National Green Tribunal
Prakash Mishrimal Porwal vs Ministry Of Environment Forest And ... on 24 February, 2023
Item No.4 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
ORIGINAL APPLICATION NO.103 OF 2022 (WZ)
Prakash Mishrimal Porwal .... Applicant
Versus
MoEF&CC & Ors. ....Respondents
Date of hearing : 24.02.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Mr. Saurabh Kulkarni, Advocate
Respondents : Mr. Aniruddha Kulkarni, Advocate for R-2
Ms. Shakuntala Wadekar, Advocate holding brief
of Ms. Supriya Dangare, Advocate for R-3
Ms. Swati Vaidya-Pandit, Advocate for R-4 and R-5
Mr. Sangram Singh Bhosale, Advocate with
Ms. Samridhi Jain, Advocate for R-9 and R-10
ORDER
1. This application is moved for a direction to constitute a Joint Committee of respondent-authorities to call for joint inspection report in respect of illegal mining being carried out by respondent Nos.9 to 15 and that they be restrained from carrying out any illegal mining; a direction be issued to respondent No.6 - Joint Director (Intelligence), Directorate of Enforcement to initiate criminal action against respondent Nos.9 to 15 under the provisions of Prevention of Money Laundering Act and respondent Nos.9 to 15 (private respondents) be directed to pay environmental compensation caused on account of damage to the environment.
2. The facts of the case, in brief, are that respondent Nos.9 to 12, who are land mafias, operating in and around Lonavala, Taluka Maval, District Pune and are carrying out illegal mining without taking valid permission and have mined approximately 14,152 brass minerals without paying any Page 1 of 10 royalty. Respondent No.14 Shafi Issahaq Attar is the agent of respondent Nos.9 and 10, who are claiming to be land developers. Respondent Nos.9 and 10 have illegally mined the following quantity of minerals:-
Sr. Name of village Quantity in
No. Brass
1. Kole Chafeshwar 3080
2. Kole Chafeshwar 551
3. Chawsar 1200
4. Chawsar 1732
5. Thakursai 3563
6. Varu 322
7. Phangne 3703
3. Regarding above, the applicant had lodged written complaint with the Mamlatdar and the Police Stations concerned but no action was taken. It is further submitted that on applicant's complaint, the Mamlatdar had drawn a spot panchanama and concluded that respondent Nos.9 to 12 had carried out illegal mining amounting to approximately Rs.7,72,96,095/- out of the irrigation land. The illegal excavation amounts to Rs.50 Crores. On the basis of investigation carried out by the Tahsildar, Maval, penalty of Rs.83,66,400/- was imposed for illegal excavation and thereafter, it was waived by the local Sub-Divisional Officer on the basis of false Govt. Resolution (G.R.) submitted by respondent No.13 (private respondent), who is transporter of respondent Nos.9 to 12 and 14. The applicant thereafter challenged the said order of waiver before respondent No.4 - Collector, who reversed the said order and remitted the matter back to the Sub-Divisional Officer for re-hearing but till date, no action has been taken. The affected land is located in thick forest area and that on the basis of panchanama prepared by the Mamlatdar, the police authorities have been directed to Page 2 of 10 register the offence under Sections 379, 34 and 120B of the Indian Penal Code and also High Explosive Substances Act. Respondent Nos.9 to 12 had carried out blasting with the help of Gelatin sticks and electric detonator without any permission. Hence, the above prayers have been made.
4. This matter was considered on 05.12.2022 when without admitting the application, we had constituted a Joint Committee comprising of the Irrigation Department, Water Resources Division, Pune, the District Collector, Pune, the District Mining Officer, Pune and the Chief Conservator of Forests, Pune, directing it to submit a factual as well as action taken report within one month, after issuing notices and giving hearing to the parties.
