National Green Tribunal
Vinaykumar V Jathar vs State Of Maharashtra Through The ... on 10 January, 2024
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)]
ORIGINAL APPLICATION NO.84 OF 2019 (WZ)
Vinaykumar Vithalrao Jathar,
Age : 41 years, Occu. Medical Practitioner,
Agri. & Social Service, R/o Behind Tahsil Office,
Bankar Nagar, Tq. Shrigonda, District Ahmednagar .... Applicant
Versus
1. The State of Maharashtra,
Through the Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai-32
2. The Secretary,
Environment Department,
Mantralaya, Mumbai-32
3. Maharashtra Pollution Control Board,
Through its Secretary,
Kalpataru Point, 3rd Floor, Near Sion Circle,
Opp. Cine Planet Cinema, Sion (East),
Mumbai - 400 022
4. The Maharashtra Pollution Control Board,
Sub-Regional Officer, Savitribai Phule
Vyapari Sankul, 1st Floor, Near T.V. Center,
Savedi, Tq. & District Ahmednagar
P.O. Box. No.414001
5. The Collector, Ahmednagar,
Tq. and District Ahmednagar
6. The Sub-Divisional Officer,
Karjet-Shrigonda Sub-Division,
Tq. Shrigonda, Dist. Ahmednagar
7. The Tahsildar, Shrigonda,
Tq. Shrigonda, Dist. Ahmednagar
8. The Chief Conservator of Forests,
(Wild Life), Van Bhawan, 3rd Floor,
Gokhle Nagar, Pune
9. The Deputy Conservator of Forest,
Van Bhawan, Aurangabad Road,
Ahmednagar, Dist. Ahmednagar
10.The Range Forest Officer (Territorial),
[NPJ] Page 1 of 30
Shrigonda, Tq. Shrigonda,
District Ahmednagar
11.M/s Sahakar Maharshi Shivajirao
Narayanrao Nagode S.S.K. Ltd.,
Through its Managing Director,
Post Shrigonda, Tq. Shrigonda,
Dist. Ahmednagar ....Respondents
APPEARANCE :
Applicant :Mr. Rahul A. Tambe, Advocate along with
Mr. Tanaji B. Gambhire, Advocate and
Mr. Vijay Mhaske& Ms. Kajal Mandge, Advocates
Respondents :Mr. Aniruddha Kulkarni, Advocate for R-2
Ms. Manasi Joshi, Advocate for R-3 and R-4
Ms. Vaidya Pandit, Advocate for R-5 and R-6
Mr. D.M. Gupte, Advocate for R-8 to R-10
Mr. Sangramsingh R. Bhonsle, Advocate along with
Ms. Aarti Bhonsle, Advocate, Ms. Samridhi S. Jain,
Advocate, Mr. Nrupal A. Dingankar, Advocate,
Ms. Pushkara A. Bhonsle, Advocate and Mr. Naman
Shreshtra, Advocate for R-11
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 19.10.2023
Pronounced on : 10.01.2024
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JUDGMENT
1. This Original Application was originally filed as Writ Petition No.11120 of 2019 before the Hon'ble High Court of Bombay, Bench at Aurangabad, with the prayers that the permission granted by respondent No.3 dated 18.05.2018 in favour of respondent No.11 - M/s Sahakar Maharshi Shivajirao Narayanrao Nagode S.S.K. Ltd. for construction and erection of 26 MW Co-generation power plant in land gut No.52/2 at village Limpangaon, Tq. Shrigonda, District Ahmednagar be declared to be illegal and in contravention of the provisions of Forest Conservation Act and the Guidelines dated 09.02.2011 and 15.03.2011; further it was [NPJ] Page 2 of 30 prayed that prohibitory order be issued to respondent No.11 not to carry out further construction/erection of the said Co-generation power plant on the said gut number in pursuance of the above mentioned permission; further it was prayed that the mutation entries annexed at Exhibit-"G" be declared to be illegal and contrary to the provisions of the Forest (Conservation) Act and further it was prayed that the land to the extent of 36 Hectors situated in Gut No.52/1 at village Limpangaon, Tq. Shrigonda, District Ahmednagar be directed to be handed over to the Forest Department.
2. This Writ Petition was transferred to this Tribunal by the Hon'ble High Court of Bombay, Bench at Aurangabad and has been registered as the present Original Application, which is reflected from the order dated 22.11.2019 of the Consultant (Judicial) of Principal Bench of this Tribunal at New Delhi.
3. The facts of this case, in brief, are respondent No.11 - M/s Sahakar Maharshi Shivajirao Narayanrao Nagode S.S.K. Ltd. has erected co-generation plant for production of electricity in land gut No.52/2, in contravention of the Wildlife Protection Act and other Environmental Laws and guidelines dated 09.02.2011 and 15.03.2011, which are annexed at pages 93 to 120 of the paper-book. The applicant has challenged the mutation entries, annexed at Exhibit-"G" (pages 52 to 92 of the paper-book), English version of which is available at pages 78A to 78AD of the paper-book and order dated 18.05.2018 (Exhibit-N, pages 159 to 165 of the paper-book) i.e. Consent to Establish granted by respondent No.3 - MPCB in favour of respondent No.11 - Project Proponent to establish Co-generation Plant. It is submitted that the Revenue and Forest Department, vide notification issued under Sections 19 and 34 of the Indian Forest Act, 1878 dated 13.06.1892, has notified the lands in Ahmednagar district as reserved forest, which included [NPJ] Page 3 of 30 village Limpangaon (Survey No.99, now Gut No.52/1). In view of the said Notification, the provisions of the Forests Act are made applicable to the said land. Subsequently, the erstwhile Government of Bombay issued a notification dated 19.09.1935 under Section 27 of the Indian Forest Act, 1927, thereby permitting de-reservation of 40 acres of land notified under notification dated 13.06.1892. By subsequent notification dated 25.11.1970, the Government of Maharashtra, exercising powers under Sections 19, 27 and 34 of the Indian Forest Act, 1927, declared area of 82 acres of land in Survey No.99-A at village Limpangaon to be de- reserved. Besides notification (Exhibit-C - pages 41 to 43 of the paper- book), in view of the provisions of Wild Life (Protection) Act, 1972, no permission can be granted for carrying out the non-forest activity within the forest area. The letter issued by respondent No.10 - Range Forest Officer, Shrigonda specifically mentions that Survey No.99/A forms the part of reserved forest, hence No Objection Certificate cannot be granted by the Forest Department for any non-forestry activities. Even in view of the guidelines laid down in the year 2011, the activity taken up by respondent No.11 is prohibited activity. In spite of the letter dated 19.01.2019, directing stoppage of work for obtaining necessary permissions, respondent No.11 has carried out the construction. The letter dated 19.01.2019 as well as the visit reports dated 14.01.2019 and 28.05.2019 would demonstrate that respondent No.11 is doing construction work without obtaining the necessary permissions and without acting as per order dated 19.01.2019. Surprisingly, the visit report dated 28.05.2019 refers to notice dated 19.01.2019 and some vague explanation to it by respondent No.11. However, the report does not clarify whether respondent No.11 has obtained permission from NBWL. Subsequently, visit report dated 31.07.2019 would show that in spite of the stay order, the construction work is in progress and is likely [NPJ] Page 4 of 30 to be completed. Respondent No.11 has taken up non-forestry activity within the eco-sensitive zone of the GIBS which is a prohibited activity. Respondent No.11/Project Proponent, with the help of respondent No.6 SDO, Karjat-Shrigonda Sub-Division and respondent No.7 - Tahsildar, Shrigonda, has got exchanged private lands with forest lands and in connivance with each other, they have got sanctioned the mutation entries.
