Shri Vasant Krishnaji Vhatkar vs Union Of India

1 By this Application, the Applicant seeks two reliefs.

First, he seeks action U/s. 26 of the National Green Tribunal Act 2010 by initiating proceedings against the Ministry of Environment and Forest (Respondent) for non compliance of order passed by this Tribunal on August 2, 2013 in proceeding of Appeal No.61 of 2012. Secondly, he further seeks directions against the Respondent to grant Environment Clearance within period of three (3) months for the mining lease as claimed by him in that Appeal.

2 Before considering merits of the Application, it would be useful to briefly refer to background facts in which the Applicant had preferred appeal (Appeal No.61 of 2012) wherein the order dated August 2, 2013 came to be passed as well as the text of the said order. The Applicant claims that somewhere in 1981, mining lease was granted in his favour over a non forest area situated in village Manoli, (District Kolhapur). He submitted an Application for grant of Environment Clearance to the MoEF. The Application was processed. The MoEF sought certain clarification from the National Tiger Conservation Authority (NTCA) particularly in respect of distance/location of the Mine from the Tiger Reserve and its impact thereon. The MoEF desired to know whether any part of the mining area comes within the Tiger Reserve or corridor or otherwise and whether the mine area is affected by the Wild Life Sanctuary/National Park etc. In pursuance to directions of the Hon'ble Supreme Court in S.L.P. No.12351 of 2010, the State of Maharashtra notified Sahyadri Tiger Reserve (STR). The MoEF rejected request of the Applicant by Order dated 16th August 2012 on the ground that the mining block falls in the Tiger Corridor Linking Sahyadri Tiger Reserve (STR) Chandoli National Park and Radhanagari Wild Sanctuary. The said order dated 16th August 2010 rendered by the MoEF was challenged by the Applicant by filing Appeal No.61 of 2012 before the National Green Tribunal, New Delhi. The Appeal was disposed of by consent order dated August 2nd, 2013. The following order, by consent, was passed on August 2nd, 2013 in that Appeal :

"We have heard Learned Counsel for the parties.

By consent of Learned Counsel for the parties, particularly, that of the Respondent No.1 (Union of India), under instructions from Mr. H.P. Yadav, D.I.G. Forest, the following order is passed by way of consent given by both the sides.

1 The Respondent will finalize the proposal regarding the Tiger Conservation Plan which is submitted by the State Government of Maharashtra within a period of two (2) months.

2 In case the Tiger Conservation Plan has been disapproved or any adverse observation is made by the Respondent pertaining to the area of the Tiger Conservation Plan which will be unacceptable to the Appellant, the Appellant is at liberty to make representation to the Respondent within a period of fifteen (15) days after communication of such result in the context of approval or disapproval of the said plan or modification, if any.

3 In case, the Tiger Conservation Plan is approved as submitted by the State Government of Maharashtra and the Respondent comes to the conclusion that the mine area is outside such plan, Corridor or the boundaries of the Sanctuary/Tiger Reserve, the decision may be expeditiously taken and in any case not more than three (3) months.

The Respondent will also consider the observations of the Hon'ble Apex Court in the context of Judgment pertaining to the issue of Corridor Tiger Conservation Plan, as well as the true meaning of word 'Linkage' while taking such decision in the above stipulated period.

The Respondent is also at liberty to curtail the mining lease area, if a part thereof falls within corridor or linkage area or for some specific and tangible reason. The Appellant will give up his claim regarding such area, if curtailed and no mining activity will be undertaken in that part of the area.

In case any adverse order is passed by the Respondent, the Appellant is at liberty to take appropriate NBWZ if so required by the MoEF.

The Appeal is accordingly disposed of with no order as to costs."

3 It appears that subsequently, the final decision could not be taken within the stipulated period. This Tribunal again passed further order dated May 7, 2013 in the same matter. By that order a team of the Court Commissioner was appointed to visit the place of the Mine and surrounding area including the Tiger Project Site and to submit a Report. The N.T.C.A. was supposed to take independent decision as regards identification of the Corridor as per the order dated August 2, 2013.

4 The Tiger Conservation Plan (TCP) was ultimately approved. The competent Authority namely, N.T.C.A. held that the proposed mining activity falls within the linkage/corridor of Radhanagari and Chandoli National Park and Radhanagari Wild Life Sanctuary. On such a ground, the Application of Appellant i.e. Applicant herein was rejected.

5 The Applicant has come out with a case that the directions passed by the Tribunal on August 2, 2013, have been breached in as much as the Respondent failed to finalize the TCP (Tiger Conservation Plan) within period of two (2) months from the date of that order. The Applicant further alleges that the TCP was tampered with when it was finalize and thereby the Respondent, particularly D.I.G. (Forest), N.T.C.A. and the concerned authorities have committed offence of perjury. The Applicant further alleges that till 9th July 2013 there was no proposal to include the Mining Area of the block proposed by him within the Tiger Corridor/Linkage nor any decision was taken in that context. Yet, subsequently, it is manipulated so as to include the Mining block claimed by him with ulterior motive. The Applicant alleges that the Respondent committed willful disobedience of the order dated August 2, 2013 and also committed perjury for which action U/s. 26 of the National Green Tribunal Act 2010 or other penal action is called for. Incidentally, he seeks direction against the Respondent to grant the Environment Clearance in his favour within period of three (3) months.

