National Green Tribunal
Sumitra Laxman Development Society vs Union Of India Through The Secretary ... on 25 September, 2020
1
Item No. 03
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 182/2016/EZ
(I.A. No. 77/2020)
Sumitra Lakshman Development Society Applicant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 25.09.2020
CORAM: HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s): Mr. Rahul Choudhury, Advocate
For Respondent(s): Mr. Gora Chand Roy Choudhury,
Advocate for Respondent No.1.
Mr. Rajib Ranjan, Ld. AG for State of
Jharkhand a/w Ms. Aishwarya
Rajyashree, Advocate for Respondents
No. 2, 5, 7-9.
Mr. Ashok Prasad, Advocate for
Respondent No. 3.
Mr. Surendra Kumar, Advocate for
Respondent No. 4.
Mr. Amit Pattnayak and Mr. Uttam
Kumar Mondal, Advocates for
Respondent No. 6.
ORDER
I.A. No. 77/2020
1. This application had been filed on 04.09.2020 for modification of the orders dated 27.01.2020 and 2 18.08.2020 for expunging the observation with respect to limiting the issue raised in the present application to violation of conditions relating to compliance of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
2. Upon perusal of the application, we find that the application in the first instance is in the nature of a review which cannot be permitted having been filed far in excess of the limitation prescribed under Rule 22(1) of the National Green Tribunal (Practices and Procedure) Rules, 2011. Secondly, even on the merits, we find the plea raised in the application to be an afterthought as the orders being sought to be modified were passed in open court after due deliberations for considerable length of time in court.
3. The application thus stands dismissed.
O.A. No. 182/2016/EZ
4. In the present application, violation of the various conditions of the Environmental Clearance has been alleged although specific allegations pertain to Stage-II 3 Forest Clearance, non-compliance of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, specified in clause 17 of the Environmental Clearance, green belt having not been established, etc.
5. Since, the case had been pending for inordinately long time and had been placed before us only on 18.01.2018 and thereafter on 17.04.2018, in order to assess the present status, vide order dated 23.11.2017, a Committee was constituted comprising of (i) the Conservator of Forest of concerned Forest Circle; (ii) the Member Secretary, State Pollution Control Board; (iii) the Member Secretary, SEIAA, Jharkhand and, (iv) a senior Scientist/Engineer from the Regional Office of the MoEF&CC, Ranchi.
6. The Committee was directed to inspect the project in question and to verify as to whether the conditions of the Forest Clearance and the Environmental Clearance were being complied with by the project proponent and, further directing that in the event there was failure on the part of the project proponent to do so, appropriate action in accordance with law be taken against the project 4 proponent which may also include suspension and/or withdrawal of the Environmental Clearance. Report was directed to be submitted within one month, which was eventually filed on 20.11.2019.
7. The case was then taken up on 27.01.2020, when the reply to the report of the Committee and affidavits in reply filed by the Respondent No. 6 as well as to the counter affidavit of the said Respondent dated 17.08.2019, were considered. After hearing the learned Counsel for the parties at a considerable length, it was agreed that the only question left for determination in the case was as to whether the State respondents had complied with the requirements of the Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, more particularly Section 6, which under Stage-I Forest Clearance was mandatorily required to be complied with.
8. During the proceedings today, the learned Counsel for the Applicant has referred to Annexure IIA-Compliance Status of Conditions of Stage-I Forest Clearance by emphasizing on Sl. No. xvii thereof, to state that in 5 response to the query with regard to obtaining clearance under the provisions of Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the "user agency did not produce the certificate before the Committee towards the settlement of all claims and rights over the proposed forest land under the Act, as per the advisory dated 03.08.2009 issued by the MoEF&CC." It was submitted that the Respondent No. 6 in its counter affidavit has stated that as per the S.D.O, no claim had been received under the Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the Authority to do so under the Act, is the Gram Sabha, when we enquired of the State as to whether in the present case, the procedure prescribed under the Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, had been followed or not, time was sought for by the learned Counsel appearing for the State to seek instructions.
9. As the question was crucial for determination of the only issue remaining to be decided, the prayer was allowed directing the State to file an affidavit. An affidavit was accordingly filed by the State through the In-charge of the 6 Legal Section of the Respondent No. 9 stating that Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, had been duly complied with placing the requisite information in a tabular form as under:-
"Sl. DATE DESCRIPTION OF EVENT No. 01 (i) 31.12.2007 (i) The Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (In short FRA, 2006) came into force.
(ii) The Schedule Tribes and
(ii) 01.01.2008 Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules 2008 (In short FRA Rules 2008) came into force.