5. In compliance with our order, the Joint Committee has submitted its report, which is reproduced hereinbelow for the sake of convenience:-
"The findings of the committee regarding to the Survey/Gut no.s as mentioned in the order of Hon'ble Tribunal dated 05/12/2023 given in tabular format is as under :-
Sr. S.no/ Name of Excavati Remark Status
no. Gat no. village on s
Found
1. Gat no. Kusgaon or
Found Private Currently
not land Excavation is not
235 going on.
(action as per
MLRC already
initiated)
2. 21 Kole Chafesar Found Forest Currently
land
Excavation is not
going on.
3. S. no Kole Chafesar not Forest Currently
81 found land
Excavation is not
to going on.
S.no.
103
Page 3 of 10
4. S.no 74 Chavsar found Land for Currently
Pawana Excavation is not
Project going on.
(Irrigation dept
filed FIR against
the illegal
excavation)
5. S. no. 96 Varu (no found Land for Currently
Pawana Excavation is not
survey Project going on.
(Irrigation dept
No.mentioned filed FIR against
in the illegal
the Order) excavation)
6. S. no. 16 Thakursai (no found forest Currently
land Excavation is not
survey No.
going on.
mentioned in
the Order)
7. Phagne (no survey No. No excavation found in Village
Fagne
mentioned in the Order)
It is found that, all the area is hilly and open and except one Gat number mentioned hereinabove, remaining Gat numbers are belongs with Irrigation and Forest department.
The applicant submitted his written statement before the committee on 09/02/2023 thereby made various allegations against the private respondents and Govt. bodies in respect of illegal mining.
As per the above finding and the allegations made by the applicant, the Additional District Magistrate, Pune issued Demi Official letters on 13/02/2023 respectively to Tahsildar Maval, Irrigation dept. and forest dept. thereby directed to take necessary steps in respect of the illegal mining in the aforesaid area. Further it has been directed to Tahsildar Mulshi to initiate action against the illegal mining on private lands.
The office of respondent no. 3 by letter dated -- communicated that, against the illegal mining and transportation from Gat nos. 74 from Village Chaysar and S. no. 96 from Village Varu, they have filed FIR before the Lonawala Rural Police Station on 20/07/2022 and 09/11/2022.
The office of respondent no. 7 by letter dated 10/02/2023 requested to provide the MAP of the excavation done through ETS Page 4 of 10 Machine in respect of the Gat numbers which are falls in their jurisdiction so they can initiate further action.
The respondent nos 9 and 10 submitted that, they have no any concern with the illegal excavation alleged by the applicant. They stated that, the said present O.A. is filed against the said respondents due to their personal rivalry. There are various criminal and civil litigations pending between the applicant and the respondents before various Courts and the applicant only filed the present O.A. to harass the respondents.
The respondent nos. 12 and 13 submitted that, the revenue officers already initiated action against the excavation done in Gat no. 235 and royalty also paid by these respondents.
The respondent no. 11 submitted that, he is also not indulging any kind of illegal mining whatsoever alleged by the applicant. Rest of the private respondents has not filed any say before the committee.
At the time of inspection the Applicant requested to visit the Gat nos 50,51 and 52 from village Bramnoli. Though the said Gat nos. are not mentioned in the O.A., the applicant is going to amend the O.A. to add the said Gat numbers. Hence the committee visited the said Gat numbers wherein it is found that, the said Gat numbers are acquired for the purpose of excavation of minerals for the construction of Pawana Dam. The Irrigation department stated that on 7/12 extracts of the said Gat numbers, name of the Government is appeared, and hence action should be initiated by the revenue Department. The revenue officers assured to ascertain the said fact and proceed further.
The Tahsildar Maval by letter dated 20/02/2023 communicated that, regarding the illegal mining in private Gat no. 235, village Kusgaon, necessary action has been initiated by the Tahsildar by passing order u/s 48 (7) of MLRC against the respondent no. 12 and 13. The order has been challenged before the SDO Maval and same has been pending as on today.
