Gauhati High Court
Xxxx vs In Re - The Union Of India And 7 Ors on 27 January, 2022
Bench: Chief Justice, Soumitra Saikia
Page No.# 1/13
GAHC010077512020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : PIL(Suo Moto)/3/2020
XXXX
GUWAHATI, ASSAM
VERSUS
IN RE - THE UNION OF INDIA AND 7 ORS
REPRESENTED BY SECRETARY, MINISTRY OF MINES, SHASTRI BHAWAN,
DR. RAJENDRA PRASAD ROAD, ROOM NO. 320, A-WING, NEW DELHI -
110001
2:THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI - 781006
3:THE SECRETARY TO THE GOVERNMENT OF ASSAM
HOME AND POLITICAL DEPARTMENT
DISPUR
GUWAHATI - 781006
4:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
FOREST AND ENVIRONMENT DEPARTMENT
DISPUR
GUWAHATI - 781006
5:THE PRINCIPAL CHIEF CONSERVATOR AND HEAD OF FOREST FORCE
ARANYA BHAWAN
PANJABARI
GUWAHATI - 781037
Page No.# 2/13
6:THE DIRECTOR
THE DIRECTORATE OF GEOLOGICAL AND MINING DEPARTMENT
KAHILIPARA
GUWAHATI - 781019
7:COAL INDIA LIMITED
REPRESENTED BY THE CHAIRMAN-CUM-MANAGING DIRECTOR
COAL BHAWAN
PREMISE NO.04 MAR
PLOT NO. AF-III
ACTION AREA-1A
NEWTOWN
RAJARHAT
KOLKATA - 700156
8:THE DEPUTY COMMISSIONER
DISTRICT - TINSUKIA
ASSAM
PIN - 78612
Advocate for the Petitioner : MR. T J MAHANTA, SR. ADV
Advocate for the Respondent : MR. M Z AHMED (R7)
Linked Case : PIL/36/2020
BASANTA DEKA
S/O. LT. LOKNATH DEKA
R/O. KARUNAMOYEE HOUSING APARTMENT
M.C. ROAD
UZAN BAZAR
GUWAHATI-781003.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY SECRETARY
MINISTRY OF ENVIRONMENT
FOREST AND CLIMATE CHANGE
(MoEF AND CC)
GOVT. OF INDIA
NEW DELHI.
Page No.# 3/13
2:THE NATIONAL BOARD OF WILD LIFE (NBWL)
REP. BY THE CHAIRPERSON
MINISTRY OF ENVIRONMENT
FOREST AND CLIMATE CHANGE
(MoEF AND CC)
GOVT. OF INDIA
NEW DELHI.
3:THE STATE OF ASSAM
REP. BY ITS CHIEF SECRETARY
ASSAM SACHIVALAYA
DISPUR
GUWAHATI-06.
4:THE ASSAM STATE BOARD FOR WILD LIFE (SBWL)
REP. BY THE CHAIRPERSON
DEPTT. OF ENVIRONMENT
GOVT. OF ASSAM
ASSAM SACHIVALAYA
DISPUR
GUWAHATI-06.
5:THE GENERAL MANAGER
M/S COAL INDIA LTD.
COAL BHAWAN
PREMISE NO.004
MAR
PLOT NO.AF-III
ACTION AREA 1A
NEWTON RAJARHAT
KOLKATA-7000156.
6:THE GENERAL MANAGER
M/S NORTH EASTERN COAL FIELDS LTD.
COAL INDIA LTD.
BLACK DIAMOND TOWERS
G.S. ROAD
GUWAHATI.
------------
Advocate for : MR. T GOGOI
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 5 ORS.
Linked Case : PIL/29/2020
Page No.# 4/13
MRINMOY KHATANIAR AND ANR.