02 31.03.2009 NTPC (Respondent No. 6) submitted application before Divisional Forest Officer, Hazaribagh for diversion of forest land for Pakri-Barwadih coal mining project under Forest Conservation Act, 1980.
A Xerox copy of the letter dated 31.03.2009 is annexed hereto and marked as Annexure-A. 03 03.08.2009 ...
Secretaries of all the States /Union Territories stipulating certain evidences for having initiated and completed the process to ensure compliance of FRA Act, 2006 to formulate the unconditional proposals under Forest Conservation Act, 1980.
A Xerox copy of the letter dated 03.08.2009 is annexed hereto and marked as Annexure-B. 04 24.09.2009 With reference to the circular dated 03.08.2009, NTPC (Respondent No. 6) requested Additional Collector, Hazaribagh to provide information regarding Scheduled Tribes and Other Traditional Forest Dwellers 7 staying in the villages coming under project are for onward submission of the same to the Forest Department.
A Xerox copy of the letter dated 24.09.2009 is annexed hereto and marked as Annexure-C. 05 07.01.2010 NTPC (Respondent No. 6) wrote a letter to the S.D.O., Hazaribagh requesting to provide information regarding Scheduled Tribes and Other Traditional Forest Dwellers staying in the villages coming under project are for onward submission of the same to the MoEF.
A Xerox copy of the letter dated 07.01.2010 is annexed hereto and marked as Annexure-D. 06 29.01.2010 S.D.O. Hazaribagh wrote letters to Circle Officer's of Barkagaon, Keredari & Katkamdag for providing the list of Scheduled Tribes and Other Traditional Forest Dwellers staying in the forest land proposed for Pakri- Barwadih Coal mining project.
A Xerox copy of the letter dated 29.01.2010 is annexed hereto and marked as Annexure - E. 07 09.02.2010 Letter from Circle Officer, Barkagaon to S.D.O. Hazaribagh informing that no claims under FRA, 2006 have been received as on date within the forest land proposed for Pakri-Barwadih Coal Mining.
A Xerox copy of the letter dated 09.02.2010 is annexed hereto and marked as Annexure-F. 08 10.02.2010 Letter from Circle Officer, Keredari to SDO, Hazaribagh informating that no claims under FRA, 2006 have been received as on date within the forest land proposed for Pakri-Barwadih Coal Mining.
A Xerox copy of the letter dated 10.02.2010 is annexed hereto and marked as Annexure-G. 09 10.02.2010 ...... under FRA 2006 have been received as on date within the 8 forest land coming under Barkagaon and Keredari circle.
A Xerox copy of the letter dated 10.02.2010 is annexed hereto and marked as Annexure
- H. 10 13.02.2010 Letter from Circle Officer Katkamdag to S.D.O. Hazaribagh informing that no claims under FRA, 2006 have been received as on date within the forest land proposed for Pakri-Barwadih Coal Mining.
A Xerox copy of the letter dated 13.02.2010 is annexed hereto and marked as Annexure
- I. 11 18.02.2010 S.D.O. Hazaribagh sent a letter to District Collector Hazaribagh, stating that no claims under FRA have been received as on date within the forest land coming under Katkamsandi circle.
A Xerox copy of the letter dated 18.02.2010 is annexed as Annexure-J. 12 11.05.2010 MoEF granted Stage-I forest clearance with one of the conditions (Condition-17) that the User agency will obtain the clearance under the provisions of ST & OTFD (Recognition of Forest Rights) Act, 2006 before the final approval and will submit certificate towards ..... alongwith the compliance report as per the advisory dated 03.08.2009.
(Stage-1 letter was addressed to the Principal Secretary, Forest, Govt. of Jharkhand).
A Xerox copy of the letter dated 11.05.2010 is annexed hereto and marked as Annexure-K. 13 31.05.2010 In response to the letter dated 24.09.2009, the Addl. Collector, Hazaribagh replied NTPC enclosing the no claim letters received from S.D.O. Hazaribagh.
A Xerox copy of the letter dated 31.05.2010 is annexed hereto and marked as Annexure-L. 14 24.06.2010 NTPC (Respondent No. 6) submitted compliance of the 9 Stage-I FC conditions before the D.F.O. Hazaribagh. Against the compliance of FRA, 2006, NTPC has submitted letter dated 31.05.2010 received from the Addl. Collector Hazaribagh enclosing the certificates of S.D.O./C.O. concerned alongwith an undertaking to the effect that if any claims or rights are there over the proposed forest land, it will be settled as per provision of FRA, 2006.
A Xerox copy of the letter dated 24.06.2010 is annexed hereto and marked as Annexure-M. 15 28.07.2010 .... No. 2659 dated 28.07.2010 had directed all the Deputy Commissioner's of the State to ensure compliance with the Section - 6 of Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Right) Act, 2006.
