National Green Tribunal
Jaimanglam Jabali Foundation vs The Secretary on 20 March, 2020
Item Nos. 01 &02(Through VC-Bhopal)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 67/2015 (CZ)
With
Original Application No. 41/2018 (CZ)
Raman Khandelwal Applicant(s)
Versus
State of M.P. & Ors. Respondent(s)
And
Jaimanglam Jabali Foundation Applicant(s)
Versus
State of M.P. & Ors. Respondent(s)
Date of hearing: 20.03.2020
CORAM:
HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Applicant(s): Mr. C.P. Singh, Advocate
Mr. Ram Chandra, Advocate
Mr. Rishi Jaiswal, Advocate
Mr. Vikrant Singh, Advocate
Mr. Ajay Awasthi, Advocate
For Respondent (s): Mr. Sachin K. Verma,
Advocate
Ms. Nikita Delouri, Advocate
Mr. Dharamvir Sharma,
Advocate
Mr. V. K. Shukla, Mr. Sugam
Misra and Mr. Veerendra Kumar,
Advocates
Mr. Shantanoo Saxena, Advocate
1
ORDER
1. Original Application No. 67/2015 has been filed by Shri Raman Khandelwal, Shri Deepak Gupta and Shri Sharad Singh Kumhre against State of Madhya Pradesh and its Authorities, State Environment Impact Assessment, Jabalpur Municipal Corporation, the Commandant, 6th Battalion, Special Armed Forces Jabalpur, M.P, State Pollution Control Board, Smt Lachi Yadav, Smt Vidyawati, Smt Hansa Devi and Smt Kalawati Sahoo. The another Original Application No. 41/2018 has been filed by Jaimanglam Jabali Foundation against State of Madhya Pradesh or its Authorities, State Environment Impact Assessment, the Commandant, 6th Battalion, Special Armed Forces Jabalpur, Project Engineer, M.P Police Housing & Infrastructure Development Corporation, State Pollution Control Board, M/s. H.K Infracon Pvt. Ltd and Municipal Corporation, Jabalpur.
2. Both these original applications have been filed for preservation and protection of the area known as Bajrang Nagar Pahadi in village Karondi in District Jabalpur, Madhya Pradesh. It has been submitted that this Pahadi is being destroyed by mining and excavation of the hill top for raising construction and other 2 developmental activities. It is also submitted that Bajrang Nagar Pahadi is covered with various types of flora and fauna including medical shrubs and herbs and trees like Amla, Bamboo, Bal, Tendu, Chironji, Neem etc. The Respondent no. 8-Smt Lachi Yadav w/o Mewa Lal, House No. 842, Champa Nagar, Manegaon, Ranjhi, Jabalpur, Madhya Pradesh in Original Application No. 67 of 2015 was granted lease for mining of 3000 cubic meter of stones in an area of 10000 Sq Feet in Khasra Nos. 9/23 in Patwar Halka No.2, Village Karondi, Tehsil and District Jabalpur for making boundary wall and further she was granted permission for mining stones for construction of residential house for her own. Subsequently, the hill was systematically excavated by using heavy machinery. The parties have filed Google images from November 2001 to 2016 of the area. The image of 2001 shows the entire area being covered with natural forest growth which is not described as forest in revenue records. The entire Bajrang Nagar Pahadi is surrounded on all sides by urban township of the city of Jabalpur and also forms the part of the catchment area for the Gokulpur Talab. Initially the consent was granted for excavation for construction of boundary wall thereafter the Respondent sought quarry license and mining operations for masonry stone was carried out. 3 Subsequently, the area was sought to be developed into residential plots to be sold by the Respondent No. 7- S.N. Dubey, Proprietor M/s Maharaja constructions, 643, Narsingh Ward, Amanpur, Madan Mahal, Jabalpur, Madhya Pradesh in Original Application No. 67 of 2015. The photographs have also been annexed to show the extent of excavation work that has been carried out. While it is the contention on the part of the Respondent no. 7 that the work has been conducted in accordance with the permission granted, the Applicant on the other hand has raised issues of environment including destruction of Bajrang Nagar Pahadi having natural forest growth on account of activity of Respondent no. 7 and other activities including the firing range and the establishment of Police line as mentioned in the application in the area in question and also the issue with regard to the construction obstructing the flow of water into the Goklpur Talab.
