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Judgment
This case has been filed by the Applicant expressing concern with regard to large scale illegal coal mining in the Dehing Patkai Elephant Reserve particularly in Saleki Proposed Reserve Forest, Tinsukia district, Assam, by the Respondent No. 8, North-Eastern Coalfields (NEC), which has been operating the Tikak Open Cast Mining Project. It is stated that mining is being carried out without obtaining clearance under Section 2 of the Forest (Conservation) Act, 1980. By referring to Form A/Part I submission of proposal seeking approval of the Central Government under Section 2 of the Forest (Conservation) Act, 1980 by the NEC dated 28.07.2012, it is stated that the NEC had applied for renewal of the mining leases and clearance under the Forest (Conservation) Act, 1980 in the year 2003 but had admittedly not been received. Application was thus resubmitted for fresh proposal for prior approval under Section 2 of the Forest (Conservation) Act, 1980 for period 2003-2023 for a period of 20 years including ex-post facto approval for the period 2003-2012. The further contention is that even when the application for the clearance had been pending and clearance was yet to be granted, the respondent NEC continued with the mining activity.
According to the Applicant, Office Order dated 03.06.2020 of the NEC substantiates the fact that illegal mining had been continuing in the area, although the Margherita Coalfield was suspended temporarily w.e.f. 03.06.2020. Further that the Office Order also unmistakably sets out the fact that disposal of the existing coal stock would have to continue till it was exhausted meaning thereby that the NEC was also disposing off of the illegally mined coal.
Having regard to the facts and circumstances of the case, a Committee was constituted by the Tribunal comprising of (i) the CPCB; (ii) State Pollution Control Board; (iii) the State Environment Impact Assessment Authority (SEIAA), Assam; (iv) the PCCF (HoFF), Assam and, (vi) an expert from the IIT, Guwahati.
The committee was directed to visit the spot and verify on the factual aspects set out in the application and to submit a report. The State PCB was directed to act as the nodal agency. Further, it was directed that if there were infractions committed as alleged, appropriate action be taken in accordance with law against the violators.
Respondent no. 3, the State of Assam has filed I.A. No. 48/2020 to place on record the fact that a PIL (Suo Moto) 2/2020, along with PIL 29/2020, PIL 30/2020 and PIL 36/2020 was pending before the Hon'ble Gauhati High Court in which the issues raised in the present application were also the subject matter under consideration in those cases.
It is further contended that a One Man Enquiry Commission had been constituted by the State Government vide notification dated 20.07.2020 under section 3 of the Commission of Inquiry Act, 1952 for enquiry into the alleged illegal mining activities being carried out in the Dehing Patkai Elephant Reserve, Saleki Proposed Reserve Forest by Coal India Ltd. and its subsidiaries i.e. North Eastern Coalfields, arrayed as Respondent No. 8 in the present Application. As per the terms of reference the One Man Enquiry Commission is required to enquire about the alleged violation of various environmental laws and rules including the Forest (Conservation) Act, 1980.
Our attention has been drawn to the notification dated 18.07.2020 appointing the One Man Enquiry Commission which has been filed along with M.A. and the relevant Term of Reference made to the Commission. The relevant portion of the latter referred to by the Learned Counsel inter alia reads as follows:-
"1. To enquire as to whether since the year 2003 till date, any illegal activities have been undertaken by any organization or individual in and around Saleki Proposed Reserved Forest (PRF) under Digboi Forest Division, including the Tikok Open Cast Project of Coal India Limited (North Eastern Coalfields).
To enquire and identify organization (s) responsible for undertaking such illegal mining activities if any, in and around the aforesaid forest area.
To enquire into the manner of processing of any application, if made, by any organization or individual for grant of mining lease in the aforesaid forest area during the period from 2003 onwards, and also to enquire as to whether grant of any mining lease during the said period was in compliance and in conformity with the provisions of applicable laws i.e., the Mines and Minerals (Development & Regulation) Act, 1957, the Assam Forest Regulation, 1891, the Forest (Conservation) Act, 1980, the Environment (Protection) Act, 1986, the Wildlife (Protection) Act, 1972 and other applicable Laws and Rules.
To enquire and assess, the extent of illegal mining activities, if any, in and around the aforesaid forest areas and also the impact of such activities, if any, on the flora and fauna generally found in and around the aforesaid forest area.
To enquire into and fix responsibility upon government officials of any department found involved in commission of any illegal mining or any other illegal activity in commission or abetment of the aforesaid forest area.
To enquire into and suggest measures for recovery of loss, if any, caused due to unlawful coal mining activity under the jurisdiction of Digboi Forest Division, either in the form of rent, royalty, penalty, land arrears or tax in terms of Section 21(5) of the Mines and Minerals (Development & Regulation) Act, 1957 or under any other law in force during commission of offence of illegal mining or commission of any other illegal activity.
To enquire into and suggest measures to be taken for restoration, rehabilitation and reclamation of areas damaged due to illegal coal mining and ancillary activities, if any, and approximate amount of cost to be incurred for such purpose.
To enquire into any other prohibited regulated activities inside all forests (RF/PRF) and wildlife sanctuary under Digboi Forest Division and to suggest remedial measures to be taken to check such activities.
The Commission is also hereby vested with the additional powers as mentioned in Section 5(2) to 5(5) of the Commission of Inquiry Act, 1952. For the purpose of conducting any investigation pertaining to enquiry, the Commission is vested with the powers conferred under Section 5(A) of the Commissions of Inquiry Act, 1952. Sri P.N. Goswami, Advocate & Standing Counsel, Environment & Forest Department shall represent the Government of Assam before the Commission. The Commission shall submit its report within a period of 6 (Six) months from the date of issuance of this notification."
Mr. Nalin Kohli, Learned Counsel for the State of Assam would submit that in view of the facts and circumstances, continuance of the present proceedings instituted later in the point of time would, therefore, amount to parallel proceedings being held on the same subject matter before two different forums.
Upon perusal of the records and the documents and, after hearing the Learned Counsel for the parties, we are inclined to agree with Mr. Kohli and find substance in his submission. Although Mr. Sanjay Upadhaya, Learned Counsel for the Applicant, strongly urges that there ought to be no impediment in the Tribunal continuing with the present case, we are of the considered opinion that it would not be appropriate for the two forums to consider the same subject matter as it may result in conflict of decisions.
In view of above this Application stands disposed off without prejudice to the rights and contentions that may be available to the applicant which he may raise in the proceedings that is presently on before the High Court, if so advised.