National Green Tribunal
Chittaranjan Mahanta vs State Of Odisha on 22 August, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No. 94/2021/EZ
IN THE MATTER OF:
1. Chittaranjan Mahanta,
S/o Mahendra Mahanta,
Aged about 39 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
2. Samaresh Mahanta,
S/o Maghanad Mahanta,
Aged about 40 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
3. Tankadhar Mahanta,
S/o Gangadhar Mahanta,
Aged about 65 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
4. Jayanta Kumar Mahanta,
S/o PitambarMahanta,
Aged about 25 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
5. Ajay Jhara,
S/o Gunthu Jhara,
Aged about 26 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
6. Saham Oram,
S/o Sena Oram,
Aged about 48 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Odisha,
Pin - 770040
1
7. Mangra Oram,
S/o Samara Oram,
Aged about 65 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
8. Kusha Oram,
S/o Sukra Oram,
Aged about 48 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
9. Khatu Charan Kisan,
S/o Maghu Kisan,
Aged about 68 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
10. Sanatan Kisan,
S/o Harihar Kisan,
Aged about 55 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
11. Saheb Mananta,
S/o Jagannath Mahanta,
Aged about 60 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
12. Bhuleswar Mahanta,
S/o Anama Mahanta,
Aged about 30 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
13. Pradeep Patra,
S/o Jagannath Patra,
Aged about 36 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
2
14. Pitambara Mahanta,
S/o Sambaru Mahanta,
Aged about 60 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
15. Hrukesh Mahanta,
S/o Bhima Mahanta,
Aged about 64 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
16. Nira Kisan,
S/o Butia Kisan,
Aged about 25 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
17. Amresh Mahanta,
S/o Maghanad Mahanta,
Aged about 50 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
18. Bipin Kisan,
S/o Khetrabasi Kisan,
Aged about 23 years,
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
19. Shiba Ch. Mahanta,
S/o Shambaru Mahanta,
Aged about 50 years
Residents of At/Po-Kapanda,
PS - Lahunipara, Dist - Sundargarh,
Pin - 770040
20. Pitrush Munda,
S/o Samul Munda,
Aged about 49 years,
Residents of At-Patajharan,
PO - Kapanda, PS - Lahunipara,
Dist - Sundargarh,
Pin - 770040
21. William Oliver Munda,
S/o Deonish Munda,
3
Aged about 45 years
Residents of At - Patajharan,
PO - Kapanda, PS - Lahunipara,
Dist - Sundargarh,
Pin - 770040
22. Gregory Munda,
S/o Paskal Munda,
Aged about 38 years
Residents of At - Patajharan,
PO - Kapanda, PS - Lahunipara,
Dist - Sundargarh,
Pin - 770040
23. Blacius Munda,
S/o Alphans Munda,
Aged about 30 years
Residents of At - Patajharan,
PO - Kapanda, PS - Lahunipara,
Dist - Sundargarh,
Pin - 770040
24. Dillip Kumar Samantaray,
S/o Lingaraj Samantaray,
Aged about 33 years
Residents of Plot No.3839/8,
Malay Vihar, GGP Colony,
Rasulgarh, Bhubaneswar
Pin -751010
25. Prafulla Samantara,
S/o Dinabandhu Samantara,
Aged about 69 years
A/3, Unit - IX,
Bhubaneswar-22
.... Applicant(s)
Versus
1. State of Odisha,
Through Chief Secretary of Odisha,
Loka Seva Bhawan,
Bhubaneswar,
Pin - 751001
2. Additional Chief Secretary,
Forest and Environment Department,
Kharbela Bhawan,
Bhubaneswar,
Government of Odisha,
Pin - 751001
4
3. District Collector, Sundargarh,
At/Po/Dist - Sundergarh, Odisha,
Pin - 752001
4. Superintendent of Police, Rourkela,
At/Po/Ps - Rourkela,
Dist - Sundergarh,769012
5. Divisional Forest Officer, Rourkela,
At/Po/Ps - Rourkela,
Sundergarh,
6. Managing Director,
Orissa Industrial Development Corporation (IDCO),
IDCO Tower, Exhibition Ground, Bhubaneswar,
Odisha - 751001
7. Chairman, Odisha State Biodiversity Board,
Bhubaneswar, PO-IRCVillage,
Bhubaneswar - 15,
8. Union of India,
Through the Secretary,
Ministry of Environment, Forests and Climate Change,
Indira Paryavaran Bhawan, Jorbagh,
New Delhi - 110003
9. M/s. K A I International Private Limited,
CCC - 23, Civil Township,
Rourkela,
.... Respondent(s)
COUNSEL FOR APPLICANTS:
Mr. Sankar Prasad Pani, Advocate
COUNSEL FOR RESPONDENTS :
Mr. Shakti Prasad Panda, AGA for R-1,2,3,4,5 & 7,
Mr. D. N. Ray, Advocate for R-8,
Mr. Pinaki Mishra, Sr. Advocate a/w Mr. S. Tibrewal and Ms.
Aparajita Rao, Advocates for R-9,
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE DR. ARUN KUMAR VERMA (EXPERT MEMBER) 5 __________________________________________________________________ Reserved On:- August 09th, 2023 Pronounce On:- August 22nd, 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 JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the parties and perused the documents on record.
2. The allegation of the Applicants in the present Original Application is that Respondent No.9, M/s K A I International Private Limited, is setting-up an Iron Ore Pelletisation Plant with a production capacity of 1.5 million tonnes per annum without obtaining Environmental Clearance (EC) or Forest Clearance (FC). It is also stated that the Respondent No.9 is proposing to set-up a Steel Plant and allied activities such as Iron Ore Beneficiation Plant. It is further stated that for that purpose large scale felling of trees to the extent of almost 10,000 trees has been carried out and this area is contiguous to the Kukia Reserve Forest and many other reserve forests within a 10 Km radius which is the habitat of wild animals and endangered species of different flora and fauna of the area, illegally treating the area as 'non-forest' and the permission granted by the Divisional Forest Officer (DFO) is in violation of the law laid sown, inter-alia, in T. N. Godavarman (1997) 2 SCC 267. 6
3. In particular, the case set out by the Applicants in the present Original Application is that the Project Proponent, Respondent No.9, proposes to set-up Iron ore Beneficiation Plant with production capacity of 1.5 Million Tons Per Annum (MTPA), Iron Ore Pelletisation Plant of 1.2 MTPA, Sponge Iron of 0.346 MTPA, Billet of 0.43 MTPA, Rolling Mil 0.417 MTPA, Captive Power Plant (CPP) of 75 MW, Producer Gas Plant 30,000 Nm3/hr. and SMS Slag Crushing Unit 60,150 TPA in Kapand Mouza of Lahunipada Tahasil in Sundergarh District. Its proposal for EC was considered by (Expert Appraisal Committee) EAC on 25-26 February, 2021. In view of high pollution potential, the proposal was returned. Still, the Project Proponent has felled large number of trees illegally which will adversely affect animal habitat and animal movement in the area. The area is contiguous to Kukia Reserve Forest which is also a habitat of wild animals with rare and endangered species. Other adjoining reserved forests are Kukia RF (NW) 0.4 km, Dhenkiam RF (W) 2.8 km, Dhenkiam Block RF (NW 4.3 km, Nalghati Rajabasa RE (SWw) 52, km Dhanaghar Extension RF (NNE) 7.4km, Gurundia RE (Sww) 8.7 km, Bhagoth RE (SSW) 7.1 km. Complaint was filed with the DFO, Rourkela, on 01.10.2021 against illegal felling of trees but no action was taken. The Project Proponent is going ahead with the construction of the project without requisite EC.