3. On 19.10.2016, Dr. G.K. Pandey, former Expert Member of the National Green Tribunal was appointed as a Court Commissioner and he was requested to look into the matter and submit his opinion with regard to issues pertaining to following:
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"(a) The need for conservation of the Bajrang Nagar Pahadi with reference to the protection of the green cover as also its function as the catchment area for the Gokulpura Talab.
(b) Whether the ongoing project of the Respondent no. 7 in its existing form as permitted should be allowed to continue if not whether any modification to the existing project should be advised if so on which modified terms and conditions the project may be allowed to continue or the said projects should not be allowed to take place and the restoration of the Bajrang Nagar Pahadi be ordered to be carried out.
(c) The fee of the expert is assessed as Rs.
50,000/- which shall be deposited by the Respondent no. 7 within 7 days with the Registry including travel expense by Air from Delhi to Jabalpur and lodging and boarding expense at Narmada Jakson Hotel at Jabalpur. "
4. The Court Commissioner submitted his report on 08.12.2016 after visiting the site on 21.11.2016. The photographs taken during the visit was also annexed with the report. The report reads as under:
"it is quite clear that as of today except for bushes and shrubs, no grown trees are visible. However, a single big tree is visible in the photograph taken on 21st of November 2016 (Annexure 1 (b)/3) which is located outside the boundary of the site in question (Khasara No.9/23). As mining work was stopped by the interim order of Hon'ble NGT, it was seen that scattered bushes have come up even in the areas which have been excavated for extraction of stones and murram and 5 developing the site for residential plots (Photo no.1(b)/1) .The areas of this Pahadi which have not been much disturbed so far have got more denser bushes and shrubs. The site in question i,e., Bajrang Nagar Pahadi, as visible from the side of Raksha karmachari Colony is comparatively more greener with bushes, shrubs and small size plants( photo no.1(a)/11 &1/11(b)). Dense greenery which is visible from the side of Raksha Karmachari Colony towards Gokulpur Talab is having depressions on this side of the Pahadi in question which has not yet been excavated by the developer (Photo no. 1(b)/6). Earlier Petitioner, Shri Sonakar, who was present during the site visit on Nov,21,2016, is a resident of Raksha karmachari Colony, mentioned that there use to be big trees such as Neem, Mango etc., which were cut in the past for which no documents/photos were given during the site visit. However, later he gave us photographs of the site in question which indicates that only shrubs , bushes and few small plants exists( Annexure-18 ).He stressed the need for preservation of the Pahadi which is the only open and green space left in this area. However, the President of the Raksha Karmchari Colony, who was present during the site visit, said that he has no objection for the development of the area but has reservations in providing road access from their Colony side.
The geological formation of the site in question is of hard rock as clearly visible by the stones / boulders scattered around after excavations .As such raising of trees in this site may not be an easy task. However, if human interference is removed and efforts are made, the greenery may be raised even in this rocky terrain which will certainly improve the ecology and aesthetics of the area.6
Regarding the issue whether this part of Pahadi is in the catchment area of Gokulpur Talab ,it is to be mentioned here that the area of Pahadi towards Gokulpur Talab that is on the South -West side of Raksha Karmchari Colony is clearly forming part of the catchment area as depressions and slopes are towards Gokulpur Talab .However,the other part of Pahadi in question which is located on north,north-east and north-west directions towards Bajrang Nagar Colony and other residential areas is not appearing to be coming in the catchment area of Gokulpur Talab and it was gathered during site visit that during monsoon season the storm water from this Pahadi goes to natural drains which meet nearby Pariat and Hiran rivers which ultimately meets Narmada river. Therefore, it is evident that this part of Pahadi towards Bajrang Nagar Colony is not coming in the immediate catchment area of the Gokulpur Talab seeing the topographical map including land use map (Annex4(b) &4(c)) and Annex 8(a), 8(b) & 8 (c )).As per the information given by Water Resources Dept., the catchment area of Gokulpur Talab is 12.32 sq.kms and is lying on south, south-east and south-west direction from Bajrang Nagar Colony and as such it may be inferred that any development in these directions will obstruct free flow of water towards Gokulpur Talab (Annexure 4c).7
It is quite clear that the depressions and slopes are towards Gokulpur Talab as observed during the site visit and as such during the monsoon season the storm water will obviously flow towards Gokulpur Talab and hence this part of Pahadi towards South-West direction is clearly in the catchment area of Gokulpur Talab (Annex. X,Y,Z,XX &YY) .8
