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Judgment
This is an application filed under Sections 14 and 15 of the National Green Tribunal Act, 2010 (for short, NGT Act). The applicant is allegedly a Public Trust. The application is filed through its founder member. The applicant seeks revocation of the Environmental Clearance (for short, EC) dated 27th February, 2009, granted to Respondent No. 3 (M/s Minerals & Metals) for its iron ore open mine situated at Village Kalane, Taluka Dodamarg (District Sindhudurg) and for restoration of the environment of the area by removal of mining waste dumped at adjoining agricultural lands of the villagers.
Briefly stated, case of the applicant is that the Respondent No. 3 has violated conditions of the Environmental Clearance (EC) dated 27.2.2009. The mining area of 32.25 hac. is permitted for conducting the mining activity by the Respondent No. 3. The Respondent No. 3, however, encroached on the adjoining agricultural land as well as common land of the villagers. The Respondent No. 3 also has dumped the mining waste on adjoining land bearing Survey No. 60. With the result, about 10-12 Acres of that land has been buried under the mining waste. The Cashew plantation along with species of trees like Ain, Asan, Nana, Sesum and Kindas are also buried under the dumped mining waste. The Respondent No. 3 is using the Government sanctioned road for transportation of the ore extracted from the mine. A large number of uncovered heavy vehicles are plied on that road. The traffic of such heavy vehicles causes Air and noise pollution in the area. The mining operation is being undertaken without taking protection to avoid spillage, avoid overloading of trucks, and to provide a wooden side board of at least 9" height to cover the transportation vehicles by means of tarpaulin. Besides, silt from the mining area is drifted to old river of the village which flows about 100 meters away from the mining area. The Respondent No. 3 did not construct protection wall around the mining area.
The applicant further alleges that though several complaints were made by the villagers to various authorities yet the Respondent No. 3 i.e. project proponent continued to commit breach of the conditions of the EC. The site inspection carried out by Deputy Director, Directorate of Geology and Mining during period between 27.12.2011 to 29.12.2011 revealed that the mining activity was being carried out beyond the leased area. The Respondent No. 3, due to dumping of the solid waste, has overburdened the adjoining agricultural lands. The mining activity is being carried out without complying conditions of the EC. The air and noise pollution caused by the mining activity is hazardous to health of the villagers. The Respondent No. 3 has destroyed agricultural land of the farmers and also caused damage to the ecology and environment of the area. The applicant further says that by applying precautionary principle the harm caused to the environment is required to be prevented by revocation of the EC dated 27.2.2009 and also by restoration of the environment. Moreover, the Respondent No. 3 needs to be mulcted with liability to pay compensation to the affected villagers.
The application is resisted by the Respondent No. 3 (project proponent) on various grounds. According to the Respondent No.3, the application is filed with mala fide intention to obtain undue and illegal benefits from him. The application is barred by limitation. The application does not raise any serious environmental issue. The Respondent No. 3 also challenges locus standi of the applicant on the ground that the applicant -Trust is having activities at Pen, a Taluka place which is about 500 Km from Dodamarg Taluka, where the mining activity is going on. Moreover, the applicant is not a registered Trust as alleged by it. The Respondent No. 3 alleges that the application is filed without any supporting evidence and is actuated by malice. The Respondent No. 3 alleges that one Ganpat Dattatray Desai is at the back of the litigation, initiated for the purpose of blackmailing the Respondent No. 3 and out of vengeance. The Respondent No. 3 alleges that said Ganpat Desai and Mansingh Desai are accused persons in Criminal case No. 18/2009 registered at Dodamarg Police Station for offences under sections 302, 143, 147, 148, 149, 324, 323, 506 and 427 of the Indian Penal Code (for short, IPC). They alongwith other accused had hatched up conspiracy to murder one Yusuf Shaikh, who was employed as security guard at the site of the mining of the Respondent No. 3. The Respondent No. 3 further alleges that the mining waste is not dumped anywhere except on part of Survey No. 60, hissa No. 1/1-1/5. The owner of the said land has entered in to an agreement whereby the Respondent No. 3 has been allowed to stack the waste material on that land which is uncultivable and barren. The Respondent No. 3 further submitted that he has already taken required permission from the Revenue Department for converting that land to non-agricultural use. The Respondent No. 3 denied that the mining activity has caused harm to the ecology and environment. It is further denied that the EC conditions have been violated. On these premises, the Respondent No. 3 sought dismissal of the application.