4. It is further pointed out that in the 31st Meeting of Re- Constituted Expert Appraisal Committee (REAC) held on 25th-26th February, 2021, environment appraisal of Industry-1 sector projects 7 was carried out under the provisions of the Environment Impact Assessment (EIA) Notification, 2006, and the following was observed:-
"(i) Form I is not complete as most the details sought in the Form I are not provided.
(ii) Pre-feasibility report found to be incomplete as the details relating to environment settings for the proposed site has not been furnished.
(iii) As per the records submitted, no alternate site details were furnished whereas PP during presentation referred three alternative sites for the proposed unit without any review by established methods of site selection.
(iv) There are lots of trees in the proposed site that would be cut as observed from KML file and site photographs submitted during the presentation.
(v) Managed abutment of phenolic water and tar recovered from PGP has not been described.
(vi) Kukia RF is only 400 m from plant.
(vii) 10 Nos. of Induction Furnaces (IF) are proposed (4x10 and 6 x 15T capacities) to produce 0.43 MTPA steel which are having high pollution potential PP should explore feasibility of installation of higher configuration of Induction Furnace.
Recommendations of the Committee:
In view of the aforesaid observations, the Committee after deliberations, recommended to return the proposal in its present form for addressing the shortcomings as listed above. The copies of the Re-Constituted Expert Appraisal Committee Meeting held on 25th- 26th February, 2021, has been filed as Annexure -6 at page 44 of the paper book."
5. By way of evidence, photographs have been filed from page 52 to 62, showing large areas have been cleared by the Project Proponent.
6. Mr. Prasenjeet Mohapatra, learned Additional Standing Counsel who earlier appeared for the State Respondents, on the 8 other hand, referring to the documents at page nos. 33-34, submitted that this land is not forest land, it is Kisam 'Patita'. At Sl. No.1 it is shown as Khata No. 118, Plot No. 1104, total area 99.000 acres and at Sl. No.2 Khata No. 118, Plot No.1107(P), total area 68.750 acres, totaling 167.750 acres.
7. The submission of the Ld. Counsel for the Applicants is that Environmental Clearance has not been granted by the MoEF & CC based on the Re-Constituted Expert Appraisal Committee report.
8. Ms. Aparajita Rao, learned Counsel for Respondent No.9, on the other hand, submitted that Respondent No.9 has again submitted his application for grant of EC. This confirms the fact that EC has not been granted so far.
9. Considering the fact situation that so far Environmental Clearance has not been granted by the MoEF&CC, the Tribunal vide its order dated 08.10.2021 directed that no construction and felling of trees shall be made at the site in question by the Respondent No.9, M/s KAI International Private Limited, including boundary wall etc. till all necessary clearances are granted by the MoEF&CC and other authorities, till further orders.
10. Notice was issued to all the Respondents, including the Project Proponent, MoEF&CC, Divisional Forest Officer, Rourkela, and District Magistrate, Sundergarh. The Tribunal directed that since no EC had been granted, the Project Proponent may not raise any construction and may not fell any more trees without requisite 9 clearance. The Tribunal also sought information from the State of Odisha about the number of trees already felled and action taken.
11. The said Respondents have filed their respective replies.
12. Stand of the MoEF&CC is that the proposal for EIA was returned on the recommendation of the EAC in its meeting held on 25 -26 February, 2021. The Project Proponent withdrew the application for EIA on 27.10.2021 on the ground that configuration of the Plant had changed. Before that, fresh proposal was filed on 21.10.2021. The Divisional Forest Officer, Rourkela, had granted permission for felling of trees on 20.09.2021. The EAC considered the new proposal on 11 -12 November, 2021 and recommended grant of ToR which has been granted by the MoEF&CC on 29.11.2021. Final EIA report has not been filed with the MoEF&CC along with public hearing proceedings.
13. The stand of the Divisional Forest Officer, Rourkela, in affidavit dated 27.07.2022 is that the land in question is Patit (barren) land as per revenue record. 5856 trees are enumerated and permission granted for felling of trees was under Odisha Timber and Other Forest Produce Transit Rules, 1980; the Project Proponent has uprooted stumps of all 1500 trees and destroyed the evidence from the land; there is no scope for any further verification; land is having moderately dense forest growth; Kukia Reserve Forest is not contiguous to the land in question and it is 0.12 Km away. 10
14. Further stand of the Project Proponent is that on its application, IDCO allotted land for the Plant which is non-forest land on 6.8.2021 against payment. It applied for EC on 16.2.2021 which was returned due to defects but another application has been filed on which TOR has been granted. The project involves investment of Rs.341 crores and generation of employment for 225 persons. Divisional Forest Officer, Rourkela, has granted permission for felling trees on the land and the Project Proponent has felled 1500 trees and deposited replantation charges (Rs.62 lacs).
15. The Applicants in their rejoinder affidavit filed on 06.07.2022 have submitted that grant of permission by the Divisional Forest Officer is illegal as the land is deemed forest in view of order of Hon'ble Supreme Court in T. N. Godavarman Thirumulpad (Supra). Description in revenue record that the land in question is barren is not final as dictionary meaning of 'forest' will include land where trees actually exist, as in the case of the land in question. As held in Lafarge (2011) 7 SCC 338, the Divisional Forest Officer cannot grant permission by treating such land as non-forest merely on the basis of revenue record. Moreover, appraisal has to be conducted by the MoEF&CC as per directions in the said judgment which has not been done before felling trees. Further, in terms of Forest Policy, 1988, and directions given in Lafarge, (Supra), forest is not to be treated as mere resource but national asset to prevent erosion and degradation of land. Thus, permission for felling trees by the Divisional Forest Officer is illegal and it affects movement of 11 elephants and habitats of endangered flora and fauna. Number of trees actually cut by the Project Proponent is much more than those permitted by the Divisional Forest Officer. Thus, ToR have been granted without considering these facts and pendency of these proceedings. Reasons for which the proposal was earlier returned on 26.02.2021 still hold good and have not been considered while granting TOR.