As for the issue pertaining to the conservation of this Pahadi with reference to protection of green cover is concerned,this hillock in question needs to be protected as it use to have vegetation earlier as reported during the site visit but got destroyed due to human interference and mining activities recently undertaken for removal of stones and murram and for leveling purposes to provide residential plots.One big tree is still there just out side the boundary of the site in question as was seen during the site visit. This hillock plays an important role in maintaining ecology of the surrounding areas as also is in the catchment area of Gokulpur Pond and Narmada catchment area.Besides,this Pahadi is the only open space left as surrounding areas are having residential colonies and are densely populated.Apart from above,this Pahadi adds to the aesthetics of the area and as such there is need to conserve and protect this Pahadi in question and plantation work be undertaken so as to improve ecology of the area."9
5. It is also stated in the report of the Court Commissioner that Bajrang Nagar Pahadi is situated on North East side of Goklpur Talab and Goklpur Talab is situated on South West direction of this Pahadi which forms the part of catchment area as such this Pahadi plays a major role in making available monsoon water to Goklpur Tablab which is very clear from the map given by the Water Resource Department which depicts catchment area of 12.32 sq.kms. The Report further reads as under:
"In view of above in the first instance, It is very clear that if this Pahadi is used for residential purposes by way of excavating stones and murram, there will be significant adverse impacts on the surrounding environment due to proposed massive mining operations which will change present natural form of hillock to residential complex. This Pahadi will no doubt turn in to a concrete jungle if proposed developments are allowed. It is seen from the documents submitted before me that a total number of 269 plots having an area of about 22544 sq.mts. are proposed to be developed. Out of 269 plots,68 plots have already been sold by the developer. These plots will lead to a lot of massive civil works and associated construction activities including approach roads, sewage treatment plant, two bore wells for supply of water to residents of the colony etc. The height of this Pahadi in question will also get reduced from 38 mts.to about 22 mts. from the road level of Bajrang Nagar Colony after envisaged developments take place which means that this hill will be chopped off to 10 about16 mts. It may therefore be concluded that there will be massive construction activities including mining operations that will totally change the face of this natural hillock for ever. Such massive civil works coupled with huge mining operations will make this Pahadi more vulnerable to soil erosion and unstable. Therefore it will not be advisable to develop the site in question for residential purposes as this is part of the catchment area for Gokulpur Pond and mining operations will cause significant degradation and environmental ramifications."
6. Finally conclusion of the report reads as under :
"In conclusion, in my opinion in the first instance, the proposed developmental activities in Bajrang Nagar Pahadi in question may not be allowed as this Pahadi lies in the catchment area of Gokulpur Talab and Narmada river as also plays an important role in maintaining ecology of the area and as such may be declared as "No Development Zone" for conservation and the issue related to the developmental project were discussed with all the stakeholders. Revenue Department was requested to furnish details of Khasra No. 9 including Khasra no. 9/23 with respect to its ownership and the adjoing Khasras of Pahadi. Accordingly the information has been submitted by the Revenue Department which indicates that approximately 61.5 Hectares is the total area of this Bajrang Nagar Pahadi (Khasra No. 8/2 & Khasra No. 9/1 to No. 9/23). Out of the total area of 61.5 hectares of Bajrang Nagar Pahadi, the area of site in question (khasra no. 9/23) is 4.523 hectares which is coming to about 7.36 % of the total Pahadi area but then the site in question is located at higher elevations and thus ecologically more important as also from 11 aesthetic point of view it has its own significance. The revenue records in this regard as submitted on 21.11.2016 are enclosed (Annexure-7)."
7. After receipt of the report of Court Commissioner, the factual position and status of the site was clear before the Tribunal. The learned Counsel for Applicant had also emphasized that in the present scenario where the excavation, construction and other illegal activities are been carried out by the Respondents, an interim order needs to be passed during the pendency of these proceedings so as to restrain such activities. Therefore, it was ordered on 18.12.2018 that in the meanwhile, the Respondents are restrained from carrying out activities on the land bearing Khasra Nos. 9/3, 9/4, 9/5, 9/6, 9/7, 9/8 & 9/23 of Patwar Halka No.2, Village Karondi, Tehsil and District Jabalpur.