Considering the pleadings of the parties, the following issues are formulated. We have recorded findings on these issues in the last paragraph of the Judgment.
The issues are as follows:-
Whether the applicant has locus standi to file the application, being aggrieved person within the meaning of Section 18?
Whether the Respondent No. 3 has expanded the mining activity by dumping the mining waste on adjacent land bearing Survey No. 60 and therefore has caused loss to 10-12 Acres area of agricultural lands, due to burial of plants like Ain, Asan, Nana, Sesum and Kindas which is loss to the ecology and environment?
Whether the Respondent No. 3 has caused Air pollution due to plying of trucks loaded with iron ore without taking proper precaution to avoid spillage?
Whether the Respondent No. 3 has caused water pollution by drifting the silt of the mine in the village river?
First of all, we shall examine whether the applicant has locus standi to file the application. For this purpose, it is necessary to refer Section 18 of the NGT Act. A person entitled to file application under Section 18, besides any aggrieved person as shown under Section 16 of the NGT Act, should fall within categories mentioned in Section 18 Sub clause (2). It is pertinent to note that Section 16 of the NGT Act deals with jurisdiction of the Tribunal to deal with appeals. The present application is filed under Section 14 & 15 of the NGT Act. Therefore, the applicant must show that he is the fit person to submit such an application.
It will be useful to refer Section 18 of the NGT Act. Section 18 reads as below:
Section 18 : Application or Appeal to Tribunal.
(1) "Each application under Sections 14 and 15 or an appeal under Section 16 shall be made to the Tribunal in such form, contain such particulars, and be accompanied by such documents and such fees as may be prescribed.
(2) "Without prejudice to the provisions contained in Section 16, an application for grant of relief or compensation or settlement of dispute may be made to the Tribunal by__
(a) The person, who has sustained the injury; or
(b) The owner of the property to which the damage has been caused; or
(c) Where death has resulted from the environmental damage, by all or any of the legal representatives of the deceased; or
(d) Any agent duly authorized by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be; or
(e) Any person aggrieved, including any representatives body or of the National Green Tribunal Act, 2010."
According to the applicant, the application can be filed by the applicant Trust which represents the affected agriculturists. It is the argument of Learned Counsel for the applicant that the applicant is "an aggrieved" person. It is argued that the applicant is an organization which takes care of the interest of agriculturists.
It is submitted by the Learned Counsel for the applicant that the applicant is a duly registered Trust and therefore is entitled to file such application because the mining activity of the Respondent No. 3 is detrimental to the interest of the adjoining land holders in particular and the villagers in general.
The applicant has placed on record copy of the resolution which authorises Vaishali Partil to take necessary steps in order to protect" Constitutional Rights of the farmers". Perusal of the copy of the resolution shows that address of the office of the organization is given as "ANKUR, Shankar Rama Complex, Chichpada Road near Govt. Hospital, Flat No. 102, First Floor, Pen, District Raigarh- Maharashtra. The copy of the resolution further shows that the applicant Trust is registered under the Mumbai Trust Act 1950, Vide Registration No. E-1890 (Pune). The Respondent No. 3 has filed on record copy of the Public Trust register maintained by Pune Division office in respect of the Trust No. 1890. It appears that said Trust is registered in name of Smt. Prabha Karandikar, Public Trust and the address of the Trust is different from that of the trust shown by the applicant. The Respondent No. 3 also has produced the extract of the registration book. The documents show that objects of the said Trust and Ankur Trust are different. That trust is not formed with an object to help the agriculturists. The applicant, however, has not filed any document to show the specific objects of the applicant Trust. What appears from the record is that "Ankur" is the trust registered as per registration E-1809 (Pune). It appears that Shri Raj Anthony is the person to whom the registration certificate was issued. The address of said trust (Ankur) is shown as "12 Pandurang Niwas, Alandi Road, Pune. We have no material before us to show that subsequently the address of said Trust was changed and the office was shifted to Pen- District Raigarh. We have also no material to show that said Trust (Ankur) was formed with an object to protect constitutional rights of the farmers. It goes without saying, therefore, that the applicant has no locus standi to file the instant application. Secondly, the address shown on the certificate of registration of the Trust and the Registration No. (E-1890) do not match with the description shown in the copy of resolution. The copy of the resolution shows that the Trust is registered vide No. E-1890(Pune). It is stated by Vaishali Patil in her affidavit that this is an inadvertent typographical mistake. Assuming, for sake of argument that it is a typographical mistake, then also without any supporting document it is difficult to say that the object of the applicant Trust is to ensure and protect welfare of the farmers.