16. On pleadings of the parties, issues which arise for consideration are legality of permission for cutting of trees and granting of ToR without considering relevant facts.
17. We first refer to minutes of meeting of EAC for consideration of the proposal for the project. The EAC decided to return the proposal on 26.02.2021 with following observations:-
"Observations of the Committee 31.10.13 The Committee noted the following:
i. Form I is not complete as most of the details sought in the Form I are not provided.
ii. Pre-feasibility report found to be incomplete as the details relating to environment settings for the proposed site has not been furnished.
iii. As per the records submitted, no alternate site details were furnished whereas PP during presentation referred three alternative sites for the proposed unit without any review by established methods of site selection.
iv. There are lots of trees in the proposed site that would be cut as observed from KML file and site photographs submitted during the presentation.
v. Management of phenolic water and tar recovered from PGP has not been described.
vi. Kukia RF is only 400 m from plant.12
vii. 10 Nos of IFs are proposed (4x10 and 6x 15T capacity) to produce 0.43 MTPA steel which are having high pollution potential. PP should explore feasibility of installation of higher configuration of Induction Furnace."
18. As against the above, the minutes of the reconstituted EAC dated 11-12 November, 2021, show that ToRs have been recommended without considering validity of permission granted by the Divisional Forest Officer for cutting of trees and also the pollution potential as earlier considered. There is no change of circumstance for revisiting decision of EAC dated 26.02.2021. Thus, grant of TOR is prima facie vulnerable.
19. Further, permission for felling of trees by the Divisional Forest Officer is prima facie against the mandate of law laid down in the judgment of the Hon'ble Supreme Court in T.N Godavarman (Supra) and Lafarge Umiam Mining Pvt. Ltd (Supra). The said view has been reiterated inter-alia in T. N. Godavarman (2014) 4 SCC 61, BDA v. Sudhakar Hegde (2020) 15 SCC 63 and T. N. Godavarman (2022) 4 SCC 289. When there are large number of trees in the land, it has to be treated as forest notwithstanding its description as 'barren' in the revenue record. Thus, matter is governed by the Forest (Conservation) Act, 1980, attracting prohibition against its use for non-forest purpose without requisite Forest Clearance (FC) from Central Government on consideration of Forest Policy, 1988, and other relevant factors including that such activity will have adverse impact on animal habitat and elephants movement which view finds 13 mention in minutes of EAC dated 26.2.2021 which is not shown to have been duly considered.
20. Thus, there being prima facie strong case in favour of the Applicants, the Tribunal continued the interim order dated 08.10.2021 and also directed that no further steps for the project be taken by the Project Proponent without requisite EC and permissions. Process of consideration by EAC ignoring earlier view dated 26.02.2021 would be illegal. At the same time, instead of straightaway quashing the project at this stage, the Tribunal considered it necessary to obtain an independent appraisal of the issue in the interest of protection of the environment under section 15 read with section 20 of the National Green Tribunal Act, 2010.
21. Accordingly, the Tribunal constituted a Joint Committee comprising:-
(a) Nominee of DG Forest, MoEF&CC (not below the rank of ADG),
(b) Integrated Regional Officer of MoEF&CC, Bhubaneswar,
(c) PCCF (HoFF), Odisha,
(d) Chief Wildlife Warden, Odisha and
(e) District Magistrate, Sundergarh.
22. The Committee was directed to undertake visit to the site, ascertain impact of the project on the wildlife, forest and environment including the adjoining rivers and other environmentally sensitive areas. The Committee was directed to meet within one month with liberty to associate any other 14 individual/institution/agency and interact with the stake holders. The Nodal Agency for coordination and compliance was the Integrated Regional officer of MoEF&CC, Bhubaneswar, for coordination and compliance. The Committee was also directed to give its report within two months with a copy thereof to the Project Proponent. The report was also directed to be placed on the website of Integrated Regional Office of MoEF&CC for being accessed by the Applicants or any other interested persons who may file response to the report. The Tribunal also directed that EC proceedings will remain stayed till further orders.
23. The Tribunal further vide its order dated 07.02.2023 disposed of the I.A. No.01/2022/EZ, I.A. No. 29/2022/EZ and I.A. No.193/2022/EZ.
24. The stand of the Project Proponent, Respondent No.9, in its affidavit dated 01.12.2021 is that an application for felling of trees was submitted in the office of the Divisional Forest Officer-cum- Wildlife Warden Rourkela Forest Division, Sundergarh, vide letter dated 04.03.2021. Thereafter, a Joint Verification and Tree Enumeration was conducted by the Respondent No.9 as well as the Respondent No.5 and based on this Joint Verification, enumeration list was issued by the Respondent No.5 vide his letter dated 24.06.2021 (page 287 of paper book), stating that there were total 5856 trees on the said land. It is stated that thereafter the IDCO, Respondent No.6, vide its letter dated 14.07.2021 directed the Respondent No.9 to deposit an amount of Rs. 62,77,740/- (Rupees 15 Sixty Two Lakhs Seventy Seven Thousand Seven Hundred Forty only) towards royalty and replantation of the trees being felled for establishment of industry by the Project Proponent, Respondent No.9, which amount was duly paid by the Respondent No.9 and as per the requirement of the Respondent No.9, it was assessed that only 1500 trees would be cut.
25. In the affidavit, it is further stated by the Project Proponent, Respondent No.9, that the Divisional Forest Officer, Rourkela, vide his letter dated 20.09.2021 (page no. 315 of the paper book), granted permission for felling of 1500 trees.
26. The case of the Project Proponent, Respondent No.9, is that it has purchased the land in question from the IDCO, Respondent No.6, on payment of Rs. 1,56,28,532/- (Rupees One Crore Fifty Six Lakhs Twenty Eight Thousand Five Hundred Thirty Two only) and the land was admittedly non-forest land though it had a large number of trees standing thereon.
