National Green Tribunal
Prakash Mishrimal Porwal vs Ministry Of Environment Forest And ... on 24 April, 2023
Item No. 8 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(WITH HYBRID OPTION)
Original Application No.103/2022
Caveat No. 14/2022(WZ) & I.A. No. 195/2022(WZ)
Prakash Mishrimal Porwal
.....Applicant
Versus
MOEF&CC & Ors.
....Respondent(s)
Date of hearing: 24.04.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Mr. Saurabh Kulkarni, Advocate
Respondent(s) : Mr. Rahul Garg, Advocate for R-1/MoEF&CC
Mr. Aniruddha Kulkarni, Advocate for R-2/Envt. Deptt.
Ms. Swati Vaidya-Pandit, Advocate for R-4/Dist. Collector &
R-5/Mining Officer
Mr. D.M. Gupte, Advocate for R-7/CCF
Mr. Hanumant Jadhav, Range Forest Officer for R-7
Ms. Samridhi Jain along-with Ms. Aarti D. Bhosale,
Advocates for R-8
Mr. Sangram Singh Bhosale along-with Ms. Samridhi Jain,
Ms. Aarti Gaikwad, Ms. Prajakta Sahotre and Ms. Aarti D.
Bhosale, Advocates for R-9 and R-10
Ms. Samridhi Jain, Advocate for R-11
Mr. Sangram Singh Bhosale along-with Ms. Samridhi Jain,
Advocates for R-12
ORDER
1. From the side of Applicant, learned Counsel Mr. Saurabh Kulkarni has appeared, who submits that he could not file service affidavit because of the Applicant not being available and that he would be filing the same within a week, although he has effected service of notice upon all the Respondents. We direct him to file the same positively within a week. On his saying that he has served notice upon all the Respondents, we hold Page 1 of 9 the service provisionally sufficient upon all the Respondents, even those who are not appearing before us today.
2. In continuation to the earlier order dated 24.02.2023, we are passing the present order.
3. From the side of Respondent No. 1/MoEF&CC, learned Counsel Mr. Rahul Garg has appeared and apprised us that he is a formal party.
4. From the side of Respondent No. 2/Environment Department, Govt. of Maharashtra, learned Counsel Mr. Aniruddha Kulkarni has appeared and apprised that he does not want to file reply affidavit.
5. From the side of Respondent No. 3/Irrigation Department, Govt. of Maharashtra, learned Counsel Ms. Supriya Dangare has appeared and apprised that reply affidavit has already been filed.
6. From the side of Respondent No. 4/District Collector, Pune and Respondent No. 5/District Mining Officer, learned Counsel Ms. Swati Vaidya-Pandit has appeared and apprised that reply affidavit has already been filed.
7. None has appeared from the side of Respondent No. 6/Directorate of Enforcement and from the side of Respondent Nos. 13 to 15 despite sufficient service.
8. From the side of Respondent No. 7/Chief Conservator of Forest, learned Counsel Mr. D.M. Gupte has appeared; from the side of Respondent No. 8/Private Respondent, learned Counsel Ms. Samridhi Jain has appeared; from the side of Respondent Nos. 9 & 10/ Private Respondents, learned Counsel Mr. Sangram Singh Bhosale along-with learned Counsel Ms. Samridhi Jain have appeared; from the side of Page 2 of 9 Respondent No. 11/Private Respondent, learned Counsel Ms. Samridhi Jain has appeared; and from the side of Respondent No. 12/Private Respondent, learned Counsel Mr. Sangram Singh Bhosale along-with learned Counsel Ms. Samridhi Jain have appeared.
9. From the side of Respondent Nos. 9, 10 & 12, learned Counsel has argued that this application has been filed by the Applicant alleging that illegal mining is taking place at Villages: Kole Chafeshwar, Chavsar, Thakursai, Varu and Phagne by the Respondent Nos. 9 to 12 in collusion with the Officers of the Respondent Nos. 3 and 7 but he did not provide any details with respect to where the same was being done and the provisions under which the said violation is being committed because of which this Tribunal at very initial stage i.e. 29.11.2022 had directed the Applicant to bring on record these facts, pursuant to which the Applicant had filed an affidavit on 03.12.2022 disclosing there-in, in para no. 3 that illegal mining is taking place at Villages Gat No.235, Kusgaon, Survey No.21 Kole Chafeshwar, Survey Nos. 81 to 103 Kole Chafeshwar, Survey No. 74 Chavsar, Thakursai, Varu and Phagne by Respondent Nos. 9 to 12 in collusion with the Officers of Respondent Nos. 3 & 7.