Having regard to the Trust address shown on the copy of resolution, it is amply clear that that the office of the said Trust is at Pen (District -Raigarh). The mining activity of the Respondent No. 3 is at Village Kalane (District Sindhudurg). Judicial notice may be taken of the fact that Village Kalane is far away from Pen, may by around 300/400 Kms. We do not have any record which shows that the applicant Trust is authorized to protect rights of the farmers in all the districts, including District Sindhudurg. The farmers who are said to have been adversely affected by the mining activity have not come forward to file the application. It appears that the applicant has filed affidavits of Mansigh Desai and Ganpat Dattatray Desai. The Respondent No. 3 has filed copy of charge sheet in Sessions case No. 17/2010. It appears that both the above named persons, along with other accused persons, are facing prosecution for offences under Section 302, 143, 147, 148, 149, 324, 323, 506, 427 and 188 of the IPC. It appears that they allegedly committed murder of one security guard who was employed by a security agency, for the purpose of safeguarding the mining activity of the Respondent No. 3. It is, but natural that above persons have reason to grind axe against the Respondent No. 3. Both of them have not joined the application as applicants. However, they have filed affidavits in support of the application with certain oblique intention. In other words, the application is not filed with an intention to safeguard rights of the farmers. It appears to have been filed to retaliate the charges leveled against Ganpat Desai and Mansingh Desai. The application is of vindictive nature and filed at the behest of the above named persons. We are of the opinion, therefore, the that applicant has no locus standi to file this application. The Issue No. 1 is, therefore, answered in the negative.
The averments in the application show that the main issue projected by the applicant is in respect of alleged encroachment on the agricultural field of the farmers and the common land of the villagers. The exact words used by the applicant in the last sentence of paragraph 2 of the application may be reproduced as follows:-
"The main issue is that the project proponent has encroached upon the agricultural field of the farmers and other common land of the village. "
The application does not show, however, on which agricultural fields the project proponent has encroached. There is no map prepared by any authorized agency to show the alleged encroachments. The applicant could have filed copy of the measurement map prepared by the District Inspector of Land Records (DILR). The applicant has not obtained any such authentic record about the issue of encroachment. Moreover, the issue of encroachment is the lis between concerned private parties and the Respondent No.3. That cannot be an issue related to the environment, particularly, about adverse impact of the environment. Hence the so-called main issue stated in paragraph 2 of the application is without any substantial foundation as well as irrelevant.
Another contention of the applicant is that the project proponent (Respondent No. 3) has overburned a part of land Survey No. 60 by way of dumping mining waste thereon. It appears that the Respondent No. 3 has obtained a part of Survey No. 60 on basis of an agreement from Vinyak Patil i.e.Survey No. 60, hissa No. 1/1-1/A. It further appears that a part of Survey No. 60 is being used by the project proponent as per consent letter given by owner of Survey No. 60, hissa No. 1/5-1/31-1/33. The applicant on the other hand, has not proved that the Respondent No. 3 has dumped the mining waste on land of any other farmer. Nor there is any site inspection plan placed on record. On the other hand, the project proponent placed on record documents (Annexure R/3-5 and Annexure R/3-6) which go to show that he converted the agricultural lands for non- agricultural use prior to the alleged dumping of the mining waste on the part of Survey No. 60, bearing hissa No. 1/1-1/5. It appears that the Indian Bureau of Mines (for short, IBM) approved this modified plan vide letter dated 3-2-2011.