27. The felling of trees has not been disputed by the Forest Department in their counter-affidavit dated 29.12.2021, though the number of trees has been disputed. The figure of 10,000 trees having been felled has been denied and it is stated that a total 1500 trees having a girth of 30 cm and above were felled. It is stated that the water body is also outside the proposed land in question as per GPS coordinates and there is no check dam within the leased out area.
16
28. Further stand of the Forest Department is that as per report of the Tahasildar, Lahunipara, the land in question is 'Abada Jogya Anabadi' having some tree growths but the said land is not forest land like Reserve Forest, Proposed Reserve Forest, Demarcated Protected Forest and Khasra Forest and, therefore, does not attract the provisions of the Forest (Conservation) Act, 1980. It is stated that these plots in question are also not included in the DLC report as per report of the Range Officer, Banki, dated 22.08.2020.
29. According to the Applicants, the letter of the Divisional Forest Officer, Rourkela, dated 11.11.2020 (Annexure-2, page 522 of the paper book) mentions that Plot No.1104 and Plot No.1107 (P) has been jointly verified by the Range Officer, Banki, and the Revenue Inspector, Darjing; the plantation has been taken-up over 25 hectares under CAMPA OWP during 2015-16 and over 100 hectares under CAMPA ANR with Gap Plantation during 2018-19 at Kapanda-Badbahal KF, by Rourkela Forest Division. On verification it was seen that the plantation area overlaps the area requested for the purpose of establishment of industries at some locations.
30. The letter further mentions that as per the judgment of the Hon'ble Supreme Court in Lafarge (Supra), the site may be inspected by the State Forest Department along with the Standing Site Inspection Committee (SIC) constituted by the Regional Office of the MoEF&CC, to ascertain the status of forests based on which a certificate in this regard may be issued. The Site Inspection 17 Committee will also examine as to whether the land in question is forest land or not.
31. The letter further mentions that 135 acres of land of the aforesaid plot consists of well established virgin forest growth having moderate to dense forest with canopy density varying between 40% to 70% with very good biodiversity. It is also stated that though the area is not included in the DLC report but due to strong protection measures, good virgin forest growth has come-up with varying canopy density of 40% to 70% subsequently. The surrounding villages depend heavily on that patch of forest to earn their livelihood and as per the records the land bearing RoR No.118 (AJA) and Plot No. 1104 and Plot No.107 (P) has not been reserved for Compensatory Afforestation (CA).
32. What is noteworthy is that this letter of the Divisional Forest Officer, Rourkela, dated 11.11.2020 categorically mentions that under the domain of conservation of flora and fauna i.e., forestry point of view, the aforesaid land (RoR No. 118 (AJA) and Plot No. 1104 and Plot No.107 (P) is not desirable for use for establishment of industry, however, the report of SIC with representatives of State Forest Department should be taken into consideration to ascertain the status of forests whether it is forest land or not.
33. Further stand of the Project Proponent, Respondent No.9, in its affidavit dated 28.07.2022 is that setting-up of the proposed industry by the Respondent No.9 has been overwhelming supported by the local public and more than 300 members of the local public 18 participated in the meeting, out of which 89 persons have submitted their views on the project and out of 89 persons, only 5 persons objected to the project and the rest overwhelmingly supported the project. The proceedings of public consultation (hearing) have been filed as Annexure-A (page 632 of paper book).
34. The Committee constituted by the Tribunal by its order dated 07.02.2023 has submitted its report (page no.877 of the paper book) which reads as under:-
"Report of the Committee, as per Hon'ble National Green Tribunal's order in the matter of OA No. 94/2021/EZ (Chittaranjan Mahanta & Ors. Vs. State of Odisha & Ors.) to ascertain impact of the project on the wildlife, forest and environment including the adjoining rivers and other environmentally sensitive areas.
Hon'ble National Green Tribunal, Eastern Zone, Kolkata, in its order dated 07.02.2022, in Original Application No. 94/2021/EZ has constituted a Joint Committee comprising of nominee of DG Forest, MoEF&CC (not below the rank of ADG), Integrated Regional Officer of MoEF&CC, Bhubaneswar, PCCF (HoFF), Odisha, Chief Wildlife Warden, Odisha, and the District Magistrate, Sundargarh.
The Hon'ble National Green Tribunal, Eastern Zone has further direct that "The Committee may undertake visit to the site, ascertain impact of the project on the wildlife, forest and environment including the adjoining rivers and other environmentally sensitive areas. The Committee may meet within one month. It will be free to associate any other individual/institution/agency and interact with the stake holders.
After the receipt of the order of the Hon'ble NGT, the copy of the order was communicated to all the members and the Director General of Forests (DGF) was requested to nominate an 19 officer not below the rank of Additional Director General (ADG) for the said committee.
As per the direction of the Hon'ble National Green Tribunal a meeting was conducted in the hybrid mode involving all the members of the committee on 06.03.2023.
PCCF & HOFF, Odisha, PCCF Wildlife, Odisha, PCCF (FD & Nodal Officer, FC Act), Odisha, DDGF(C), Integrated Regional Office, Bhubaneswar, ADM Sundergarh (In-charge DM, Sundergarh), SDM Bonai, Dr. T. H. Mahato, Scientist D, Regional Office Bhubaneswar of MoEF&CC, were present in the meeting.
In the meeting RCCF, Rourkela, Dr. T.H. Mahato, Scientist 'D', IRO Bhubaneswar, representative of SEIAA were co-opted for the committee. In the meeting it was unanimously decided to carry out the site visit on 18th March 2023.
The site was visited by committee on 18.03.2023. Shri Debidutta Biswal, PCCF & HoFF, Odisha, Shri Sushil Kumar Popli, Chief Wildlife Warden, Odisha, Shri A.T Mishra, DDGF (C), IRO, Bhubaneswar, Dr. Gavali Parag Harshad, Collector & District Magistrate, Sudargarh were present during site inspection. among the co-opted members Sri Aun Kumar Mishra, RCCF, Rourkela and Dr. T H Mahato, Scientist 'D', IRO Bhubaneswar, Dr. Pradeepta Nayak, SEIAA, Odisha were present. The information regarding the visit of this committee was given to the petitioner Sri Sankar Prasad Pani, Advocate and the owner of the proposed plant Shri Suresh Agarwal.