In view of the judgment passed by Hon'ble Apex Court in SLP 3109/2011, Jaspal Singh vs. State of Panjab & ors, regarding to protect Government and Gairan lands, the Govt. of Maharashtra issued two Resolutions respectively dated 12/07/2011 and 10/10/2013. In both Govt. Resolutions it has been specifically stated that, it is the responsibility of the concerned department to preserve the Government land in their vicinity. Therefore in case of government land, Page 5 of 10 concerned Talathi/Circle Officer, in case of forest land, local Forest Officer, in case of Gairan and public land, the concerned Gramsevak, the head of the municipality and in other case the head of the concerned local body have to take necessary care in respect of the government land.
The Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 specifically stated as under,
2. Definition- (h) (i) (a)-- "Competent Authority" means,- (i) for the purpose of Chapter IV of these rules,- (a) in the case of quarries situated on the lands owned by the Public Works Department and Water Resources Department of Government, the Executive Engineer of the concerned Division in case of the permits upto a maximum of 25,000 brass for the use of Departmental work only;
(b) the Tahsildar, where minor minerals are to be extracted and removed Rule-- 60. Grant of Quarry permits by Revenue officers over lands in charge of Water Resources Department, Public Works Department. - In case of lands in charge of Departments other than Revenue Department that is, Water Resources Department, Public Works Department, quarry permits over such lands shall be granted by the Competent Officer only after obtaining No Objection Certificate (N.O.C.) from concerned Executive Engineer in case of Water Resources Department and Public Works Departments and Divisional Forest Officer of the Forests Department.
Considering the above mentioned facts and the written submission made by both the departments, the committee comes to the conclusion that, the Forest and Irrigation department have to preserve the Govt. lands in their vicinity by obtaining measures mentioned hereinabove. In respect of the private lands, it appears that the Tahsildar has already initiated action under MLRC. Report submitted by the Tahsildar, Forest Department and the Irrigation department is annexed herewith.
Hence this report."
6. We find from the above report that out of the gat/survey numbers which are mentioned in the application, gat No.235 of village Kusgaon is said to be private land where excavation was found to have been done but currently no excavation was going on. Regarding gat Page 6 of 10 no.21 of village Kole Chafesar, Survey Nos.81 to 103 of village Kole Chafesar, Survey No.16 of village Thakursai, the land was found to be belonging to Forest Department and in Gat Nos.2, 74 and 16, the excavation was found to have been done though in Survey os.81 to 103, no excavation was found to have been done and currently there was no excavation activity stated to be going on in these survey numbers. We find that a letter of Range Forest Officer, Wadgaon-Maval has been annexed at pages 377 to 378 of the paper-book, which is absolutely vague. However, the officer concerned namely Hanumant A. Jadhav, Range Forest Officer is present today before us who has admitted that the survey numbers which are indicated above have not been demarcated so far and that for its demarcation, they have approached the District Magistrate for assistance but till date, same could not be demarcated. Therefore, it cannot be said with certainty that any illegal mining was being done in the said survey numbers. It is not clearly stated by this officer as to whether any illegal mining was found in that area even if the said survey numbers could not be got demarcated so far.
7. With respect to Survey No.74 of village Chavsar and Survey No.96 of village Varu, the excavation was found to have been done earlier but currently it is not going on and this land belongs to Water Resources Department and in letter written by the Executive Engineer, Irrigation Department, Khadakwasla, Pune addressed to the Resident Deputy Collector, Pune, annexed at pages 372 to 375 of the paper-book, it is recorded that Survey No.74 has been acquired for Pavana project which is owned by Public Resources Department and FIR No.130 dated 27.07.2022 has been lodged, but it is not clear under what provision, the same has been lodged. With regard Survey No.96 of village Varu, the same fact has been mentioned as in case of Survey No.74. However, in Page 7 of 10 this regard also, we do not find under which provision, the FIR has been lodged.