4. The matter was first considered by this Tribunal on 05.12.2019, on which date a Joint Committee was constituted comprising the Chief Conservator of Forests (Wildlife), Pune, Maharashtra, the District Collector, Ahmednagar, the Conservator of Forests of the concerned Circle/Area and a senior representative of the State Pollution Control Board, the Chief Conservator of Forest (Wildlife), Pune being the nodal agency, with a direction to verify the factual aspects set out in the original application and submit its report. In compliance thereto, the Joint Committee has submitted its report, which is at pages 309 to 317 of the paper-book.
"REPORT ON BEHALF OF THE COMMITTEE COMPRISED IN VIEW OF THE ORDER DATED 05/12/2019 PASSED BY THIS HON'BLE TRIBUNAL
1. In view of the order dated 05/12/2019 passed by this Hon'ble Tribunal, a Preliminary meeting was held on 26/12/2019 with the representative of the committee members. Accordingly, course of action was decided subsequently meeting has been held on 25/02/2020, in which the available record has been scrutinized and it has been decided to conduct joint visit on 29/02/2020. The representative of committee accordingly visited the site on 29/02/2020. Here to marked and annexed at Exh. R 1 is the copy of joint inspection report. However, the representatives of MPCB were not present for the site inspection because of administrative exigencies. After site inspection the committee members have [NPJ] Page 5 of 30 verified the available documents and came to the following conclusions.
i) Vide notification dated 11/02/2020 .issued by Ministry of Environment Forest and Climate Change the Eco-Sensitive Zone for Great Indian Bustard Wildlife Sanctuary has been notified and the existing Eco-Sensitive Zone ranging from 0 to 400 from the sanctuary boundary. in this view of the matter the land and the project in question does not fall within the Eco-Sensitive Zone.
ii) Vide notification No.FLD1870/67084-W dated 25/11/1970 issued by Revenue and Forest Department total 82 Acre of land of gut number 52/2 situated at Limpangoan Tal Shrigonda Dist Ahmednagar came to be de-notified and ceased to be a forest land.
iii) The land bearing gut no. 52/2 was de-notified by order passed by Revenue and Forest Department, Mumbai which was later published in Government Gazette dated 31/12/1970.
Accordingly, said land thereafter was transferred for setting up the project by the then Collector, Ahmednagar vide order dated 02/04/1971. However, after verification of the documents and map prepared by Dy. Supt. Land Record, Shrigonda it appears that, total 35 hectors land out of gut no. 52/1 situated at Limpangoan Tal Shrigonda Dist Ahmednagar is in control and possession of the sugar factory i.e. M/s Sahakar Maharshi Narayanrao Nagawade SSK Ltd. even though the same land is forest land. (Here to marked and annexed Exh. R 2 are the copies of Notification dated 11/02/2020 issued by Ministry of Environment Forest and Climate Change, Delhi, the notification dated 25/11/1970 issued by Revenue and Forest Department, Mumbai and order passed by then Collector, Ahmednagar dated 02/04/1971, & the map prepared by the Dy. Supt. Land Record, Shrigonda in respect of gut no. 52 situated at Limpangoan Tal Shrigonda Dist Ahmednagar Collectively.)
2) It is respectfully submitted, that, the Collector, Ahmednagar vide letter dated 03/03/2020 has called for report from the Sub Divisional Officer, Shrigonda- Parner in consistence with the order dated 05/12/2019 passed by this Hon'ble Tribunal. [NPJ] Page 6 of 30 Accordingly, Sub Divisional Officer, Shrigonda has submitted a report on 04/03/2020 and set out the facts as under.
The land bearing survey no, 99 situated at village Limpangaon Tal Shrigonda is divided in sub survey no 99A & 99B in 1935. In 1970 gut scheme was implemented and the land bearing survey 99A has given new gut no. 234 (area 155.65 H.R.) in gut scheme. The land bearing survey no 99B has given new gut no 237 (area 40 acre) in gut scheme. Then village Jangalewadi has become separate revenue village and gut no 237 has given new gut no 51. As per the Maharashtra Government gazette notification published on 26 Sept 1935 the land bearing survey no 99B (old gut no 237 and new gut no 51) area 40 acre situated at village Limpangaon Tal Shrigonda has ceased to be a reserved forest.
It is also found that the then collector vide order LMD/V 641/71, Ahmednagar dated 02/04/1971 granted land bearing gut no 234 area 82 acre (33.18.41 H R) out of total area 155.65 H R to the Shrigonda Co-operative Sugar Factory Ltd, Limpangaon to erect sugar factory. The name of the Shrigonda Co-operative Sugar Factory has been mutated by mutation entry no 42 dated 22/03/1971, and also land bearing gut no 234 has divided in sub gut no 234/1 area 122.46.59 H R and gut no 234/2 area 33.18.41 H R (82 acre). Subsequently land bearing gut no 234/2 has been given new gut no 52/2. As per the Maharashtra Government gazette notification published on 31 Dec 1970 the land bearing survey no 99A (old gut no 234/2 and new gut no 52/2) area 82 acre (33.18.41 H R) situated at village Limpangaon Tal Shrigonda has ceased to be a reserved forest.
As per the records, it is found that Sahakar Maharshi Shivajirao Narayanrao Nagawade Co-operative Sugar Factory has been erected on deforested land bearing gut no bearing 52/2 area 82 acre (33.18.41 H R) and all the mutation entry done pertaining to gut no 52/2 of sugar factory are of deforested land.