The site was again visited by the Nominee of DGF, Sri S P Yadav, ADGF, MoEF&CC, along with forest officials and officials of the revenue department on 28.04.2023. LOCATION OF THE PROJECT:
The project site is located in Kapanda mouza of Bonai block of Sundergarh District. Initially abou t117 acres of land was selected for this purpose which was later reduced to 47.74 acres. The proposed site is surrounded by Hilocks from three sides. The Purnapani-Budhikhutini-Samardari PF is in the eastern side of project site. The Kukia RF is located in the west side of the project site. In the other side there is a hillock which is not a notified forest. The Brahmani river is located at about 2.0 km from the proposed site. The proposed site is not a part 20 of any National Park, Wildlife Sanctuary, Critical wildlife habitat, Elephant or Tiger corridor. It is not within the Eco sensitive zone of any protected area. The nearest PA is Badrama Wildlife Sanctuary which is about 50 kilometer form the proposed site. The forests of the Purnapani-Budhikhutini-
Samardari Pf and Kukia RF are having less than 0.4 crop density and has been kept in the Rehabilitation cum Plantation Working Circle as per the Compartment history available in the Rourkela Forest Division.
STAKEHOLDER CONSULTATION:
During the site inspection besides the member of the committee the officials of the Revenue department Sub Collector, Bonai, Tahasildar, Bonai, and the Amin of that area and officials of the Forest department, DFO, ACF and Range Officer of Rourkela Forest Division were present. The petitioner's advocate Shri Sankar Prasad Pani, the owner of the proposed plant and some of the villagers from Kapanda and Patajhari were also present.
The Committee interacted with the villages of both the villages. the village Kapanda is located 2 km away from the project site. Another village Patjharia is located near the site.
During interaction, some of the villagers were apprehensive about the dust pollution because of smoke from chimney and water pollution because of polluted water from the plant. some of the villagers were opposing because they are of the opinion that the black dust from the plant will act as layer in the leaves of the vegetable crop they are growing and consequently the production will be reduced. They are also apprehensive that the polluted discharge from the plant will pollute the ground water as well as the surface water.
Some of the villagers were in favour of the plant because they are of the opinion that they will get employment because of the plant. at the same time they were saying that the company should engage the local people in the plant.
EFFECT ON WILDLIFE:
During discussion with the villagers, some of the villagers said that last year one elephant had visited the forests of their village. The villagers also said that they have also spotted one 21 wild boar few months back. As per the man-animal conflict report submitted by DFO, in the last three years (20-21, 21-22, 22-23) 2 cases of crop damage in Nuagaon village and one case of crop damage in Kapanda village have been reported. These cases are only in the year 20-21. As per the report no man animal conflict case has been reported in 21-22 & 22-23 in this area.
As per the report of the DFO; discussion with the villagers, and the site visit, it was observed that area in question is not much significance from wild life point of view. Further, the proposed site is not a part of the National Park, Wildlife Sanctuary, Critical Wildlife habitat, Elephant or Tiger corridor. It is not even within the Eco-sensitive zone of any protected area. In fact, the nearest PA is Badrama which is about 50km from the proposed site. Therefore, the proposed plant will not have any significant impact on wildlife.
EFFECT ON FOREST:
The Purnapani-Budhikhutini-Samardari PF and the Kukia RF are located close to the proposed site. As per the Compartment history available in Rourkela Forest Division, these forests come under Dry Peninsular Sal forest. The canopy density is less than 0.4 and these forests have been kept under rehabilitation and Plantation working circle. As per the available record in the state forest department no flora and fauna is endemic to this area. Therefore the proposed project will not have any significant effect on the Flora and Fauna of the nearby forests. Implementation of Proper Eco restoration plan can mitigate adverse impact, if any.
EFFECT ON ENVIRONMENT:
The proposed plant is an integrated steel plant. In such plants the raw materials are to be transported to the site, which may give rise to dust pollution. the existing road that connects to the NH needs to be strengthened and mitigative measures like sprinkling water on the connecting roads have to be taken up.
The proposed plant is surrounded by hillocks. Therefore ESPs have to be installed and the chimney has to be designed 22 of appropriate height and green belt plantation around the site to be taken up to mitigate air pollution.
In integrated steel plants the effluent water has to be treated. Zero effluent discharge, provisions of ETPs, garland drains around the site, water harvesting structure etc. have to be stipulated to mitigate the water pollution.
EFFECT ON RIVER:
The nearest river Brahmani is located at about 2.0 km from the proposed site. The Google map showing the location of the river with distance is annexed as annexure R/3. Therefore, conditions such as zero effluent discharge, ETPs, garland drain and water harvesting structures will ensure that the river water will not be contaminated.
OBSERVATION OF THE COMMITTEE:
As discussed above, the proposed plant will not have any significant impact on wildlife and forests. There are no environmentally sensitive areas nearby. Like any other integrated steel plant, this will also have environmental concern, which can be address/mitigated by the stipulations indicated in the above paragraphs. These stipulations are indicative and not exhaustive.
Further the plant should engage the local people by providing employment, address the health issue of the villagers around the proposed site through regular medical checkup as well as treatment facilities and create a green belt all along the boundary of the proposed plant. Wildlife Conservation plan, Eco-restoration Plan for the surrounding forests will also help in mitigating the adverse impact.23
35. The Report mentions that initially about 117 acres of land was selected for the Project which was later reduced to 47.74 acres. The proposed site is surrounded by hillocks on three sides; the Purnapani-Budhikhutini-Samardari PF is in the eastern side of the project site; the Kukia RF is located in the west side of the project side; on the other side there is a hillock which is not a notified forest; and the Brahmani river is located about 2 kilometer from the proposed side. The proposed site is not a part of any National Park, Wildlife Sanctuary, Critical Wildlife Habitat, Elephant or Tiger Corridor and it is also not within the Eco-Sensitive Zone of any protected area. The nearest Protected Area (PA) is Badrama Wildlife Sanctuary which is about 50 kilometers from the proposed site. The forests of Purnapani-Budhikhutini-Samardari PF and Kukia RF are having less than 0.4 crop density and has been kept in the Rehabilitation-cum-Plantation Working Circle as per the 24 Compartment history available in the Rourkela Forest Division.
During inspection, apart from the officials of the various Departments, Shri Sankar Prasad Pani, Counsel appearing on behalf of the Applicants in the present case, the owner of the proposed Plant and some villagers from Kapanda and Patajharia were also present.
36. The Report further mentions that during the past year one elephant had visited the forest of their village and one wild boar was spotted, though there were two cases of crop damage under Nuagaon village and one case of crop damage in Kapanda village in the year 2020-21 but there is no man-animal conflict reported in 2021-22 and 2022-23 in this area. The Purnapani-Budhikhutini- Samardari PF and Kukia RF are located close to the proposed site; these forests come under Dry Peninsular Sal forests with a canopy density of less than 0.4 and these forests have been kept under Rehabilitation and Plantation Working Circle. There is no flora and fauna endemic to this area. The proposed project will not have any stagnant effects on the flora and fauna of the nearby forests. Implementation of Proper Eco-Restoration Plan can mitigate the adverse impact, if any.