One of the contention of Learned Counsel for the applicant is that the Respondent No. 3 (project proponent) unlawfully expanded the mining activity. It is argued that approval of the IBM is of no avail. It is further argued that the Respondent No. 3 was not legally entitled to dump the mining waste on adjoining land because such an activity amounts to modification of the mining Plan, without any approval and EC of the MoEF. We do not agree. The use of the adjacent land with consent of the land owners for dumping of the mining waste cannot be termed as expansion of the mining activity or modification of the mining plan as such.
It appears from the record that the Respondent No. 3 has carried out certain excessive mining activity by way of extraction of the ore beyond the permissible limits. It appears that the District Collector has taken necessary action for recovery of the penalty and price of the ore illegally extracted from the mine in question. The issue is subjudice in the proceedings initiated by the District Collector under the Maharashtra Land Revenue Code 1966, and under Section 21 of the MMRD Act, 1957.
The applicant heavily relied upon report of Madhav Gadgil committee. The applicant also relied upon the inspection report of Deputy Director of Geology and Mining, Kolhapur. It appears that subsequently the Deputy Director of Geology and Mining issued letter dated 22.5.2011 whereby clarification is given to the effect that due to oversight the encroached area was shown as Survey No. 57/5 and the mining area was shown as Survey No. 57/1-4. The Deputy Director clarified the mistake. It is clarified that actually the mining area is Survey No. 57/1, 2, 3(P) comprising of 32.30 hectares. It is also stated that there is error in respect of alleged encroached area shown to be part of Survey No. 57/5 though, it is Survey No. 57/3-(P) and Survey No. 57/4(P). As stated before, the issue regarding so-called encroachment is not an environmental issue. It appears that the joint inspection Report of District Mining Officer, Deputy Director of Mining and Director of Mining is to the effect that the Respondent No. 3 extracted ore beyond the limits of the mining area, out of Survey No. 57/3 and 57/4. In case, the Respondent No. 3 has extracted more ore, the Competent Authority may take suitable action for recovery of the Net Present Value (for short, NVP) of such extracted ore. The Competent Authority may recover penalty from the Respondent No. 3. The Competent Authority may discontinue the license for operating the mine after giving notice to the Respondent No. 3.
The applicant made faint attempt to show that the Respondent No. 3 has overburned the adjoining land (Survey No. 60) by way of dumping the mining waste. The applicant has filed affidavits of Suresh Narayan Desai and Mansingh Desai. The affidavits of these persons are identical with each other. As stated before, they have some ill will against the respondent No. 3 due to the criminal prosecution. The applicant failed to establish that the respondent No. 3 overburned the adjoining lands. In our opinion, the application is filed without any scientific data or report of an expert like Government land measurer. Hence we have come to the conclusion that the applicant failed to prove the allegation in the context of over dumping and thereby causing loss to the agricultural produce or the trees. The map prepared on basis of Google map or the information by way of affidavits of interested persons cannot be treated as reliable and acceptable data. It is not proved that the Respondent No. 3 has caused Air and/ or noise pollution as alleged.
We deprecate the practice of filing such application in the form of P.I. L. We find that the applicant has no locus standi yet filed the application at the behest of disgruntled persons who did not wish to come forward as applicants. We however, do not think it proper to impose costs on the applicant because there appears extraction of more than permissible quantity of the ore from the leased mine. The Respondent No. 3 also acted unfairly and as such it would be proper to direct the parties to bear their own costs.
In view of the foregoing discussion, we are of the opinion, that the application is without merits. It is liable to be dismissed. We are further of the opinion that the issue regarding extraction of more quantity of ore in excess of the outer limit shown in the license will have to be kept upon. The other issues are answered in negative. The Competent Authority may take proper action against the Respondent No. 3 for recovery of the value of the ore extracted from the mine, beyond the permissible limits. In the result, the application is dismissed with no order as to costs.