S/O- LATE BIJOY CH KHATANIAR
R/O- NARIKALBARI PATH
MT ROAD
GUWAHATI- 781024
2: AMAR JYOTI DEKA
S/O- LATE BHABENDRA NATH DEKA
R/O- H NO. 20
NAMONI PATH
KARBI PATH
MOTHER TERESA PATH
P.O- BAMUNIMAIDAM
P.S- GEETANAGAR
GHY- 21
ASSAM
VERSUS
UNION OF INDIA AND 9 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA
MIN OF ENVIRONMENT
FOREST AND CLIMATE CHANGE
INDIRA PARYAVARAN BHAWAN
JORBAGH ROAD
NEW DELHI- 110003
2:MINISTRY OF ENVIRONMENT AND FOREST AND CLIMATE CHANGE
NER OFFICE
LAW U SIB
LUMBATNGEN
NEAR MTC WORKSHOP
SHILLONG- 7930211
3:THE STATE OF ASSAM
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM
ENVIRONMENT AND FOREST DEPTT
DISPUR
GUWAHATI- 06
4:THE CHIEF SECRETARY
TO THE GOVT OF ASSAM
DISPUR SECRETARIAT COMPLEX
GUWAHATI- 06
5:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF
FOREST FORCE
H BLOCK
2ND FLOOR
JANATA BHAWAN
DISPUR
GUWAHATI- 781006
Page No.# 5/13
ASSAM
6:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST (WILDLIFE)
H BLOCK
2ND FLOOR
JANATA BHAWAN
DISPUR
GUWAHATI- 781006
ASSAM
7:NATIONAL BOARD FOR WILDLIFE
REP. BY THE STANDING COMMITTEE OF NATIONAL BOARD FOR WILDLIFE
MIN OF ENVIRONMENT
FOREST AND CLIMATE CHANGE (WILDLIFE DIVISION)
6TH FLOOR
VAYU WING
INDIRA PARYAVARAN BHAWAN
JORBAGH ROAD
NEW DELHI- 110003
8:STATE BOARD FOR WILDLIFE
REP. BY ITS CHAIRMAN
DISPUR SECRETARIAT COMPLEX
GUWAHATI- 06
9:COAL INDIA LIMITED
COAL BHAWAN
PREMISE NO. 04 MAR
PLAT NO AF-III
ACTION AREA -1A
NEW TOWN
RAJARHAT
KOLKATA- 700156
10:CHIEF GENERAL MANAGER
NE COAL FIELDS
COAL INDIA LIMITED
SUB DIV MARGHERITA
DIST- TINSUKIA
ASSAM
PIN- 786181
------------
Advocate for : MR. D K DAS
Advocate for : ASSTT.S.G.I. appearing for UNION OF INDIA AND 9 ORS
Linked Case : PIL/45/2020
BIBEK DAS AND ANR
S/O- LATE REBAKANTA DAS
R/O- VILL- KUHIARBARI
P.O- ARAGANG
Page No.# 6/13
P.S- GINGIA
DIST- BISWANATH
ASSAM
PIN- 784167
2: PANKAJ KUMAR DAS
S/O- LATE LAMBODAR DAS
R/O- H NO. 49
BYE LANE 3
SREENAGAR
R G BARUAH ROAD
P.S- DISPUR
DIST- KAMRUP (M)
ASSAM
PIN- 781005
VERSUS
THE UNION OF INDIA AND 7 ORS
REP. BY THE SECRETARY
MIN OF ENVIRONMENT
FOREST AND CLIMATE CHANGE
GOVT OF INDIA
NEW DELHI- 110001
2:NATIONAL BOARD FOR WILDLIFE
REP. BY THE DIRECTOR OF WILDLIFE PRESERVATION
PARYAVARAN BHAWAN
LODI ROAD
NEW DELHI- 110001
3:MIN OF MINES
GOVT OF INDIA
REP. BY ITS SECRETARY (MINES)
NEW DELHI- 110001
4:THE STATE OF ASSAM
REP. BY PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF
FOREST FORCE
DEPTT OF ENVIRONMENT AND FORESTS
GOVT OF ASSAM
ARANYA BHAWAN
PANJABARI
GUWAHATI
ASSAM
PIN- 781037
5:DEPTT OF MINES AND MINERALS
GOVT OF ASSAM
REP. BY ITS ADDL CHIEF SECRETARY TO THE GOVT OF ASSAM
ASSAM SECRETARIAT
GUWAHATI- 781006
Page No.# 7/13
ASSAM
6:THE DIVISIONAL FOREST OFFICER
DIGBOI FOREST DIVISION
P.O- DIGBOI
DIST- TINSUKIA
ASSAM
PIN- 786171
7:THE GENERAL MANAGER
COAL INDIA LIMITED
COAL BHAWAN
PREMISE NO. 04
MAR
PLOT NO AF III
ACTION AREA - 1A
NEW TOWN
RAJARHAT
KOLKATA- 700156
WEST BENGAL
8:THE GENERAL MANAGER
M/S NORTH EASTERN COALFIELDS COAL INDIA LIMITED
BLACK DIAMOND TOWERS
GS ROAD
GUWAHATI
ASSAM
PIN- 781006
------------
Advocate for : MS. D GHOSH
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 7 ORS
Linked Case : PIL/30/2020
VIKRAM RAJKHOWA AND ANR.