37. The Joint Committee Report further mentions that since the proposed Plant is an integrated Steel Plant and raw material has to be transported to the site giving rise to dust pollution, the existing road that connects to the National Highway (NH) needs to be strengthened and mitigative measures like - water sprinkling on the 25 connecting roads have to be taken-up. It is further noted that since the proposed Plant is surrounded by hillocks, (Electrostatic Precipitators) ESPs have to be installed and the chimney has to be designed of appropriate height and green belt plantation around the site must be taken-up to mitigate air pollution. In the Plant, effluent water has to be treated, zero effluent discharge, provisions of ETPs, garland drains around the site, water harvesting structure etc. have to be stipulated to mitigate the water pollution.
38. Mr. Sankar Prasad Pani, learned Counsel for the Applicants has referred to the MoEF&CC Notification dated 19.08.2010 which mentions that no activity relating to any project covered under this notification would be carried out without obtaining Environmental Clearance.
39. This notification, we may note here, has been tempered by a subsequent notification dated 29.03.2022 issued by the MoEF&CC. This notification provides the following activities which can be undertaken by the Project Proponent for securing the land viz.:-
i. Fencing of the project site by boundary wall using civil construction, barbed wire or precast/prefabricated components.
ii. Construction of temporary sheds using pre-fabricated/modular structure, for site office/guards and storing material and machinery.
iii. Provision of temporary electricity and water supply for site office/guards only.26
40. Mr. Sankar Prasad Pani, learned Counsel for the Applicants submitted that in any case cutting of trees is not a permissible activity under the subsequent notification of the MoEF&CC but the affidavit of the Divisional Forest Officer, Rourkela, dated 27.07.2022 mentions that a show cause notice was issued to the Project Proponent, Respondent No.9 for violation of the Orissa Timber and Other Forest Produce Transit Rules, 1980, and no Timber Transit Permit has been issued to the Respondent No.9 for disposal of the felled materials and there is no provision in the Rules to take action against the said Respondent, if the stumps of the felled trees are removed before issuance of Timber Transit Permit, therefore, the Respondent No.9 has felled more than 1500 trees and removed their stumps for which the exact number of such trees needs to be computed by the Forest Department and appropriate penalty should be levied against the Respondent No.9.
41. Mr. Shakti Prasad Panda, learned Additional Government Advocate appearing for State Respondents, on the other hand, submitted that under the Orissa Timber and Other Forest Produce Transit Rules, 1980, the Divisional Forest Officer is authorized to issue Transit Permit for removal of trees.
42. Question is whether the Divisional Forest Officer is authorized to permit felling of trees as he has done vide his letter dated 20.09.2021, particularly after the judgment of the Hon'ble Supreme Court in the case of Lafarge (Supra) and the T. N. Godavarman Thirumulpad (Supra).
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43. Learned Counsel for the parties, however, submitted that the matter regarding grant of Environmental Clearance is still pending consideration before the Expert Appraisal Committee (EAC) even though the contention of Mr. Sankar Prasad Pani, learned Counsel for the Applicant, is that the Project Proponent, Respondent No.9, has violated the mandatory provisions of the notification of the MoEF&CC dated 19.08.2010 and 29.03.2022 by entering upon the land in question and removing large number of trees including their stumps and has made cement concrete wall as shown in the photographs filed at page no. 871 and 873 (colly) to the paper book.
44. The categorical stand of the State Respondents is that the land in question is not forest land. However, the facts on record emerging from the letter of the Divisional Forest Officer, Rourkela Division, dated 24.06.2021 is that there were 5856 trees standing on Ac. 117.00 of the said land which was a factor which should have been considered by the Divisional Forest Officer before granting permission for felling of 1500 trees in violation of the judgment of the Hon'ble Supreme Court in T. N. Godavarman Thirumulpad (1997) 2 SCC 267.
45. Para 4 of the said judgment reads as under:-
4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest"
must be understood according to its dictionary meaning. This 28 description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] , Rural Litigation and Entitlement Kendra v. State of U.P. [1989 Supp (1) SCC 504] and recently in the order dated 29-11-1996 (Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority [ WP (C) No 749 of 1995 decided on 29-11-1996] ). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi [(1985) 3 SCC 643] has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this Court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay.
46. The fact of existence of large number of trees on the site in question was noted in the 48th meeting of the re-constituted Expert Appraisal Committee held on 11-12.11.2021 which mentions that a total 3972 trees are present at the project site out of which the Project Proponent received permission from local forest authorities 29 for felling of 1500 trees. Further, 260 trees are proposed to be transplanted.
47. The case of Lafarge (Supra) was that the Project Proponent has misrepresented to the MoEF&CC that the land in question was not a forest land, though the stand of the State Respondents therein was that the land was, in fact, forest land and, therefore, the Environmental Clearance was granted due to misrepresentation by the Project Proponent. The Hon'ble Supreme Court in paragraphs 93 and 94 of the said judgment noted that for the first time on 01.06.2006 the Chief Conservator of Forest (C) came out with the change of view that mining lease area stood surrounded by thick natural vegetation covered with sizeable number of tall trees and in the circumstances he recommended that the project proponent should be directed to obtain clearance under the Forest (Conservation) Act, 1980, and not to carry on mining activities till such clearance is obtained. The Principal Chief Conservator of Forests agreed with the opinion of the Chief Conservator of Forests (C) and opined that the Lafarge was not at fault because the certificate indicating absence of forests was given by the Khasi Hills Autonomous District Council. Paragraphs 93 and 94 of the judgment read as under:-
"93. In this connection, it needs to be stated that on 1-6-2006 for the first time the Chief Conservator of Forests (C), Shri Khazan Singh came out with the change of view which was ultimately accepted in 2007 by MoEF. According to the Chief Conservator of Forests (C), he had visited the limestone mining project of Lafarge on 24-5-2006 when he found that the mining 30 lease area stood surrounded by thick natural vegetation covered with sizeable number of tall trees and in the circumstances he recommended that the project proponent should be directed to obtain clearance under the 1980 Act and not to carry on the mining activities till such clearance is obtained.