8. On 03.09.2019, The Tehsildar, Jabalpur was directed to be present before the Tribunal with records of jamabandi of the Year 2000 in relation to Khasra Nos. 9/3, 9/4, 9/5, 9/6, 9/7, 9/8 & 9/23 of Patwar Halka No.2, Village Karondi, Tehsil and District Jabalpur. He was directed to bring alongwith him the revenue trace sheet of the said khasra numbers for perusal of the 12 Tribunal. On the next date of hearing i.e., 26.09.2019, Tehsildar, Jabalpur was present with records in respect of rights of Khatedar (Adhikar Abhilekh). It was found that the entry in respect of the Police Department had come in the year 1955. In the said record said record a mention has also been made in respect of an order passed by Collector in the year 1961. The purpose for calling of the record was to know as to what is the nature of the land in question because presently there is a Pahar at the site. Secondly, we wanted to know as to when and how the entry in the name of police department had been made. Therefore, the Collector Jabalpur was directed to have the concerning record searched out which would give the nature of the land of khasra nos. 9/3, 9/4, 9/5, 9/6, 9/7, 9/8 & 9/23 of Patwar Halka No.2 of Village Karondi, Tehsil and District Jabalpur prior to Year 1955 and secondly, as to when the entry in the name of police department came in the revenue record and what was the basis of the same. On 05.12.2019, the Tehsildar who was present was directed to study a report of the Court Commissioner which mentions that the entire area of Bajrang Nagar Pahadi is approximately 61.5 ha, which includes Khasra no. 8/2 and Khasra no. 9/3, 9/4, 9/5, 9/6, 9/7, 9/8 & 9/23. As there was drastic difference 13 between the record placed by the Tehsildar and report submitted by the Court Commissioner. The Tehsildar was directed to file his submissions in writing with regard to this difference.
9. Subsequently, in the Year 2020, the Commandant, 6th Battalion, Special Armed Forces which is Respondent no. 6 in Original Application No. 67/2015 and Respondent no. 3 & 4 in Original Application No. 41/2018 filed an appeal before the Hon'ble Supreme Court. While disposing of the said appeal on 02.03.2020, the Hon'ble Supreme Court directed that since the Housing Project for the Special Armed Forces has been held up as a result of the stay that has been granted, if the matter is not taken up and decided on 20.03.2020, the said stay shall stand vacated automatically without further reference to the Court. Therefore, the Tribunal had directed that both the Original Applications be listed for hearing on 17.03.2020. The applications were again listed for hearing on 19.03.2020 and the arguments of the parties were concluded and it was made clear that final order would be passed tomorrow i.e., 20.03.2020. Thereafter, a representative of the Office of Tehsildar, Jabalpur had tried to pass over some documents to the Tribunal. As 14 ample opportunity had already been given to Tehsildar, Jabalpur on earlier dates of hearing, as mentioned above, and the same had not been placed on record with copies to the other side, the Tribunal did not take it at that stage look into it. However, today we find that some other person from the Office of the Tehsildar, Jabalpur had submitted the documents in the Office of National Green Tribunal, Central Zonal Bench at Bhopal. Dispite of the fact that full opportunity was given to the respective counsels to submit their arguments on 17th and 19th March, 2020 some of the counsels for the Respondents sought to make further arguments today on some ground or the other which was declined also for the reason that the matter was directed to be decided today i.e., 20.03.2020.
10. After having thoughtfully considered the submissions made by the counsels for the parties and on carefully perusal of the material on record, including the report of the learned Court Commissioner and the photographs of the site in question, we order that there will be no mining operation and excavation of stones in Bajrang Nagar Pahadi area which includes Khasra nos. 8/2, 9/3, 9/4, 9/5, 9/6, 9/7, 9/8 & 9/23 in Patwar Halka No.2, Village Karondi, Tehsil and District Jabalpur. 15 These areas may be notified "no development zone" by the State of Madhya Pradesh within a period of one month from today. Collector, Jabalpur will ensure compliance of this order forthwith. A copy of this order be sent to Collector, Jabalpur and Chief Secretary, Madhya Pradesh by email for compliance and appropriate instructions.
11. Consequently, both the Original Application (67/2015 & 41/2018) stand disposed of, with no order as to costs.
Justice Raghuvendra S. Rathore, JM Dr.Satyawan Singh Garbyal, EM 16