8. Apart from above, this report also contains the reference of Survey Nos.193 and 210 situated in village Chavsar, which were not mentioned in the application and also with respect to Survey Nos.50, 51 and 52 located in village Brahmnoli, it is mentioned that Murum and Sand were required for construction of Pawana dam. The stone has been acquired by the Water Resources Department and that presently Survey Nos.50, 51 and 52 are recorded in favour of Revenue Department. Some action is stated to have been taken against illegal mining in Upsa Irrigation Sub- Division Pavananagar, Headquarters Talegaon Dabhade. But these survey Nos.50, 51 and 52 were not mentioned in the application. It was at the instance of the applicant that the Committee members had visited the said spot and submitted this report. It is not made clear as to whether the mining in this area i.e. Survey Nos.50 to 52 was being done illegally because we are of the view that even if any survey number is not mentioned in the application and finds mention in the report of the Joint Committee and if it is found that illegal mining was being done there, the cognizance thereof has to be taken by us.
9. Regarding Survey No.235, it is recorded that it is a private land where excavation was found to have been done but currently there is no excavation going on and this survey number is situated in Kusgaon. With respect to village Phagne, it is reported in the report that no excavation was found in the said village.
10. From the above mentioned Committee report, we find that several FIRs are said to have been lodged but it is not clear as to under what provisions those have been lodged, but those must have been lodged in respect of illegal mining. If any wrong is committed, it has two facets - one criminal and the other civil. If on the criminal side action is taken by Page 8 of 10 lodging an FIR, does not mean that the culprit cannot be proceeded against for civil wrong, for which compensation may be claimed and here environmental compensation, if the wrong resulted in any adverse impact on environment. Therefore, we have to ascertain as to who has committed such a wrong.
11. In the present application, the allegations are leveled against respondent Nos.9 to 15 regarding illegal mining being done by them which is not being denied by the learned counsel for respondent No.9 and
10. Therefore let these respondents file a reply-affidavit denying allegations which are of very serious nature.
12. The learned counsel for respondent Nos.9 and 10 vehemently submitted that there is nothing in the Joint Committee report against them, therefore, their names should be deleted from the array of the respondents. In our view, we would consider deletion of names of respondent Nos.9 and 10 after having received the replies from all other respondents. We are also of the view that in case we find that the applicant has launched this case against respondent Nos.9 and 10 with vengeance, we would compensate them with adequate costs.
13. The learned counsel for respondent Nos.9 and 10 has also pointed out that vide order dated 27.01.2023, this Tribunal had directed the Joint Committee to explain by today's date as to how the documents were leaked without bringing them for our consideration first. We wanted a reply in that regard from the Joint Committee which has not been given. We record our dissatisfaction on that count and direct the Committee to explain as to why they have not submitted reply in that respect. The explanation shall be submitted before the next date.
14. We also direct that the Joint Committee shall submit a report as to how excavation was allowed to be done in each of the survey numbers in which it is being said by them that earlier some excavation was found to Page 9 of 10 have been done and whether the same was done in accordance with the permissions granted by the Competent Authority. We further direct that the District Magistrate shall render full help to the Forest Department for demarcation of gat no.21 of village Kole Chafesar, Survey Nos.81 to 103 of village Kole Chafesar and Survey No.16 of village Thakursai before the next date and a fresh report shall be submitted as to whether the demarcation has been done and whether within the demarcated area, mining activity has been carried out or not and if the same was illegally done, what action was taken against them.
15. After considering the facts of the case and all aspects of the matter, we find that this application deserves to be admitted and it is accordingly admitted.
16. We direct the Registry to issue notice to the respondents who are not present before us today, returnable within four weeks.
17. The replies shall be filed by the respondents within four weeks.
18. The applicant is directed to provide copies of the Original Application and annexures thereto for being served to the respondents within a week.
19. The applicant is also directed to take necessary steps for service of notice upon the respondents, who are not present before us today, by both ways and also through available e-mail.
20. Put up this matter on 24.04.2023.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM February 24, 2023 O.A.NO.103 OF 2022 (WZ) npj Page 10 of 10