94. The most important fact is that subsequent to the letter dated 1-6-2006, addressed by the Chief Conservator of Forests (C), Shri Khazan Singh, the Principal Chief Conservator of Forests agreed with the opinion of the Chief Conservator of Forests (C). This was by letter dated 11-5-2007. However, even according to the Principal Chief Conservator of Forests, who was the Chairperson of the Expert Committee appointed by the State Government, Lafarge was not at fault because the certificate indicating absence of forests was given by the Khasi Hills Autonomous District Council. In fact the letter dated 11-5-
2007 further goes to state that the activities of Lafarge will provide employment to a large number of local tribals and rural people and consequently the application for forest clearance made by Lafarge without prejudice to their rights and contentions dated 3-5-2007 be considered by MoEF."
48. Paragraphs 119 and 120 of the said judgment may also be extracted herein below:-
"(d) Summary
119. The time has come for us to apply the constitutional "doctrine of proportionality" to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review. It cannot be gainsaid that utilisation of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices. In the circumstances, barring exceptions, decisions relating to utilisation of natural resources have to be tested on the anvil of the well-recognised principles of judicial review. Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision? Is the decision strictly in accordance with the 31 legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable development in the sense that has the decision-
maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision? Thus, the Court should review the decision-making process to ensure that the decision of MoEF is fair and fully informed, based on the correct principles, and free from any bias or restraint. Once this is ensured, then the doctrine of "margin of appreciation" in favour of the decision-maker would come into play. Our above view is further strengthened by the decision of the Court of Appeal in R. v. Chester City Council [(2011) 1 All ER 476] reported in All ER paras 14 to 16.
120. Accordingly, this matter stands disposed of keeping in mind various facets of the word "environment", the inputs provided by the village durbar of Nongtrai (including their understanding of the word "forest" and the balance between environment and economic sustainability), their participation in the decision-making process, the topography and connectivity of the site to Shillong, the letter dated 11-5-2007 of the Principal Chief Conservator of Forests and the report of Shri B.N. Jha dated 5-4-2010 (HPC) (each one of which refers to economic welfare of the tribals of Village Nongtrai), the polluter pays principle and the intergenerational equity (including the history of limestone mining in the area from 1858 and the prevalent social and customary rights of the natives and tribals). The word "development" is a relative term. One cannot assume that the tribals are not aware of principles of conservation of forest. In the present case, we are satisfied that limestone mining has been going on for centuries in the area and that it is an activity which is intertwined with the culture and the unique landholding and tenure system of Nongtrai Village. On the facts of this case, we are satisfied with the due diligence exercise undertaken by MoEF in the matter of forest diversion. Thus, our order herein is confined to the facts of this case."
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49. While disposing of the said case, the Hon'ble Supreme Court in paragraphs 122 and 123 had issued guidelines to be followed in future cases which read as under:-
"Part II -- Guidelines to be followed in future cases
122. (i) As stated in our order hereinabove, the words "environment" and "sustainable development" have various facets. At times in respect of a few of these facets data is not available. Care for environment is an ongoing process. (i.1.) The time has come for this Court to declare and we hereby declare that the National Forest Policy, 1988 which lays down far-reaching principles must necessarily govern the grant of permissions under Section 2 of the Forest (Conservation) Act, 1980 as the same provides the road map to ecological protection and improvement under the Environment (Protection) Act, 1986. The principles/guidelines mentioned in the National Forest Policy, 1988 should be read as part of the provisions of the Environment (Protection) Act, 1986 read together with the Forest (Conservation) Act, 1980. This direction is required to be given because there is no machinery even today established for implementation of the said National Forest Policy, 1988 read with the Forest (Conservation) Act, 1980. Section 3 of the Environment (Protection) Act, 1986 confers a power coupled with duty and, thus, it is incumbent on the Central Government, as hereinafter indicated, to appoint an appropriate authority, preferably in the form of regulator, at the State and at the Central level for ensuring implementation of the National Forest Policy, 1988.
(i.2.) The difference between a regulator and a court must be kept in mind. The court/tribunal is basically an authority which reacts to a given situation brought to its notice whereas a regulator is a proactive body with the power conferred upon it to frame statutory rules and regulations. The regulatory mechanism warrants open discussion, public participation and circulation of the draft paper inviting suggestions. (i.3.) The basic objectives of the National Forest Policy, 1988 include positive and proactive steps to be taken. These include maintenance of environmental stability through preservation, restoration of ecological balance that has been adversely 33 disturbed by serious depletion of forests, conservation of natural heritage of the country by preserving the remaining natural forests with the vast variety of flora and fauna, checking soil erosion and denudation in the catchment areas, checking the extension of sand dunes, increasing the forest/tree cover in the country and encouraging efficient utilisation of forest produce and maximising substitution of wood.
(i.4.) Thus, we are of the view that under Section 3(3) of the Environment (Protection) Act, 1986, the Central Government should appoint a National Regulator for appraising projects, enforcing environmental conditions for approvals and to impose penalties on polluters.
(i.5.) There is one more reason for having a regulatory mechanism in place. Identification of an area as forest area is solely based on the declaration to be filed by the user agency (project proponent). The project proponent under the existing dispensation is required to undertake EIA by an expert body/institution. In many cases, the court is not made aware of the terms of reference. In several cases, the court is not made aware of the study area undertaken by the expert body. Consequently, MoEF/State Government acts on the report (Rapid EIA) undertaken by the institutions who though accredited submit answers according to the terms of reference propounded by the project proponent. We do not wish to cast any doubt on the credibility of these institutions. However, at times the court is faced with conflicting reports. Similarly, the Government is also faced with a fait accompli kind of situation which in the ultimate analysis leads to grant of ex post facto clearance. To obviate these difficulties, we are of the view that a regulatory mechanism should be put in place and till the time such mechanism is put in place, MoEF should prepare a panel of accredited institutions from which alone the project proponent should obtain the Rapid EIA and that too on the terms of reference to be formulated by MoEF.
(ii) In all future cases, the user agency (project proponents) shall comply with the Office Memorandum dated 26-4-2011 issued by MoEF which requires that all mining projects involving forests and for such non-mining projects which involve more than 40 ha of forests, the project proponent shall submit the 34 documents which have been enumerated in the said memorandum.
(iii) If the project proponent makes a claim regarding status of the land being non-forest and if there is any doubt the site shall be inspected by the State Forest Department along with the regional office of MoEF to ascertain the status of forests, based on which the certificate in this regard be issued. In all such cases, it would be desirable for the representative of the State Forest Department to assist the Expert Appraisal Committee.
(iv) At present, there are six regional offices in the country. This may be expanded to at least ten. At each regional office there may be a Standing Site Inspection Committee which will take up the work of ascertaining the position of the land (namely whether it is forest land or not). In each Committee there may be one non-official member who is an expert in forestry. If it is found that forest land is involved, then forest clearance will have to be applied for first.