However, as per report submitted by Tabsildar Shrigonda total 35.90 H R of land from gut no 52/1 is under possession of sugar factory which is a forest land and not [NPJ] Page 7 of 30 disforested. This land was granted by the then tahsildars and then it is exchanged by the then SDOs to sugar factory. However this land is not disforested as per the available record to our office. So it appears that, the said grant of land and exchange of the land are in contravention of the provision of Forest Conservation Act, 1980. So all these mutations where forest land is granted and exchanged will be taken in revision by taking prior sanction from State Government.
The exchanged land details of land bearing gut no 52/1 (survey no 99A) area 35.90 H R are shown below.
Gut No / Area H R Mutation entry No
Sr. No. Survey No
2 52/1/4 1.20 3640 Dt- 06/02/2004
3 52/1/51 3.00 3641 Dt- 06/02/2004
4 52/1/8 2.42 3642 Dt- 06/02/2004
5 52/1/5 4.04 3643 Dt- 06/02/2004
.-
6 52/1/40 2.42 2
3645
. Dt- 06/02/2004
7 52/1/6 1.71 3648
4 Dt- 11/02/2004
2
8 52/1/49 3.90 3650 Dt- 23/02/2004
9 52/1/25 3.20 3667 Dt- 01/05/2004
11 52/1/39 2.42 3688 Dt- 11/01/2005
12 52/1/7 2.02 3689 Dt- 11/01/2005
13 52/1/22 1.52 4081 Dt- 08/06/2007
14 52/1/42 1.20 4789 Dt- 02/11/2012
15 52/1/10 4.03 1984 Dt- 28/11/1986
1854 Dt-30/11/1985
16 52/1/24 2.82 4905 Dt. 21/07/2013
Accordingly, all concerned mutation entries in respect of grant and exchange of such lands will be dealt in revision after obtaining prior permission of the State Government. Here to marked and [NPJ] Page 8 of 30 annexed at Exh. R-3 is the copy of report dated 04/03/2020 submitted Sub Divisional Officer, Shrigonda-Parner to Collector, Ahmednagar and the copies of mutation entries, collectively.
3) It is respectfully submitted that, the Sub Regional Officer, MPCB, Ahmednagar has also submitted the facti:3I report vide letter dated 04/03/2020 and stated the details of action taken by Maharashtra Pollution Control Board (MPCB) in respect of M/s Sahakar Maharshi Narayanrao Nagwade SSK Ltd., A/P- Shrigonda Factory, Tal- Shrigonda, Dist- Ahmednagar due to violations of various Environmental enactments as under, The Board has granted conditional consent to establish to the said industry for installation of 26 MW Co-generation plant at Gut No.51/1, Shrigonda, Tal- Shrigonda, Dist- Ahmednagar vide No. CAC/1805000822 dtd- 18.05.2018 with condition not to take effective step for implementation of the project before obtaining Environmental Clearance (EC) as EIA Notification 2006 & amendments there to & for that the industry shall furnish Bank Guarantee of Rs. 10.0 Lakh having validity upto obtaining EC & first consent to operate of the Board. The Board has issued Directions for Stoppage of work of 26 MW Co-generation plant vide letter No.279/188 dtd-19.01.2019 as the industry has completed more than 50% work of installation of 26 MW Co-gen plant without obtaining prior Environmental Clearance (EC).
The Board has also forfeited Bank Guarantee of Rs.10.0 Lakh vide letter No.185/2019 dtd-19.01.2019 for violations of conditions of consent to establish granted by the Board for establishment of 26 MW Co-gen plant i.e. implementation of the project before obtaining Environmental Clearance from the competent authority. The State level Environment Impact Assessment Authority has issued Environmental Clearance for 26 MW. Baggase based Co- generation unit vide letter dtd-11.09.2019. The Board has issued Show Cause notice for refusal of 1st Consent to operate for 26 MW Co-generation plant vide letter Dtd-24.10.2019 due to violations of conditions of consent to establish & failure to comply with Directions for stoppage of work of 26 MW Co-generation plant. The Board has issued Directions for deposition of Environmental Compensation of Rs.69,90000/-for violation of the Directions of the [NPJ] Page 9 of 30 Board vide letter dtd-28.02.2020 Here to marked and Annexed Exh. R-4 is the copy of report dated 04/03/2020 submitted by Sub Regional Officer, MPCB, Ahmednagar to Dy. Conservator Forest, (Wildlife), Pune and the annexure thereto.
Hence this report."
5. Finding that no service affidavit was on record, this Tribunal, vide order dated 12.05.2023, had directed the Registry to issue notice to all the respondents, who were not present on that date i.e. respondent No.1 and respondent Nos.5 to 10, as the remaining respondents had already appeared. The service affidavit dated 19.06.2023 has been filed (pages 526 to 544 of the paper-book), as per which the service is sufficient.
6. From the side of respondent No.11/Project Proponent, the reply affidavit dated 31.08.2020 has been filed, wherein preliminary objection has been raised with respect to maintainability of the present Original Application on the ground that the applicant has sought revocation of the permission dated 18.05.2018 granted by respondent No.3 in favour of respondent No.11 for construction of 26 MW Co-generation Power Plant on Survey No.51/1 of village Limpangaon. The said permission was granted to respondent No.11 to establish the said Co-generation Power Plant under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 (for short, "Water Act") and under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (for short, "Air Act") and under Rule 5 of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. Therefore, if the applicant was not satisfied with the said permission, he could have filed an appeal under Section 28 of the Water Act to the Appellate Authority within thirty days read with Section 16 of the National Green Tribunal Act, 2010 ("NGT Act", for short) and even if by the order to be passed by the Appellate Authority, there would be any grievance, the applicant could have [NPJ] Page 10 of 30 approached this Tribunal under Section 16 of the NGT Act. Similarly, there is a provision under Section 31 of the Air Act to file an appeal before the Appellate Authority. If aggrieved by the order to be passed by the Appellate Authority, against the same, this Tribunal could have been approached under Section 16 of the NGT Act. The applicant despite being completely aware of the same, preferred Writ Petition before the Hon'ble High Court to challenge the impugned order dated 18.05.2018, which is hit by law of limitation. In order to avoid the law of limitation, the Writ Petition has been preferred by the applicant. The cause of action would be treated to have arisen in favour of the applicant by the impugned order dated 18.05.2018 on that very date. Therefore, under Section 14 of the NGT Act, within six months from the date of passing of that order, the Original Application ought to have been filed. Perusal of memo of Writ Petition No.11120/2019 would indicate that the same was filed on 03.09.2019 which was beyond the period of limitation of six months. Moreover, the Hon'ble High Court has not passed any categorical order condoning the delay in filing the present application.