S/O SRI JYOTI PRASAD RAJKHOWA
R/O NARIKAL BARI
P.S GEETANAGAR
GUWAHATI-781024
DIST. KAMRUP(M)
ASSAM
2: SANTANU BARTHAKUR
S/O SRI AWANI BARTHAKUR R/O GANESH MANDIR PATH
NEW GUWAHATI
P.S. NOONMATI
DIST. KAMRUP(M)
ASSAM
VERSUS
Page No.# 8/13
THE UNION OF INDIA AND 16 ORS.
REP. BY THE SECRETARY MINISTRY OF ENVIRONMENT FOREST AND
CLIMATE CHANGE (MOEF AND CC)
GOVT. OF INDIA
NEW DELHI
2:THE SECRETARY
MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGE GOVT. OF
INDIA
NEW DELHI
3:THE CHAIRPERSON
STANDING COMMITTEE OF NATIONAL BOARD FOR WILD LIFE (NBWL)
MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGE GOVT. OF
INDIA
NEW DELHI
4:THE CHAIRPERSON
NATIONAL BIODIVERSITY AUTHORITY (NBA)
MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGE GOVT. OF
INDIA
NEW DELHI
5:THE CHAIRPERSON
FOREST ADVISORY COMMITTEE (FAC)
MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGE GOVT. OF
INDIA
NEW DELHI
6:THE COMMISSIONER AND SECREATRY
ENVIRONMENT AND FOREST DEPTT. GOVT. OF ASSAM
SACHIVALAYA
DISPUR
GUWAHATI-781006
ASSAM
7:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST
ARANYA BHAWAN
PANJABARI
GUWAHATI
8:THE DIVISIONAL FOREST OFFICER
DIGBOI FOREST DIVISION
P.O. DIGBOI
DIST. TINSUKIA
9:THE CHAIRPERSON
STATE BOARD FOR WILD LIFE (SBWL)
ASSAM
DEPTT. OF ENVIRONMENT AND FOREST
GOVT. OF ASSAM
ASSAM SACHIVALAYA
DISPUR
GUWAHATI-781006
Page No.# 9/13
10:THE CHAIRPERSON
ASSAM STATE BIODIVERSITY BOARD (ASBB)
DEPTT. OF ENVIRONMENT AND FOREST
GOVT. OF ASSAM
ASSAM SACHIVALAYA
DISPUR
GUWAHATI-781006
11:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
MINES AND MINERALS DEPTT. ASSAM SACHIVALAYA
DISPUR
GUWAHATI-781006
12:THE DEPUTY COMMISSIONER
TINSUKIA
O/O DEPUTY COMMISSIONER
BORGURI
DIST. TINSUKIA
13:THE DIRECTOR GENERAL OF POLICE
ASSAM
ASSAM POLICE HEAD QUARTERS
ULUBARI
GUWAHATI-781007
14:THE SUPERINTENDENT OF POLICE
TINSUKIA
O/O THE SUPERINTENDENT OF POLICE
BORGURI
DIST. TINSUKIA
15:THE STATE OF ARUNACHAL PRADESH
REP. BY ITS CHIEF SECREATRY
ITANAGAR
ARUNACHAL PRADESH
16:THE GENERAL MANAGER
M/S COAL INDIA LTD. COAL BHAWAN PREMISE NO. 004 MAR
PLOT NO. AF-III
ACTION AREA-1A
NEWTOWN
RAJARHAT
KOLKATA-700156
17:THE GENERAL MANAGER
M/S NORTH EASTERN COALFIELDS
COAL INDIA LTD. BLACK DIAMOND TOWER
GS ROAD
GUWAHATI
KAMRUP (M)
ASSAM
------------
Advocate for : PETITIONER IN PERSON
Advocate for : GA
Page No.# 10/13
ASSAM appearing for THE UNION OF INDIA AND 16 ORS.
