Gujarat High Court
Opg Power Gujarat Pvt Ltd & vs Union Of India [Director] & 3 on 23 June, 2016
Author: Akil Kureshi
Bench: Akil Kureshi, A.J. Shastri
C/SCA/149/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 149 of 2012
With
SPECIAL CIVIL APPLICATION NO. 16613 of 2012
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OPG POWER GUJARAT PVT LTD & 1....Petitioner(s)
Versus
UNION OF INDIA [DIRECTOR] & 3....Respondent(s)
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Appearance:
Mr. Mihor Thakore, Senior Advocate for M/S TRIVEDI & GUPTA,
ADVOCATE for the Petitioner.
Mr. Hardik Vora, Assistant GOVERNMENT PLEADER for Respondent No. 2
MR DIPEN DESAI and MR PY DIVYESHVAR, ADVOCATES for the
Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 23/06/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) These petitions are inter-linked. The petitioner who is common in both the petitions is a public limited company and was at the relevant point of time, in the process of setting up a thermal power plant near village Bhadreshwar, Taluka:
Mundra, Dist: Kutch. The petitioner also had been granted necessary permission for such purpose by various authorities. However, by a notice dated 6.12.2012, Ministry of Environment and Forests, Government of India conveyed to the petitioner that:Page 1 of 5
HC-NIC Page 1 of 5 Created On Tue Jun 28 01:55:45 IST 2016 C/SCA/149/2012 ORDER "4. Whereas M/s OPG in para 35 of its reply affidavit in Application no.32 of 2011 has stated that after obtaining the CRZ clearance, they became aware that the most viable route for the sea water pipeline would pass through a very small tract of land which is forests land, and it applied to the Deputy Conservator of Forests for diversion of 3.68 ha forests land for laying down the proposed Sea water pipelines.......
6. Whereas, as per the letter dated 2-1/2003-FC dated 21st March, 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."
This show cause notice has been challenged by the petitioner in Special Civil Application No. 149 of 2012. The petitioner company has also challenged clause 4.4 of the Guidelines on Forest (Conservation) Act, 1980 as being ultra vires Articles 14 and 19(1)(g) of the Constitution. In essence, this clause pertains to projects which involve forest as well as non-forest land and provides that in such projects, some time work is started on non-forest land in anticipation of the approval of the Central Government for release of the forest land required for the project. It is further provided that work on non-forest land may prove to be infructuous if diversion of forest land is not approved. It is therefore, provided that if a project involves forest as well as non-forest land, the work should not be started on non-forest land till approval of the Central Government for release of the forest land under Forest (Conservation) Act, 1980.
2. We gather from the counsel of the petitioner company that in view of this, the petitioner company installed Page 2 of 5 HC-NIC Page 2 of 5 Created On Tue Jun 28 01:55:45 IST 2016 C/SCA/149/2012 ORDER the power plant without laying down pipeline which would require diversion of forest land. However, the company has not abandoned or foregone the proposal to operate the power plant by laying down pipeline.
3. While these issues were going on, the matter reached National Green Tribunal and under the order of National Green Tribunal dated 10.5.2012, State Level Environment Impact Assessment Authority issued a show cause notice dated 29.5.2012, why State Government should not be informed to initiate legal action under section 19 of the Environment (Protection) Act, 1986 for violation of condition nos.12 and 13 of the environment clearance granted to the company under letter dated 11.6.2010. In essence, these conditions pertain to commencement of the work without diversion of forest land as proposed.
4. During the course of arguments, learned counsel for Union of India placed on record a circular dated 7.1.2013 issued by the Ministry of Environment and Forests by virtue of which, the above-noted clause 4.4 of the guidelines issued under Forest (Conservation) Act, 1980 have been modified giving certain relaxations. We also notice that under an order dated 18.1.2012 passed by this Court in Special Civil Application no.149 of 2012, the High Court had stayed the effect of the said clause 4.4. of the guidelines qua the petitioner, making such interim orders, of course, subject to final order that may be passed in the petition.
5. It was also brought to our notice that by now the petitioners also have necessary permission for diversion of Page 3 of 5 HC-NIC Page 3 of 5 Created On Tue Jun 28 01:55:45 IST 2016 C/SCA/149/2012 ORDER forest land and therefore, permission by deleting condition nos.12 and 13 was also granted. Learned counsel for the petitioner therefore, submitted that the construction cannot be carried out by the petitioner on non-forest land, besides not being in breach of any of the conditions, at any rate, cannot be seen as anything beyond a technical breach.
5. In view of the facts on record and further developments in the nature of modification of clause 4.4 from the Government of India, we are of the opinion that both these petitions can be disposed of leaving it open to the petitioner to respond to the show cause notice dated 29.5.2012 by State Level Environment Impact Assessment Authority. Since the proceedings are at the stage of show cause notice, we would not interfere at this stage. However, if the petitioners make a representation in response to the said notice, their defence would be taken into account before taking final decision.
6. With respect to Special Civil Application no.149 of 2012, in view of the change in guidelines, validity to the original clause 4.4 of the guidelines need not be examined any further.
7. With these observations, both the petitions are disposed of.
(AKIL KURESHI, J.) (A.J. SHASTRI, J.) Page 4 of 5 HC-NIC Page 4 of 5 Created On Tue Jun 28 01:55:45 IST 2016 C/SCA/149/2012 ORDER VC DARJI Page 5 of 5 HC-NIC Page 5 of 5 Created On Tue Jun 28 01:55:45 IST 2016