7. It is further submitted that the cancellation of mutation entries in the land record is prayed, which is an issue which would not be covered in enactments specified in Schedule I to the NGT Act. Therefore, this Tribunal is not empowered to adjudicate the issue. Moreover, the mutation entries of which the applicant is seeking revocation, are entries which have been executed much prior in time, hence the prayer sought by the applicant is also hit by limitation under Section 14 of the NGT Act.
8. As regards merits, it has been submitted by the answering respondent that the applicant has failed to produce material on record to show that respondent No.11 has been violating the environmental laws. On the contrary, it is the case of the applicant that survey No.52/1, which is owned by respondent No.11, was originally forest land and the [NPJ] Page 11 of 30 same has been used by respondent No.11 for non-forest activity without conversion of the land in accordance with law. The applicant has made a bald allegation against respondent No.11 to the effect that survey No.52/1, on which respondent No.11 is constructing 26 MW Co- generation plant, falls within the eco-sensitive zone of the Great Indian Bustard (GIB). Therefore, the Consent to Establish dated 18.05.2018 accorded to respondent No.11 ought to be set aside. On both counts, the applicant has misrepresented the facts before this Tribunal as the land Survey No.52/1 was deforested by the Government of Maharashtra under G.L.R. and F.D. No.FLD/1870/67084-W dated 25.11.1970. Besides that, the Collector, Ahmednagar, by order dated 02.04.1971, under the provisions of Maharashtra Land Revenue Code, 1966, has conveyed the sanction for the land admeasuring 82 acres from Survey No.99/A (new Survey No.52/1) of village Limpangaon, Taluka Shrigonda, District Ahmednagar to respondent No.11. The Ministry of Environment, Forest and Climate Change, by notification dated 11.02.2020, in exercise of its powers under Section 3 of the Environment (Protection) Act, 1986 read with Rule 5 of the Environment (Protection) Rules, 1986, has notified an area to an extent varying from 0-400 mtrs around the boundary of the GIB Wildlife Sanctuary in Ahmednagar and Solapur District in the State of Maharashtra as the eco-sensitive zone. In terms of the notification dated 11.02.2020, respondent No.11, on 15.07.2020, received a letter from the Forest Area Officer informing respondent No.11 that survey No.52/2 of village Limpangaon, Taluka Shrigonda was beyond the eco- sensitive zone of the GIB and the distance between the GIB Wildlife Sanctuary and Survey No.52/2 as 8.52 kms., which proves the contention of the applicant in this regard to be false. Besides that, by notification dated 25.11.1970 of the Revenue and Forest Department, Govt. of Maharashtra, 82 acres of land at village Limpangaon, Taluka [NPJ] Page 12 of 30 Shrigonda ceased to be reserved as forest. The fact that 82 acres of survey no.99 (now survey no.52/1) was dereserved as forest, the provisions of the Indian Forest Act cease to apply on Survey no.99 (now survey No.52/1) since 25.11.1970. In the order dated 02.04.1971 issued by the Collector, Ahmednagar, it is categorically stated that Survey No.99/A has been deforested by G.L.R. and F.D. No.FLD/1870/67084-W and the land Survey No.99/A was accorded to respondent No.11 inter alia on the condition of establishing a sugar factory on the said land. Therefore, the contention of the applicant that Survey No.52/1 of village Limpangaon, Taluka Shrigonda (old Survey no.99/A) is a forest land, is erroneous as the same has been deforested and on that only, it was granted to respondent No.11 in accordance with law by the order of the Collector dated 02.04.1971, a copy of which is annexed at Annexure-R1.
9. Further it is submitted by respondent No.11 that the State of Maharashtra issued a notification dated 27.09.1979 to constitute an area of land as the GIB Wildlife Sanctuary. However, the Ministry of Environment, Forest and Climate Change, by notification dated 11.02.2020, notified an area of 0-400 mtrs around the boundary of GIB Wildlife Sanctuary in Ahmednagar and Solapur districts in the State of Maharashtra as the eco-sensitive zone. Survey No.52/2, wherein respondent No.11, has commenced the work of construction of the aforesaid Plant, is beyond the eco-sensitive zone notified in the notification dated 11.02.2020.
10. Further it is mentioned that it is abundantly clear that Survey No.52/1 has been dereserved forest in accordance with law and that it would be necessary for the applicant to show as to how the applicant has derived the knowledge that respondent No.11 is erecting 26 MW Co- generation Power Plant at Survey No.52/2. Further it is mentioned that a challenge is also made to the conduct of Public Hearing by the applicant. [NPJ] Page 13 of 30 As per the EIA Notification, 2006, a Public Hearing is conducted for the purpose of granting Environmental Clearance (EC) to the project. If at all the applicant was aggrieved by the conduct of the Public Hearing, the same could be a ground for challenge to the EC under Section 16 of the NGT Act. Under the provisions of Section 14, the applicant cannot raise a challenge to the conduct of a Public Hearing. The notification dated 11.02.2020 as well as the letter dated 15.07.2020 categorically state that Survey No.52/2 does not fall within the eco-sensitive zone. The Co- generation Plant of respondent No.11 is an integral part of the sugar factory. Respondent No.11 has installed a new 140 ton per hour capacity boiler for the Sugar Unit, Distillery and the Co-generation unit of respondent No.11. Since the boiler is used for Sugar Unit, Distillery Unit along with Co-generation Unit, there is no requirement of obtaining prior EC under the EIA Notification, 2006, merely for installing boilers. The installation of the boiler has been tried to be shown by the applicant to have been completed to the extent of 50%, which is also meant for Co- generation Plant according to the applicant and hence, would require prior EC, but the same is an erroneous fact because no work of Co- generation plant has been undertaken by respondent No.11 so far without obtaining prior EC in accordance with law. The work undertaken by respondent No.11 pertained to the installation of boilers, which had nothing to do with the construction of Co-generation Plant which would be undertaken only after obtaining EC.