A Xerox copy of the letter dated 28.07.2010 is annexed hereto and marked as Annexure - N. 16 17.09.2010 MoEF granted Stage-II (Final Approval) forest clearance to NTPC.
A Xerox copy of the letter dated 17.09.2010 is annexed hereto and marked as Annexure -O 17 01.12.2010 D.F.O. Hazaribagh wrote a letter to NTPC referring to the circular dated 28.07.2010 of F&E Dept, Govt. of Jharkhand and asked NTPC to avail certificate under FRA, 2006 from Collector as per prescribed format enclosed therein.
A Xerox copy of the letter dated 01.12.2010 is annexed hereto and marked as Annexure-P. 18 31.12.2010 NTPC (Respondent No. 6) wrote a letter to Deputy Commissioner/ Collector enclosing all the communications with regard to compliance of FRA, 2006 with a request to forward the certificates to the D.F.O. Hazaribagh.
A Xerox copy of the letter dated 10 31.12.2010 is annexed hereto and marked as Annexure Q. 19 08.01.2011 Addl. Collector Hazaribagh wrote letter to the B.D.O. Barkagaon, Keredari and Katkamdag to conduct Gram Sabhas in concerned villages and to submit certificates alongwith the proceedings.
A Xerox copy of the letter dated 08.01.2011 is annexed hereto and marked as Annexure -R. 20 13.06.2011/ B.D.O. Barkagaon issued notice 19.07.2011 to Paneh Head/Panchayat Secretary, of concerned Panchayats to conduct Gram Sabhas as per schedule mentioned therein.
A Xerox copy of the notice dated 13.06.2011/19.06.2011 are annexed hereto and marked as Annexure - S. 21 15.06.2012 B.D.O. Katkamdag forwarded the Certificate of compliance under FRA, 2006 along with the proceedings of Gram Sabhas held in concerned Panchayats to the Addl. Collector, Hazaribagh.
19.09.2011: Gram Sabha held in Kusumbha.
20.09.2011: Gram Sabha held in Shirka....Banadag.
22.09.2012: Gram Sabha held in Odarna.
A Xerox Copy of the certificates sent on 15.06.2012 along with Gram Sabha resolution of various villages are annexed hereto and marked as Annexure -
T.
22 06.07.2012 Addl. Collector, Hazaribagh sent
urgent reminder to B.D.O.
Barkagaon and Keredari to
forward the compliances under FRA, 2006 for onward submission before the Collector/ Dy. Commissioner.
A Xerox copy of the letter dated 06.07.2012 is annexed hereto and marked as Annexure- U. 11 23 16.07.2012 B.D.O. Barkagaon forwarded the Certificate of compliance under FRA, 2006 along with the proceedings of Gram Sabhas held in concerned Panchayat to the Addl. Collector, Hazaribagh.
20.06.2011: Gram Sabha held for Barkagaon-West.
27.07.2011: Gram Sabha held for Sinduari.
01.08.2011: Gram Sabha held for Chepakela.
03.08.2011: Gram Sabha held for ....... Chandol.
A Xerox copy of the Certificates sent on 16.07.2012 along with Gram Sabha resolution of various villages are annexed hereto and marked as Annexure - V. 24 16.10.2012 B.D.O. Keredari forwarded the Certificate of compliance dated 16.10.2012 under FRA, 2006 along with the proceedings of Gram Sabha to the District Welfare Officer, Hazaribagh.
04.06.2011: Gram Sabha held in Itiz Village of Kandaber Panchayat.
A Xerox copy of the Certificate sent on 16.10.2012 along with Gram Sabha resolution of the villages under Kandaber Gram Panchyat are annexed- hereto and marked as Annexure-W."
10. It is further stated that Gram Sabha was held in the year 2011-12 in the respective villages when resolutions were passed with no claims having been made for the benefits under the Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and, the 12 Gram Sabha has certified in its resolution that no claims have been received.
11. It is further stated that any person aggrieved by the resolution of the Gram Sabha has the remedy of filing a petition before the Sub-Divisional Level Committee within a period of sixty days from date of passing of the resolution by the Gram Sabha under Section 2 of the Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. As there are no persons who were aggrieved by the resolution of the Gram Sabha, no such petition had been filed.
12. In view of the above facts and circumstances, the only question that had been culled out for determination of the case stands answered.
13. In the result, the application stands disposed off along with connected I.A. S.P. Wangdi, JM Dr. Nagin Nanda, EM 25th September, 2020 O.A. No. 182/2016/EZ avt