National Green Tribunal
Charoen Pokphand (India) P. Ltd vs Santosh Pohare Adv on 12 March, 2014
BEFORE THE NATIONAL GREEN TRIBUNAL
(WESTERN ZONE) BENCH, PUNE
............
APPLICATION No. 5/2014 (WZ)
CORAM:
1. Hon'ble Shri Justice V.R. Kingaonkar
(Judicial Member)
2. Hon'ble Dr. Ajay A. Deshpande
(Expert Member)
B E T W E E N:
Charoen Pokphand (India) Pvt. Ltd.
Branch Office at Faith Center,
Office No.201, 2nd Floor, Plot No.82,
Survey No.232, Sakorenagar,
Airport Road, Viman Nagar,
Pune-411 014.
Through Authorized Signatory
Mr. Venkata Ramana Gullanki,
Age 39 years, Occ: Service,
R/o Vadagaon Sheri, Pune-411 014.
.........Applicant
AND
1. The State of Maharashtra,
Newasa, Tlauka Newasa,
District Ahmednagar PIN-414603.
2. Village Officer @ Talathi,
Suregaon (Ganga), Taluka Newasa
District Ahmednagar PIN 413703.
.......Respondents
1
(J) Appln. No.5 of 2014( WZ)
Counsel for Applicant(s):
Mr. Santosh Phare
R.H.Gandhi
Amol S. Sawant.
Counsel for Respondent(s):
H.P.Ujagare, Tahasildar Newasa.
Mr. Vikramsingh P. Patil for Intervener
Date: March 12th, 2014
ORAL JUDGMENT
P.B:
1. By this Application, Applicant has challenged order dated March 30th, 2013, passed by Respondent No.1-Tahasildar, giving direction to stop the construction of hatchery/poultry breeding farm in the agricultural land Survey Nos.45/1,45/2 and 45/3, admeasuring 6 Ha 88R, situated at village Suregaon (Ganga), taluka Newasa, district Ahmednagar.
2. The Applicant claims that a poultry and breeding farming unit was sought to be established in the said agricultural land and therefore, NOC was obtained from the Village Panchayat, Suregaon (Ganga). The Applicant further claims that a certificate from Town Planning department was also obtained and likewise NOC from the Directorate of Industries was duly obtained. After due compliances, the Applicant commenced construction activity at the site. 2 (J) Appln. No.5 of 2014( WZ)
Without any substantial reason, some of the villagers raised objections and therefore, the Tahasildar, made inquiry. By the impugned order, the Tahasildar, held that "the Applicant had not deposited the amount of fees as directed for the purpose of conversion of agricultural land to Non-agriculture use". He also recorded that the project was likely to cause foul smell in the area which will adversely affect the health of residents of the villager. The Tahasildar further held that the project was within eco sensitive zone and as such, could not be permitted. Thus, the Tahasildar, rejected the request of the Applicant and directed the land to be taken into custody under Section 88(R)of the Maharashtra Land Revenue Code, for two reasons, namely, (1) that proposed project is within eco sensitive zone of Jayakwadi Bird Sanctuary and, (2)because it is likely to endanger human health.
3. By filing Writ Petition No.5855 of 2013, the Applicant challenged impugned order dated March, 30th 2013, passed by the Tahasildar, before the Hon'ble High Court of Judicature at Bombay, Bench at Aurangabad. By order dated December 10th 2013, learned single Judge of the High Court Bench at Aurangabad, (Hon'be Shri.Justice Gangapurwala) 3 (J) Appln. No.5 of 2014( WZ) directed the Applicant to approach this Tribunal, on the ground that the issue involved is substantially related to environment, on which ground the impugned action has been taken by the Tahasildar. It is in the wake of such development that the Applicant has filed the present Application.
4. We have issued Notices to the Respondents. The Tahasildar, Newasa, had appeared in person. He filed reply affidavit dated February 10, 2014. Affidavit of Shri. Arun Ujagare, Tahasildar Newasa, purports to show that the action has been taken under the provisions of the Maharashtra Land Revenue Code,1966, inasmuch as the industrial activity is not permissible under Section 117(1) of the said Code in the Agricultural land. It is averred that the Applicant has violated environmental norms and moreover, object of the Applicant is to indulge in trading, which is unconnected with the agricultural land. The Tahasildar in his affidavit has stated as follows: "
"the company have started NA use land, without permission, denied to pay NA assessment. This is only main object of the order, therefore, say of the Applicant in this part is not correct."
5. In the meanwhile, third party by name Badrinath Shinde has filed Intervention Application for intervention through Mr. Vikramsingh Patil, Advocate. 4 (J) Appln. No.5 of 2014( WZ) According to the intervener, the Applicant has projected wrong facts, in order to go ahead with the project, which is improper and illegal.