11. Another affidavit dated 12.01.2021 has been filed by respondent No.11 at pages 327 to 329 of the paper-book, wherein it is submitted that it had moved an application for Consent to Operate for operating the proposed 26 MW Bagasse based Co-generation Power Plant at Survey No.52/2 of village Limpangaon, Taluka Shrigonda on 22.03.2019, which was considered in the meeting of Maharashtra Pollution Control Board [NPJ] Page 14 of 30 (MPCB) on 07.08.2019, 05.02.2020 and 13.11.2020 and it was decided to be kept in abeyance as respondent No.11 had not submitted the environmental compensation in terms of the show-cause notice dated 28.02.2020 issued by the MPCB. On 24.11.2020, the answering respondent paid an amount of Rs.69,90,000/- to the MPCB under protest against the show-cause notice dated 28.02.2020 and thereafter, the MPCB was pleased to accord respondent No.11 an approval for granting Consent to Operate in its meeting held on 30.12.2020 for the proposed 26 MW Bagasse based Co-generation Power Plant. It is also mentioned that the CAC, in the meeting dated 30.12.2020 noted that the EC for the project for proposed 26 MW Bagasse based Co-generation Power Plant of respondent No.11 was granted on 11.09.2019 and the area of the impugned project as clarified by the Forest Department did not fall within the forest area. The CAC decided to grant the 1st Consent to Operate to the said Plant subject to respondent No.11 apprising this Tribunal of the grant of the consent and subject to any directions of this Tribunal.
12. Another affidavit-reply dated 14.11.2021, re-filed on 02.02.2022, is found on record from the side of respondent No.11. This affidavit has been filed in response to the order of this Tribunal dated 21.09.2021, by which the information is provided with specific reference to Survey No.52/1 at village Limpangaon. It is submitted in this affidavit that old Survey No.99 in 1935 was divided into Survey Nos.99A and 99B. The land Survey No.99A was given new Survey No.234 admeasuring an area of 155.65 H.R. The survey No.234 was further sub-divided into Survey No.234/1 admeasuring an area of 122.46 acres and survey No.234/2 admeasuring an area of 33.18 H.R. Subsequently, the land bearing Survey No.234/2 admeasuring an area of 33.18 H.R. has been given a new Survey No.52/2 whereas the Survey No.234/1 admeasuring an area of 122.46 H.R. has been given a new Survey No.52/1. Out of the total [NPJ] Page 15 of 30 area of 122.46 H.R., an area of 35.90 H.R. is in possession of respondent No.11. Further it is mentioned that the Revenue and Forest Department of the Govt. of Maharashtra, vide resolution dated 01.04.1969, resolved to accord forest land in possession of the Government to the people who were cultivating the said land. In terms of the order of the Collector, the Tahsildar vide order dated 23.05.1969, permanently accorded the land to the cultivators subject to certain conditions. A copy of the said order is annexed as Annexure-R-1. On perusal of the Tahsildar's order dated 23.05.1969, the cultivators were accorded the land, the details of which are given in Table-A (page 377 of the paper-book). On perusal of the Tahsildar's said order, it is apparent that the two cultivators were accorded forest land at old survey No.99A vide the Collector's order dated 21.10.1969, details of which are given at Table-B. Further it is mentioned that in terms of resolution of the State of Maharashtra dated 01.04.1969, the Collector, Ahmednagar directed the transfer of the above stated survey numbers in favour of the cultivators who were cultivating the lands. Thereafter, the Tahsildar, vide order dated 23.05.1969, also directed that the above stated property be accorded to the cultivators of the land. On perusal of table-A at serial No.10, one Kisan Gangaram Sasane, was accorded 3 Acres (1.2 HR) vide Tahsildar's order dated 23.05.1969 and similarly, details of other cultivators have been given who were granted the lands subsequently.
13. Further it is mentioned that since 1969, no Authority has challenged the resolution dated 01.04.1969. On the contrary, all District Revenue Authorities have enforced the resolution of the State Government dated 01.04.1969 and have accordingly completed the vesting of the land Survey No.52/1 to the cultivators. Therefore, since the land stood vested in favour of the cultivators in 1969 and the same [NPJ] Page 16 of 30 has not been disturbed, the doctrine of desuetude would squarely be applicable to the facts of the present case.
14. It is further mentioned that respondent No.11 has merely exchanged the lands vested in the cultivators in the year 1969 through different orders passed by the Sub-Divisional Officer. Thus, when such large scale vesting of the land involving the State has been carried on over vast stretches of land, it is natural for respondent No.11 to assume that whatever actions are being taken, are in accordance with law, otherwise the State would certainly step into to prevent such a massive and prolonged breach of law. In the present case, the silence on the part of the State has led respondent No.11 to believe that there was no patent illegality in the vesting of the disputed land in favour of the cultivators and the subsequent exchange of land in favour of respondent No.11. Thus, the land admeasuring 35.90 HR of village Limpangaon, Taluka Shrigonda is now in possession of respondent No.11 in accordance with law and the contentions raised against it by the applicant have no force.
15. Reply of respondent No.5 - Collector, Ahmednagar and respondent No.6 - Sub-Divisional Officer, Karjet-Shrigonda Sub-Division has been filed, vide their affidavit dated 14.08.2023, wherein it is submitted that the Joint Committee, which was constituted by this Tribunal vide order dated 05.12.2019, has already submitted its report. Vide notification dated 11.02.2020, the MoEF&CC (not a party to the present proceeding) had notified eco-sensitive zone for Great Indian Bustard (GIB) Wildlife Sanctuary ranging 0 to 400 mtrs from the sanctuary boundary and as per that, the land of the project in question does not fall within eco-sensitive zone. Vide notification dated 25.11.1970, issued by Revenue and Forest Department, total 82 acres of land out of Gut No.52/2 situated at Limpangaon, Taluka Shrigonda, District Ahmednagar was de-notified as forest land, which came to be [NPJ] Page 17 of 30 published in Government Gazette dated 31.12.1970 and thereafter, this land came to be transferred for setting up the project by order dated 02.04.1971. However, after verification of the documents and map prepared by Dy. Superintendent of Land Record, Shrigonda, the total land of 35 hectors out of Gut No.52/1 situated at Limpangaon, Taluka Shrigonda was under control and possession of the sugar factory - respondent No.11, even though the said land was forest land. The Collector, Ahmednagar - respondent No.5, vide letter dated 03.03.2020, called for report from respondent No. 6 - Sub-Divisional Officer, Shrigonda in compliance with this Tribunal's order dated 05.12.2019, which was submitted on 04.03.2020. From the record, it is revealed that respondent No.11 - sugar factory has been erected on de-forested land bearing Survey No.52/2 in an area of 82 acres (33.18.41 H.R.) and all the mutation entries pertained to Gut No.52/2. However, as per the report of Tahsildar, Shrigonda - respondent No.6, total 35.90 H.R. of land of Gut No.52/1 under possession of sugar factory - respondent No.11, which is a forest land was not deforested. This land is granted by the then Tahsildar and then the same was exchanged by the then Sub-Divisional Officer, Shrigonda by issuing separate orders. However, the exchanged land i.e. total 35.90 H.R. bearing Gut No.52/1 is not deforested as per the available record. It appears that the said grant of land and exchange of land are in contravention of the provisions of the Forest Conservation Act. It is further mentioned that in above factual situation, all the mutation entries need revision by obtaining prior sanction of the State Government in view of the Government Gazette dated 11.04.2016. The details of the land given in exchange of land bearing Gut No.52/1 (Survey No.99A), area 35.90 H.R. are given in tabular form at pages 549 to 550 of the paper-book. It is further made clear in this affidavit that the process [NPJ] Page 18 of 30 of revision is going on as the same is said to be under consideration of the Government.