10. Thereafter, our attention is drawn by the learned Counsel for the Respondent Nos. 9, 10 & 12 to the order dated 05.12.2022, where-by we had constituted a Joint Committee comprising Irrigation Department:
Water Resource Division, Pune; the District Collector: Pune; the District Mining Officer: Pune; and the Chief Conservator of Forests, Pune to submit a factual as well as action taken report. Then our attention is drawn to the prayer clause, where-in first prayer is the main prayer with respect to that a Committee of the Respondent Authorities be constituted in order to ascertain the illegal mining being carried out by the Page 3 of 9 Respondents and having pointing out so, it is vehemently argued that the Applicant wants, without any details at his end, that this Tribunal should assist the Applicant in ascertaining as to whether illegal mining was being done. In fact the said complaint has been made deliberately in order to harass the Respondents. Then our attention is drawn by the learned Counsel to page nos. 355 to 360 of the paper book, which is the Joint Committee Report, where-in Gat No. 235 was found to be private land, two Gat Numbers i.e. 21 and 81 to 103 were found to be forest land and S. Nos. 74 and 96 were found to be the land belonging to the Pawana Project and S. No. 16 was belonging to the Forest land.
11. Thereafter, our attention is drawn by the learned Counsel for the Respondent Nos. 9, 10 & 12 to our order dated 27.01.2023, where-by we had instructed the Committee to serve notice upon all the parties before conducting the inspection and in that it is asserted that the Applicant was also issued notice to remain present. He has also stated that when the Joint Committee had conducted inspection on 23.12.2022, the Answering Respondents/Respondent Nos. 9, 10 & 12 were not present and the same was conducted in presence of the Applicant. He has also drawn our attention to page nos. 11 to 13 of the Original Application, which contains the fact given by the Applicant that approx. 14,000 Brass quantity had been illegally mined by the Respondent Nos. 9 to 12, which amounted to Rs. 7,72,96,095/- without any basis, as the same is not found to be in consonance with the Joint Committee Report.
12. Thereafter, our attention is drawn by the learned Counsel for the Respondent Nos. 9, 10 & 12 to para no. 5 of the affidavit filed by the Respondent No. 3/Irrigation Department, where-in it is mentioned that soil and stones required for the construction of Pawana Dam have been Page 4 of 9 used from the mined material, which was done at Survey nos. 50, 51, and 52. Having drawn our attention to the same, it is argued that if the mining is being done in a particular Survey Number and the same is being used in that very Survey Number then there is no illegality in that. Thereafter, he has drawn our attention to the affidavit of Respondent No. 12, whom he is representing, where-in it is recorded that on 10.02.2020, the Tahsildar concerned had issued notice to him under Section 48 Sub- Clause 7 of the Maharashtra Land Revenue Code, 1966 because when Talathi of Taluka Maval had visited the said site on 31.01.2020, it was found that 3486 brass of murrum had been excavated at the said site by the Respondent No. 12. On 14.04.2020, when the entire nation was under a lockdown, the Tahsildar, much contrary to the orders passed by the Hon'ble Supreme Court to the effect that no adverse orders be passed, directed Respondent No. 12 to deposit a penalty of Rs.83,66,400/- for the alleged illegal excavation undertaken at the said site by them. The Respondent No.12 had filed a representation on 30.06.2020 against the said order of Tahsildar containing there-in that out of the total area of the said site i.e. 1 Ha. 25 R, only an area of 62.50 R was owned by the Respondent No.12 while the remaining area of 62.50 R was owned by Kumari Ramesh Kumar Wazir (not party). The said illegal excavation was undertaken by Shri Shankar Ramchandra Earthmovers Pvt. Ltd. (Respondent No. 13) in the area owned by Kumari Ramesh Kumar Wazir and the Respondent No.12 has nothing to do with that activity. On 31.07.2020, the Tahsildar undertook the inspection at the said site and categorically found that the Respondent No.12 had not undertaken any illegal excavation at the said site owned by him despite that the Respondent No. 12 has falsely been impleaded by the Applicant in this matter. Being aggrieved by the order passed by the Tahsildar dated Page 5 of 9 14.04.2020, the Respondent No. 12 preferred an appeal on 19.11.2020 before the Sub-Divisional Officer, Maval, Mulsh under Section 247 of the Maharashtra Land revenue Code, 1966, which was allowed and the order of Tehsildar was set aside vide order dated 07.01.2021. Therefore, he is stating that he has not been found to have excavated any murum and other materials from the site in question and has been clearly exonerated, though the same is being disputed by the learned Counsel for the Respondent Nos. 4 & 5 by filing affidavit dated 13.04.2023, where-in in para no. 7, it is submitted that the order passed by the SDO, Maval dated 07.01.2021 was challenged by the Applicant before the Addl. Collector, Pune, who asked the SDO to review the order, which is pending, though these orders alleged to have been passed by the Addl. Collector or the application made by the Applicant before the said authority, have not been annexed from their side. Be that as it may, the said proceedings are going on. It is absolutely clear at this stage that till now the involvement of Respondent No. 12 has not been found to be there in illegal mining activity as alleged by the Applicant but in future, if any decision comes from the side of the authorities concerned that they were also involved, the authorities would be free to proceed against them in accordance with law.