6 We have heard Learned Counsel for the parties.

We have gone through the relevant documents on record.

7 The core issues to be considered in this Application may be stated as follows :

1 Whether it is prima facie established that the Respondent committed willful disobedience of order dated August 2, 2013 passed by this Tribunal and thereby is liable for prosecution U/s. 26 of the N.G.T. Act 2012 ?

2 Whether it is within the domain of this Tribunal to direct the Respondent to grant the Environment Clearance in favour of the Applicant as sought by him ?

8 Before we proceed to consider the Application on merits, it is important to mention that the order dated August 2, 2013 is not passed by this Tribunal on merits of the matter. The said order is, infact, passed by consent of the parties and as such, it is in the form of a settlement or mutual understanding arrived at by the parties. In other words, the terms agreed by the parties are reflected in the said order, may be under the signature of the members and seal of the Tribunal. Any order of the non-compliance can be made punitive will be required to be in the form of directive or command issued by this Tribunal calling upon a party to do or not to do certain thing/s. The text of the order dated August 2, 2012 which is reproduced as above, clearly it shows that this Tribunal did not give any particular direction to the Respondent to finalize the TCP in any particular manner. The Applicant was given liberty to take appropriate proceedings in case any adverse order would be passed against him. It was also agreed between the parties that the MoEF will be at liberty to curtail the Mining Lease Area, if a part thereof falls within corridor or linkage area or for some "Specific and Tangible Reason".

9 The above part of the order dated August 2, 2013 is explicit and no further comment is necessary. We may only record that it was the Applicant who had agreed to go by the decision of the Respondent or to challenge such decision if any adverse order would have been passed against him. Now, in our opinion, he cannot be allowed to turn volte face and say that those directions are of this Tribunal and not out come of his contribution made by way of arriving at the settlement by mutual agreement. The Applicant has been granted liberty to pursue his remedy as may be available the Law. We cannot enter into the domain of changing the TCP (Tiger Conservation Plan). We may make it amply clear that Section 14 of the N.G.T. Act 2010 gives jurisdiction to this Tribunal only in respect of specified areas covered by the seven (7) enactments mentioned in Schedule-I Appended with the Act. The Schedule-I does not include the Wild Life (Protection) Act. This Tribunal has no jurisdiction to deal with the question as to whether the TCP is properly and correctly demarcated or declared or that there is certain illegality in this context committed by the Competent Authority. Consequently, we refrain ourselves making any comment on this issue.

10 We have gone through the Written Submissions of the Applicant. According to the Applicant, alleged fraud committed by the Respondent can be considered and the issue is open for comments by this Tribunal. The argument of the Applicant in short is as follows :

"It is crucial to note that only after reading the affidavit served by me on the Respondent as well as NTCA on 16-12-2012 whereby the fact that certain clandestine changes were made to the plan approved by NTCA on 25-10-2013 was highlighted, that the respondents through NTCA referred to the letter dt. 8-11-2013 in their affidavit dt. 19-12-2013. The fact was not brought to the notice of the Hon'ble Tribunal even vide the affidavit filed by Mr. S.P. Yadav, DIG, NTCA on 25-11-2013. This belated reference indicates that the Respondents till the very last moment made every effort to bring the true facts to the notice of this Hon'ble Tribunal.

Furthermore, inspite of the clear orders of the Hon'ble Tribunal, the approved plan as stated in his affidavit by Mr. Ravikiran Govekar, AIG, NTCA and filed with Hon'ble Tribunal on 25-10-2013 has not been submitted by the respondents in the Hon'ble Tribunal thereby further aggravating the contempt proceedings against them. And as the approved Plan is still not submitted by the Respondent, the Applicant submitted a copy (as obtained under RTI) of the Corridor Plan sent by the State vide letter no.A/Desk-11/str/Tep/481/13-14 dt. 12-09-2013 (page 40-97 of the affidavit filed by the applicant on 18-12-2013) and which was approved by NTCA vide letter No.F.No.I-18/2013-NTCA dtd. 25-10-2013."

11 According to the Applicant, fraudulent act committed by the concerned authorities of the Respondent by changing the approved plan dated 25-10-2013 and substituted with the another plan prepared at the behest an official of the NTCA on 8-11-2013 can be taken in to consideration for such action. We are not inclined to consider such argument in as much as basically the issue is as to whether there is, prima facie, non-compliance of the order dated August 2, 2013 ? When it is found that the said order passed in Appeal No.61 of 2012 is a consent order, it goes without saying that action U/s. 26 of the N.G.T. Act, 2012 is uncalled for. It follows, therefore, that this Tribunal cannot give any direction to the Respondent to issue the Environment Clearance in favour of the Applicant.

12 In the result, the Application fails and is dismissed. No costs.