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
27.01.2022 Heard Ms. P. Sarma, holding the brief on behalf of Mr. T. J. Mahanta, learned Standing Counsel, Gauhati High Court; Mr. D. K. Das, learned counsel for the petitioners in PIL 29/2020, and PIL 36/2020; Mr. V. Rajkhowa, learned counsel for the petitioners in PIL 30/2020 as well as Ms. D. Ghosh, learned counsel for the petitioners in PIL 45/2020. We have also heard Mr. P. N. Goswami, learned Additional Advocate General, Assam; Mr. R.K.D. Choudhury, learned Assistant Solicitor General of India; Mr. M.Z. Ahmed, learned Standing counsel, Coal India Ltd. as well as Mr. B. D. Goswami, learned counsel appearing for the respondents.
Vide our order dated 05.02.2021 passed in the present set of PILs, we had sought certain instructions/information from learned Assistant Solicitor General of India as to what measures the Central Government has taken under section 36 of the Biological Diversity Act, 2002. Section 36 of the Biological Diversity Act, 2002 reads as under:
"36. Central Government to develop National strategies plans, etc., for conservation, etc., of biological diversity.--
(1) The Central Government shall develop national strategies, plans, programmes for the conservation and promotion and sustainable use of biological diversity including measures for identification and monitoring of Page No.# 11/13 areas rich in biological resources, promotion of in situ, and ex situ, 14 conservation of biological resources, incentives for research, training and public education to increase awareness with respect to biodiversity. (2) Where the Central Government has reason to believe that any area rich in biological diversity, biological resources and their habitats is being threatened by overuse, abuse or neglect, it shall issue directives to the concerned State Government to take immediate ameliorative measures, offering such State Government any technical and other assistance that is possible to be provided or needed.
(3) The Central Government shall, as far as practicable wherever it deems appropriate, integrate the conservation, promotion and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.
(4) The Central Government shall undertake measures,--
(i) wherever necessary, for assessment of environmental impact of that project which is likely to have adverse effect on biological diversity, with a view to avoid or minimise such effects and where appropriate provide for public participation in such assessment;
(ii) to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology likely to have adverse impact on the conservation and sustainable use of biological diversity and human health.
(5) The Central Government shall endeavour to respect and protect the knowledge of local people relating to biological diversity, as recommended by the National Biodiversity Authority through such measures, which may include registration of such knowledge at the local, Page No.# 12/13 State or national levels, and other measures for protection, including sui generis system.
Explanation.-- For the purposes of this section,--
(a) "ex situ conservation" means the conservation of components of biological diversity outside their natural habitats;
(b) "in situ conservation" means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties."
The matter relates to sustainable use of biological resources in the country. The Biological Diversity Act, 2002 is concerned with (a) conservation of biological diversity, (b) sustainable use of its components and (c) fair and equitable sharing of the benefits arising out of the use of biological resources. Section 36, therefore, mandates that the Central Government shall develop national strategies, plans and programmes for conservation and promotion of sustainable use of biological diversity and, in this regard, shall coordinate with the State Government under sub-section (2) of section 36 of the Act. Even though almost a year has passed since we had made our query requesting the Assistant Solicitor General of India to apprise this court regarding the measures taken by the Central Government under section 36 of the Biological Diversity Act, this court has not been apprised, nor has any affidavit been filed in this regard by the Central Government.
Today the learned Assistant Solicitor General of India has made a statement before this court that in spite of his repeated queries and requests in this regard he has not received any answer or instructions from the Central Government.
Page No.# 13/13 We, therefore, presume that the Central Government has not taken any measure as has been mandated under section 36 of the Biological Diversity Act, subject to what the Central Government may have to say on the next date fixed.
Meanwhile, to a query made by this court whether the areas having biological diversities in Assam have been identified by the State Government and, if so, whether such information have been forwarded to the Central Government, Mr. P. N. Goswami, learned Additional Advocate General, Assam, has informed that he would like to file an affidavit in this regard. Let such affidavit be filed by the State respondents within three weeks. List again on 24.02.2022.
JUDGE CHIEF JUSTICE Comparing Assistant