(v) Increase in the number of regional offices of the Ministry from six presently located at Shillong, Bhubaneshwar, Lucknow, Chandigarh, Bhopal and Bangalore to at least ten by opening at least four new regional offices at the locations to be decided in consultation with the State/UT Governments to facilitate more frequent inspections and in-depth scrutiny and appraisal of the proposals.
(vi) Constitution of the Regional Empowered Committee, under the Chairmanship of the Chief Conservator of Forests (Central) concerned and having the Conservator of Forests (Central) and three non-official members to be selected from the eminent experts in forestry and allied disciplines as its members, at each of the regional offices of MoEF, to facilitate detailed/in-
depth scrutiny of the proposals involving diversion of forest area of more than 5 ha and up to 40 ha and all proposals relating to mining and encroachments up to 40 ha.
(vii) Creation and regular updating of a GIS based decision support database, tentatively containing inter alia the district- wise details of the location and boundary of (i) each plot of land that may be defined as forest for the purpose of the Forest (Conservation) Act, 1980; (ii) the core, buffer and eco-sensitive zone of the protected areas constituted as per the provisions of the Wild Life (Protection) Act, 1972; (iii) the important migratory 35 corridors for wildlife; and (iv) the forest land diverted for non- forest purpose in the past in the district. The Survey of India toposheets in digital format, the forest cover maps prepared by the Forest Survey of India in preparation of the successive State of Forest Reports and the conditions stipulated in the approvals accorded under the Forest (Conservation) Act, 1980 for each case of diversion of forest land in the district will also be part of the proposed decision support database.
(viii) Orders to implement these may, after getting necessary approvals, be issued expeditiously.
(ix) The Office Memorandum dated 26-4-2011 is in continuation of an earlier Office Memorandum dated 31-3-2011. This earlier OM clearly delineates the order of priority required to be followed while seeking environmental clearance under the Environment Impact Assessment Notification, 2006. It provides that in cases where environmental clearance is required for a project on forest land, the forest clearance shall be obtained before the grant of the environment clearance.
(x) In addition to the above, an Office Memorandum dated 26-4- 2011 on Corporate Environmental Responsibility has also been issued by MoEF. This OM lays down the need for PSUs and other corporate entities to evolve a corporate environment policy of their own to ensure greater compliance with the environmental and forestry clearance granted to them.
(xi) All minutes of proceedings before the Forest Advisory Committee in respect of the Forest (Conservation) Act, 1980 as well as the minutes of proceedings of the Expert Appraisal Committee in respect of the Environment (Protection) Act, 1986 are regularly uploaded on the Ministry's website even before the final approval/decision of the Ministry for Environment and Forests is obtained. This has been done to ensure public accountability. This also includes environmental clearances given under the EIA Notification of 2006 issued under the Environment (Protection) Act, 1986. Henceforth, in addition to the above, all forest clearances given under the Forest (Conservation) Act, 1980 may now be uploaded on the Ministry's website.
(xii) Completion of the exercise undertaken by each State/UT Government in compliance with this Court's order dated 12-12- 1996 [T.N. Godavarman Thirumulpad v. Union of India, (1997) 36 2 SCC 267] wherein inter alia each State/UT Government was directed to constitute an expert committee to identify the areas which are "forests" irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the land of such "forest" and the areas which were earlier "forests" but stand degraded, denuded and cleared, culminating in preparation of geo-referenced district forest maps containing the details of the location and boundary of each plot of land that may be defined as "forest" for the purpose of the Forest (Conservation) Act, 1980.
(xiii) Incorporating appropriate safeguards in the environment clearance process to eliminate chance of the grant of environment clearance to projects involving diversion of forest land by considering such forest land as non-forest, a flow chart depicting the tentative nature and manner of incorporating the proposed safeguards to be finalised after consultation with the State/UT Governments.
(xiv) The public consultation or public hearing as it is commonly known, is a mandatory requirement of the environment clearance process and provides an effective forum for any person aggrieved by any aspect of any project to register and seek redressal of his/her grievances.
(xv) MoEF will prepare a comprehensive policy for inspection, verification and monitoring and the overall procedure relating to the grant of forest clearances and identification of forests in consultation with the States (given that forests fall under Entry 17-A of the Concurrent List).
123. Part II of our order gives guidelines to be followed by the Central Government, State Governments and the various authorities under the Forest (Conservation) Act, 1980 and the Environment (Protection) Act, 1986. These guidelines are to be implemented in all future cases. These guidelines are required to be given so that fait accompli situations do not recur. We have issued these guidelines in the light of our experience in the last couple of years. These guidelines will operate in all future cases of environmental and forest clearances till a regulatory mechanism is put in place. On the implementation of these guidelines, MoEF will file its compliance report within six months."
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The directions given by the Hon'ble Supreme Court in Lafarge (Supra) have been reiterated in (2014) 4 SCC 61; T.N. Godavarman Thirumulpad Vs. Union of India.
50. In view of above, we are of the view that the facts as they stand need to be examined by the Expert Appraisal Committee before whom the question relating to grant of Environmental Clearance to the Project Proponent is still pending and the question whether the Project Proponent is in violation of the Notification dated 19.08.2010 read with subsequent notification dated 29.03.2022 issued by the MoEF&CC, considering the fact that the Project Proponent has also deposited a sum of Rs. 62,77,740/- (Rupees Sixty Two Lakhs Seventy Seven Thousand Seven Hundred Forty only) towards royalty and replantation of the trees, is a matter which needs to be examined by the Expert Appraisal Committee. Question as to whether the Project Proponent, Respondent No.9, is liable for payment of Environmental Compensation for loss caused to the environment is also required to be considered by the MoEF&CC in totality of the facts and circumstances of the case and the judgments of the Hon'ble Supreme Court.
51. Considering the totality of the case and the law laid down by the Hon'ble Supreme Court, we dispose of the Original Application 94/2021/EZ with a direction to the Respondent No.8, MoEF&CC, to take a decision in the matter of grant of Environmental Clearance to the Project Proponent, Respondent No.9, in accordance with law within a period of three months. The interim order granted by this 38 Court on 08.10.2021 shall continue to remain in operation and shall be subject to any final decision taken by the Respondent No.8.
52. I.As. if any, stand disposed of accordingly.
53. There shall be no order as to costs.
......................................... B. AMIT STHALEKAR, JM ................................................. DR. ARUN KUMAR VERMA, EM Kolkata, August 22nd, 2023, Original Application No.94/2021/EZ AK 39