13. In the affidavit of District Mining Officer, it is made clear that following is the position of facts in this case, which has been summarized in tabular form in para no. 10:-
" Survey/ Village Quantity Action Taken
Owned
Gat no. by Mined
(brass)
Page 6 of 9
16 Thakursai Forest 185.38 FIR no. E-2/2022-23
Dpt filed under the Indian
Forest Act 1927 u/s
26(1) A, D, G.
21 Kole Forest 853.43 FIR no. E-6/2022-23
Dpt filed under the Indian
Chafesar
Forest Act 1927 u/s
26(1) A, D, G.
74 Chaysar Irrigatio 415.00 FIR No. 130 / 2022 u/s
n Dpt 379 of CRPC filed
96 Varu Irrigatio 2230.00 FIR No. 197 / 2022 u/s
n Dpt 379 of CRPC filed
235 Kusgaon R -- 12 3468.00 Action initiated by
Tahsildar under MLRC
rules and appeal
pending before the
SDO Maval.
(It's a matter of
Royalty Violation and
not environmental
Degradation)
Total 7151.81
"
14. From the above, it is evident that they have found a total of 7151.81 brass amounting to Rs. 42,91,086 /- to have been excavated illegally or in excess of the permissible limit at five sites in question. Further, it is clearly mentioned in the said affidavit that out of the 5 sites, 4 sites are Government lands where illegal mining has been done since past 10 to 12 years but currently no mining activity is going on and it is not possible for the Committee to ascertain as to who had carried out the said mining activity but it is further stated in this affidavit that the FIRs have been lodged against the unknown individuals for having done illegal mining.
15. With regard to our query as to why the Applicant had been allowed to obtain a copy of the Committee report which was circulated on Page 7 of 9 Whatsapp, apology has been tendered and it is stated that the said copy has been obtained by the Applicant without their knowledge.
16. At least one thing is very clear from the affidavit of Respondent Nos. 4 & 5 that the Private Respondents i.e. Respondent Nos. 9 to 15 have not been found to have been done any illegal mining activity at the site in question, except to some extent by Respondent No. 12, regarding which we have already noted above the details of the status of case.
17. From the side of the Respondent No. 7/Chief Conservator of Forest, a reply affidavit dated 21.04.2023 has been filed, where-in it is made clear that they have not permitted Respondent Nos. 9 to 14 to carry out any kind of mining activity in the forest area. Since the filing of this application, no illegal mining is going on in the forest area. There was illegal mining in the forest areas bearing Sy. Nos. 21 at Mouje Kolechafesar and Sy. Nos. 16 at Mouje Thakursai, regarding which PORs (Preliminary Office Reports) have been filed against unknown persons. Therefore from this affidavit also, we do not find any role in illegal mining on forest land to have done by any of the private Respondents impleaded in the present case.
18. With the reply received from the side of Respondent No. 12, a letter dated 31.07.2020 is found annexed at page nos. 706 to 709 of the paper book, written by the Tehsildar Maval addressed to the Sub-Divisional Officer, Maval: Mulshi, where-in it is recorded that the illegal excavation has been done by Mr. Avinash Dhamdere (Proprietor of Respondent No. 13-Shankar Ramchandra Earthmovers Pvt. Ltd.) through Kumari Ramesh Kumar Wazir in Survey No. 235. Therefore, the propriety demands that the authorities, particularly, Respondent Nos. 4 & 5 should proceed against them for the said illegal activity in accordance with law. Page 8 of 9
19. In view of above discussion made by us, we are of the view that this application needs to be disposed of with the direction that we find nothing against the Respondent Nos. 9 to 15, except, to some extent, the Respondent No. 13, as we have ordered above and regarding Respondent No. 12 also, we have already noted how the proceedings may go on. Against the rest, we drop the proceedings.
20. All connected applications also stand dispose of.
21. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM April 24, 2023 Original Application No. 103/2022 Caveat No. 14/2022(WZ) & I.A. No. 195/2022(WZ) P.Kr Page 9 of 9