16. The stand taken by respondent Nos.3 and 4 - MPCB, through their affidavit dated 28.07.2023, is that the allegation made by the applicant is that respondent No.11 has set up 26MW Co-generation unit on land Gut No.52/2 of village Limpangaon, Taluka Shrigonda, District Ahmednagar, which falls in eco-sensitive zone. This Tribunal, vide its order dated 12.05.2023, stated that "the question remains that the Consent to Establish was granted in the year 2018 when the Notification was not in force, therefore, the Respondent MPCB to explain as to why as per the then prevailing Rule, which says that in case there is no demarcation of the Eco- sensitive area by a Notification, the area of 10 Kms from the periphery of Sanctuary would be treated to be Eco-sensitive zone, would not be applicable to the present case." In this regard, it is submitted by the answering respondent that the Central Government had issued the guidelines for declaration of eco-sensitive zone around National Park Wildlife Sanctuaries on 09.02.2011 to all the States and requested to forward site specific proposals for declaration of eco-sensitive zone around such parks and sanctuaries. As per these guidelines, certain activities within eco-sensitive zone were also prohibited, but it may be noted that those were only guidelines issued by the Central Government through the Deputy Inspector General of Wildlife Department and were not a notification. Further it is mentioned that by virtue of notification dated 11.02.2020, the Central Government, in exercise of powers conferred by sub-section (1) and clause V and XIV of Sections 2 and 3 of Section 3 of the Environment (Protection) Rules, 1986, has declared/notified an area to an extent varying from 0 mtrs to 400 mtrs around the boundary of Great Indian Bustard Wild Life Sanctuary in Ahmednagar and Solapur districts of the State of Maharashtra as the [NPJ] Page 19 of 30 eco-sensitive zone. By this notification, the boundary described by the GIB Wildlife Sanctuary and its eco-sensitive zone was specified. This declaration was done for the first time which makes it clear that prior to that, no land was notified as eco-sensitive in the GIB Wildlife Sanctuary. Respondent No.11 - Industry applied for Consent to Establish for 26 MW Co-generation Plant on 01.03.2018, which was approved in the meeting of Consent Appraisal Committee (CAC) held on 18.05.2018, subject to the condition that the Industry shall not take any effective steps for implementation of the project without obtaining EC as per EIA Notification, 2006 and amendments thereto. As per Para 2 of EIA Notification dated 14.09.2006, the effective steps would include starting of any construction work or preparation of land by the project management. However, it is clarified by the MoEF vide Office Memorandum (OM) dated 19.08.2010 that fencing of the site to protect it from getting encroached and construction of temporary shed for the guard and acquisition of land shall not be treated as an effective steps. The answering respondent issued direction for stoppage of work of 26 MW Co-generation Plant vide letter dated 19.01.2019 as the Industry i.e. respondent No.11 had completed more than 50% work of installation of the said Co-generation Plant without prior EC. The answering respondent also forfeited the Bank Guarantee of Rs.10 lakhs for violation of conditions of Consent to Establish. The EC was granted by the Environment Department of State of Maharashtra vide letter dated 11.09.2019 to respondent No.11, which was brought to the notice by the Joint Committee in its report dated 06.03.2020. The answering respondent granted Consent to Establish on 18.05.2018 to respondent No.11 prior to Notification dated 11.02.2020, subject to certain terms and conditions and thereafter, it granted first Consent to Operate on 28.01.2021 to respondent No.11 after issuance of the EC dated [NPJ] Page 20 of 30 11.09.2019 and that of notification dated 11.02.2020. Copies of the Consent to Establish and Consent to Operate have been annexed as Annexure-I and Annexure-II, respectively.
17. The stand taken by respondent No. 8 - Chief Conservator of Forests (Wild Life), respondent No. 9 - Deputy Conservator of Forest and respondent No. 10 - Range Forest Officer (Territorial), vide their affidavit dated 23.09.2023 is that the averments made in this affidavit are based on the Joint Committee Report, which verified the available documents and record, which have been reproduced by us while dealing with the Joint Committee Report, hence they are not being re-produced here again. With respect to the division of old Survey No.99 of village Limpangaon, Taluka Srigonda and the new survey number being allotted, the same facts have been mentioned in this affidavit, which we have already taken into consideration while dealing with the affidavit of respondent Nos.5 and 6 i.e. the District Collector, Ahmednagar and Sub- Divisional Officer, Shrigonda. It is also reiterated by these respondents that eco-sensitive zone of GIB Wildlife Sanctuary in the range of 0 to 400mtrs was declared on 11.02.2020 as per which the project does not fall with the eco-sensitive zone. Further it is mentioned that eco-sensitive zones are not meant to hamper the day-today activities of local people but are meant for protected areas and refine the environment around them. As per the guidelines for declaration of eco-sensitive zone around protected area, regions providing connectivity and ecologically important patches as well as crucial for landscape linkage, if present around the protected area will be considered within eco-sensitive zone (ESZ). The ESZ may not be uniform all around and it could be variable in width and extent. As per the guidelines dated 09.02.2011, issued by the MoEF, the eco-sensitive zone around the National Park and Sanctuaries is to create some kind of "Shock Absorber" for the protected areas. They would also [NPJ] Page 21 of 30 act as a transition zone from areas of high protection to areas involving lesser protection. It has been decided that the National Board for Wildlife would regulate the activities in the eco-sensitive zone rather than prohibit them, unless otherwise is required. The revenue authorities are dealing with the subject land which prima facie is found to be forest land for which the revenue department has requested the Government for grant of permission for revision of the said land.