6. We have heard learned Counsel for the Applicant. The Respondent-Tahasildar is absent today, nor any one has represented him. We have also heard learned Counsel Mr. Vikram Patil, for the proposed intervener.
7. The material points which need to be determined in the present matter are:
(1) Whether impugned project activity falls within eco sensitive zone of Jayakwadi bird sanctuary and is prohibited under the Law?
(2) Whether impugned activity of poultry
farming
unit is shown to be detrimental to the
environment and is likely to cause
substantial damage to health of the
villagers in the vicinity or otherwise likely to cause adverse impact on the environment and ecology of the area?
8. We may take note of the fact that for the present, the Applicant is only constructing structure of poultry farm/breeding project. It appears that the Village Panchayat has given NOC for the project activity. It further appears that the Village Panchayat has also given NOC for construction of infrastructure. The Applicant is a private company, dealing in the 5 (J) Appln. No.5 of 2014( WZ) business of poultry farming and breeding. The Applicant has already established a similar poultry breeding farm at village Supa. The only apprehension expressed by the villagers of Suregaon, was that the project was likely to cause health hazard. This allegation is not substantiated by any authentic record. The Tahasildar also does not state in the impugned order that any particular data was made available for the purpose of reaching such conclusion that the poultry project was likely to create health hazard. As stated earlier, the affidavit of the Tahasildar categorically shows that the impugned order was rendered only because the Applicant- company, has started NA use of the land without due permission and denied to pay NA assessment amount. It is stated by the Tahasildar that main object of impugned order is to ensure that construction work shall not be allowed without due compliances of procedure set out under the Maharashtra Land Revenue Code, 1966. The Counsel for Applicant makes categorical statement that the amount has been paid with the Authority though under protest and, therefore, there is no requirement of any further compliance as such, in this behalf. Obviously, impugned order is not issued because of any serious environmental objection or reason.
6 (J) Appln. No.5 of 2014( WZ)
9. This takes us to purport of the environmental guidelines issued by the MPCB, vide communication dated September 29, 2011. Perusal of guidelines indicate that activity of poultry farm, like egg processing, hatchery, nursery growing of birds, is to be exempted from consent management point of view, considering law of Environmental pollution potential, however, for disinfection work within workplace area disposal of dead birds etc. guidelines given by the Animal Husbandry department, must be followed. It appears that poultry farming activities are engaged in dressing, slaughtering are considered in RED category and as such, required to be located at suitable distance, away from the human habitats, as well as appropriate distance from water body, to avoid polluting infection. Consent sought by the Applicant is for commencement of breeding farm and poultry activity. The activity is yet to commence. In case any activity of slaughtering or dressing is undertaken by the Applicant, without following regular norms, the third party i.e. Intervener is at liberty to take objection and file proper proceedings, as may be permissible under the Law.
10. We may observe, at this juncture, that there is nothing on record, to show that impugned activity falls within declared eco sensitive zone of bird sanctuary. 7 (J) Appln. No.5 of 2014( WZ) In case, third party is having any record of authentic nature to show that activity of the Applicant falls within eco sensitive zone, then third party may take appropriate action for which liberty is granted. Once it is noticed that activity undertaken by the Applicant does not prima facie require consent/approval from the Regulatory Authority, like Tahasildar, except and save, observance of procedure for conversion of land use, in our opinion, the Tahasildar, has no legal authority to pass impugned order on the ground that project is likely to cause adverse impact on the health of residents of the vicinity, or is otherwise illegal, because it falls within eco sensitive zone of bird sanctuary. In other words, the Tahasildar exceeded his jurisdiction in passing such order.
11. Considering foregoing reasons, we are of the opinion that the impugned order is unsustainable and is bad in law. Hence, we allow the Application and hold that the impugned order is liable to be set aside. Accordingly, the Application is allowed and the impugned order is quashed. We direct, however, that the Applicant shall commence impugned activity only if environment norms are fulfilled and the guidelines of MPCB, shall be strictly followed for the purpose of commencement of activity of the poultry farming/breeding as may be undertaken by the 8 (J) Appln. No.5 of 2014( WZ) Applicant. In case, any other activity is undertaken by the Applicant, the intervener is at liberty to take appropriate action as indicated in this Judgment. This option is kept open in view of the request made by the intervener and Intervention Application is accordingly disposed of. The main Application is allowed in above terms. No costs.
.............................................,JM (Justice V. R. Kingaonkar) ...........................................,EM (Dr. Ajay.A. Deshpande) 9 (J) Appln. No.5 of 2014( WZ)