of facts and law and the overwhelming documents on record, we do not find any merit in the present Original Application and the same is accordingly dismissed.
74. Interim order, if any, stands vacated.
75. I.A.s, if any, stand disposed of accordingly.
76. There shall be no order as to costs.
........................................
B. AMIT STHALEKAR, JM ................................................... DR. ARUN KUMAR VERMA, EM Kolkata, September 27th, 2023, Original Application No.103/2022/EZ (I.A. No.223/2022/EZ) AK 32