18. The applicant has filed affidavit-in-rejoinder dated 24.09.2020 against the reply of respondent No.11 dated 31.08.2019, wherein it is submitted that respondent No.11 has wrongly mentioned in paragraph Nos.1 to 3 of their reply that the applicant has stated that Co-generation Plant is situated in Survey No.51/1. In this regard, it is submitted that the applicant has categorically pleaded in Original Application that the Co-generation Plant is situated in Gut No.52/2. Gut No.52/1 is a reserved forest where there is illegal exchange of land made, whereas Gut No.52/2 is eco-sensitive zone where Co-generation Plant is established. The applicant has reiterated his version as stated in the Original Application and has denied the averments made by respondent No.11 in their affidavit. Most of the contents of this rejoinder are nothing but repetition, hence we do not deem it appropriate to reproduce them herein again.
19. The applicant has also filed objection dated 11.12.2020 against the Joint Committee Report, wherein it is submitted that it is clear from the record that 26 MW Co-generation project of respondent No.11 was granted Consent to Establish on 18.05.2018 and that the project is at a distance of 8.5 kms from GIB Bird Sanctuary. So, on 18.05.2018, the said project was within the eco-sensitive zone of the GIB Bird Sanctuary and was to be governed by the guidelines dated 09.02.2011 issued by the MoEF. Further it is mentioned that the order dated 04.12.2006 of the [NPJ] Page 22 of 30 Hon'ble Apex Court in Goa Foundation Vs. Union of India, Writ Petition No.460 of 2004, mandates that the project proponent must seek prior environmental clearance from Standing Committee of National Board for Wildlife before seeking environmental clearance as per EIA Notification, 2006. Even otherwise, as per Para 2 of the EIA Notification 2006, the power plant of more than 25 MW needs prior environmental clearance from the Central Government, if the project falls wholly or in part within 10 kms from the boundary of the protected area, to hold that the project does not fall within eco-sensitive zone. (We find that in Para 2 of the said EIA Notification, there is no such stipulation as mentioned in this paragraph by the applicant, rather we find that the Thermal Power Plant of less than 50 MW and equal or more than 50 MW capacity would be covered in "B" category project, which needs prior environmental clearance from SEIAA and not from the Central Government, as the said category project is covered in Schedule-I(D) of the Schedules to EIA Notification, 2006). According to the applicant, it is apparent that the said Co-generation Plant set up by respondent No.11 is without complying with the law in force at the relevant time and that the Project Proponent cannot be benefitted by applying retrospectively the Notification dated 11.02.2020, hence, respondent No.11 cannot be allowed to proceed with the said project, which was set up in violation of the laws in force at the relevant time. The said project was started on 18.05.2018 i.e. almost two years prior to issuance of Notification dated 11.02.2020, which fact has been ignored by the Joint Committee.
20. With respect to the exchange of forest land of the GIB Bird Sanctuary to respondent No.11 in contravention of the provisions of the Forest Conservation Act, 1980, it is submitted that findings given by the Joint Committee in para (iii) of the report are not clear as to what steps would be taken up by the respondent Authorities. From the findings of [NPJ] Page 23 of 30 the Joint Committee, there is no manner of doubt in the present case, that 55.90 Hectare "Reserved Forest" land is acquired by respondent No.11 in contravention of the Forest Conservation Act and Rules. The Hon'ble Supreme Court in the matter of A. Chowgule and Co. Ltd. Vs. Goa Foundation and Ors.; 2008(12) SCC 646, has held, "for the diversion of any forest land and its use for some other purpose, prior approval from Central Government is required and a lease obtained otherwise will be null and void." In view of above, the said land requires forthwith to be handed over back to Forest Department as per law and that the finding of the Joint Committee report in paragraph No.(i) needs to be rejected and that of paragraph No.(iii) needs to be accepted.
21. The applicant has filed rejoinder to the additional affidavit dated 14.11.2021 filed by respondent No.11, wherein all the averments made in respondent No.11's affidavit are stated to be false and misleading and the averments made by the applicant in their Original Application have been re-asserted.
22. On the basis of above pleadings of the parties, following issues are framed to be decided by us :
Issues :
(i) Whether the Consent to Establish dated 18.05.2018, which has been prayed to be declared illegal, for construction of 26 MW Co-
generation Power Plant by respondent No.11 on Gut No.52/2 of village Limpangaon, Taluka Shrigonda, District Ahmednagar is in contravention of the Forest Conservation Act and the Guidelines dated 09.02.2011 issued by MoEF ?
(ii) Whether the Mutation Entries, contained in Annexure-G to the application, are illegal and contrary to the Forest Conservation Act and hence, need to be quashed ?
[NPJ] Page 24 of 30
(iii) Whether the land to the extent of 36 Hectors of Gut No.52/1 of village Limpangaon, Taluka Shrigonda, District Ahmednagar needs to be handed over to the Forest Department ?
Findings :
Issue No.(i) :
23. As per this issue, we have to decide as to whether the Consent to Establish dated 18.05.2018, which has been prayed to be declared illegal, for construction of 26 MW Co-generation Power Plant by respondent No.11 on Gut No.52/2 of village Limpangaon, Taluka Shrigonda, District Ahmednagar is in contravention of the Forest Conservation Act and the Guidelines dated 09.02.2011 issued by MoEF ? From the Joint Committee Report, against which the applicant has already filed objections which we have dealt with above, wherein the applicant has mainly raised objection to the effect that the Joint Committee has failed to appreciate that the Consent to Establish the Co-generation Plant was granted in the year 2018, while the Notification declaring eco-sensitive zone of the Great Indian Bustard (GIB) Bird Sanctuary dated 11.02.2020 is of subsequent date, which lays down the extent of eco-sensitive zone as 0 to 400 mtrs and hence, it is concluded by the Joint Committee that the project in question does not fall in eco-sensitive zone. The Co-generation Plant came to be established in the year 2018 and the Notification was issued by the MoEF on 11.02.2020, which should not have been relied upon by the Joint Committee and that the benefit of that Notification cannot be extended to respondent No.11 retrospectively. The objection raised by the applicant to this extent is found to be valid by us also, but the Joint Committee has clearly stated in its report that respondent Nos.3 and 4 - MPCB had granted Consent to Establish to respondent No.11 for installation of 26 MW Co-generation Plant on Gut No.52/1 of village [NPJ] Page 25 of 30 Limpangaon, Taluka Shrigonda, District Ahmednagar on certain conditions that it shall not take effective steps for implementation of the project without obtaining prior environmental clearance in accordance with EIA Notification, 2006 and amendments thereto and that the said Industry would also submit Bank Guarantee of Rs.10 lakhs, having validity upto obtaining of EC and first Consent to Operate from the MPCB. The MPCB had also issued directions for stoppage of the work of the said Plant vide letter dated 19.01.2019 against the Industry as it had completed its 50% work of installation of Co-generation Plant without obtaining prior EC. For that reason, the MPCB had also forfeited the Bank Guarantee of Rs.10 lakhs vide letter dated 19.01.2019 for violating the terms and conditions of Consent to Establish for the said Plant. The Board had also issued a show-cause notice to respondent No.11 for refusal of the first Consent to Operate for the said project on 24.12.2019 due to violation of the conditions of Consent to Establish and violations to comply with the directions of stoppage of work, for which the Board had issued a direction to respondent No.11 to deposit Environment Damage Compensation (EDC) of Rs.69,90,000/-. Annexure-N to the said Joint Committee Report is the show-cause notice issued by the Board to respondent No.11 directing it to deposit an amount of Rs.69,90,000/- as EDC, which was assessed on the principle "Polluter Pays" as per order dated 28.08.2019 passed by the National Green Tribunal, for the period from 19.01.2019 (the date when the stoppage of work order was issued) to the date of obtaining the EC i.e. 11.09.2019 (total 233 days). Though the MPCB has not specifically mentioned as to on the basis of which guidelines/formula, that amount has been computed, we are of the view that it must have been done in accordance with the CPCB guidelines and that no objection appears to have been taken in this regard by any of the parties that the said calculation/computation has been wrongly done. [NPJ] Page 26 of 30
24. At this juncture, we may usefully refer to the report of the CPCB In- house Committee on "Methodology for Assessing Environmental Compensation and Action Plant to Utilize the Funds", which outlines a formula for imposing environmental compensation on industrial units for violation of directions issued by regulatory bodies listing the instances for taking cognizance of cases fit for violation and levy environmental compensation. The same has also been referred by this Tribunal in order (paras 14 to 16) dated 28.08.2019 in the matter of Original Application No.593/2017 in the Paryavaran Suraksha Samiti & Anr. Vs. Union of India & Ors. The instances considered for levying Environmental Compensation (EC) in the said report are :
"a) Discharges in violation of consent conditions, mainly prescribed standards / consent limits
b) Not complying with the directions issued, such as direction for closure due to non-installation of OCEMS, non-adherence to the action plans submitted etc.
c) Intentional avoidance of data submission or data manipulation by tampering the Online Continuous Emission / Effluent Monitoring systems.
d) Accidental discharges lasting for short durations resulting into damage to the environment.
e) Intentional discharges to the environment -- land, water and air resulting into acute injury or damage to the environment.
f) Injection of treated/partially treated/ untreated effluents to groundwater.
The formula takes into account of number of days violation took place, pollution index of unit, scale of operation, location factor based on population and an amount factor in Rupees. Environmental Compensation (EC) in Rupees as mentioned in the aforesaid CPCB report for Construction on Plot A = PI x N x R x S x LF Where, [NPJ] Page 27 of 30 PI = Pollution index of the project. Considering the project under Orange category as per modified directions no. B-29012/ESS/(CPA)/2015-16 dated07/3/2016, PI = 50 N = Number of days violation took place.
R is a factor in Rupees, which may be a minimum of 100 and maximum of500. The aforesaid report also suggests to consider R as 250, as the Environmental Compensation in cases of violation. Hence, R = 250. S = Factor for the scale of operation. As per CTE issued by MPCB, it is large scale industry (LSI). The unit being LSI, S=1.5 LF = Location factor, since the population is more than 1 Million but less than 5 Million, LF=1.25
25. We find on our own that after applying the CPCB formula for assessing the EDC amount, the amount calculated by the MPCB is found to be almost correct. Respondent No.11, in its affidavit dated 11.01.2021, has also clearly stated that the said amount has been paid by them under protest. Since we find that the said amount, which was calculated for the violation committed by respondent No.11 by initiating setting-up of the Co-generation Plant in question soon after the Consent to Establish was granted on 18.05.2018 without obtaining prior EC as per the terms and conditions, the MPCB appears to have rightly imposed EDC of Rs.69,90,000/- upon respondent No.1 for the said period of default, because subsequent to that date i.e. 19.01.2019, it is admitted by the applicant as well, that on 11.01.2020, the eco-sensitive zone was determined by the Central Government by the said Notification to the extent of 0 to 400 mtrs and by that standard, the land where this Co- generation Plant has been set up, would fall outside the eco-sensitive zone area. It is also recorded in the Joint Committee Report that this Co- generation Plant is situated in in Gut No. 52/2, which is deforested land. [NPJ] Page 28 of 30 In view of the deposit of the EDC amount by respondent No.11, we are of the view that the prayer made by the applicant to declare the Consent to Establish dated 18.05.2018 to be illegal, has become infructuous. We may also take into consideration this fact because subsequently, the EC was also granted on 11.09.2019. In view of above, we hold that this issue needs to be decided in negative to the effect that the permission (Consent to Establish) granted on 18.05.2018 cannot be held to be illegal. Issue Nos.(ii) and (iii) :
26. With respect to issue that whether the Mutation Entries with respect to the Forest area of Survey No.52/1 of village Limpangaon, Taluka Shrigonda, District Ahmednagar, which has been allowed to be exchanged by other land in favour of respondent No.11, need to be declared illegal and quashed, we may note here that from the affidavit of respondent Nos.5 and 6, it is clear that though it is noted in that affidavit by the revenue Authorities that it appeared to them that the grant of land and exchange of land were in contravention of the provisions of the Forest Conservation Act, 1980, but its revision is now being pursued before the State Government, which is going on. Therefore, we are not inclined to entertain this aspect of the dispute. We are also of the view that whether the land has been converted into a non-forest and the legality or illegality thereof may be got determined before the appropriate forum by the party aggrieved. Here, we are inclined to consider only whether the Plant in question was hit by the guidelines which are prescribed for eco-sensitive zone area. We also render our finding in that regard that even the Joint Committee, with which we are in full agreement, does not state that the Plant in question is not located in Gut number which is inside the eco-
sensitive zone area of GIB Wildlife Sanctuary. Accordingly, Issue Nos. (ii) and (iii) are not being disposed of by us. No findings are rendered on these issues.
[NPJ] Page 29 of 30
27. In view of our finding on Issue No.(i), this Original Application is disposed of.
28. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM JANUARY 10, 2024 OA NO.84/2019(WZ) npj [NPJ] Page 30 of 30