Delhi High Court
Charidesa Krusak Surakhya Sangh ... vs State Of Orissa And Others on 16 May, 2014
Author: I.Mahanty
THE HIGH COURT OF ORISSA : CUTTACK
W.P.(C) Nos. 9384 of 2012, 30369 of 2011, 3926 of 2010 &
W.A. No.321 of 2011
_______________________________________________________________________
In the matter of an applications under Articles 226 & 227 of the
Constitution of India & Article-4 of the Orissa High Court Order,
1948.
--------------
(In W.P.(C) No.9384 of 2012)
Charidesa Krusak Surakhya Sangha
and another ...... Petitioners
-Versus-
State of Orissa and others ...... Opp. Parties
For Petitioners : M/s. Jayant Das, Sr. Advocate
S.N.Sarkar, B.K.Jena
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.Nos.1, 3, 4 and 5)
Mr. S.D.Das, Asst. Solicitor General
(For O.P. No.2)
M/s.Pinaki Mishra, Sr. Advocate
Milan Kanungo, Sr. Advocate
and Mr.S.Das (For O.P. No.6)
(In W.P.(C) No.30369 of 2011)
M/s. K.V.K. Nilachal Power Pvt. Ltd. ...... Petitioner
-Versus-
State of Orissa and others ...... Opp. Parties
For Petitioner : Mr.Pinaki Mishra, Sr. Advocate
M/s. Milan Kanungo, Sr. Advocate
and Mr.S.Das
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.Nos.1 to 5)
Mr. J.Pattnaik, Sr. Advocate
M/s. B.Mohanty, P.K.Pattnaik,
A.Pattnaik, S.Pattnaik, R.P.Ray & V.S.
Rayaguru
(For O.P. No.6)
Mr.T.Barik (For O.P. No.7)
M/s. Sachidanda Sahoo & P.R.Bhuyan
(For O.P. No.8)
(In W.P.(C) No.3926 of 2010)
M/s. K.V.K. Nilachal Power Pvt. Ltd. ...... Petitioner
-Versus-
State of Orissa and others ...... Opp. Parties
For Petitioner : Mr.Pinaki Mishra, Sr. Advocate
M/s. S.K.Padhi (Sr. Advocate), M.Padhi,
A.Das & B.Panigrahi
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.Nos.1 to 5)
(In W.A. No.321 of 2011)
Basudev Behera and others ...... Petitioners
-Versus-
Joint Commissioner, Consolidation &
Settlement, Orissa & others ...... Opp. Parties
For Petitioners : Mr. Trilochan Barik
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.Nos.1 & 2)
Mr.Pinaki Mishra, Sr. Advocate
M/s. S.K.Padhi (Sr. Advocate), M.Padhi,
A.Das & B.Panigrahi
(For O.P. No.3)
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P R E S E N T:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
&
THE HON'BLE MR. JUSTICE BISWANATH MAHAPATRA.
Date of hearing: 02.04.2014 Date of judgment: 16.05.2014
I. Mahanty, J. The present batch of writ applications has come to be filed by
the petitioner Charidesa Krusak Surakhya Sangha and several land
losers seeking to challenge the validity of the acquisition of land made
by the Industrial Development Corporation of Odisha (hereinafter
referred to as the 'IDCO') for the purpose of setting up a thermal
power plant by M/s. KVK Nilachal Pvt. Ltd. (hereinafter referred to as
the 'KVK').
2. At the commencement of hearing, we requested the learned
counsel for the respective parties in this batch of cases to make out
categories on the issues raised and to bunch the various cases in each
such category. Accordingly, on the consent of the learned counsel
representing the various parties, four categories were made. This
judgment relates to the cases under Category-IV as noted
hereinbelow:
Category-IV Challenge to lack of permissions and clearances for
construction of the project, lack of forest clearance,
lack of wildlife clearance.
14. W.P.(C) No.9384 of 2012
15. W.A. No.321 of 2011
16. W.P.(C) No.30369 of 2011
17. W.P.(C) No.3926 of 2010
3. For the convenience of adjudication, we have proceeded to
deal with the aforesaid cases category-wise and, accordingly, the
present judgment is confined to the issues raised in Category-IV i.e.
challenge to lack of permissions and clearances for construction of the
project, lack of forest clearance, lack of wildlife clearance.
4. Since in the connected judgment delivered today in W.P.(C)
Nos.6715 of 2011 along with batch of writ applications, the factual
background of challenge has been noted in detail therein, for the sake
of brevity, the same is not being repeated herein.
5. We will now record the submissions of the parties and their
respective objections.
Category-IV - Challenge to lack of permissions and clearances for
construction of the project, lack of forest
clearance, lack of wildlife clearance.
6. Mr. Jayant Das, learned Senior Advocate on behalf of the
petitioners submitted that, part of the land over which the thermal
power plant of KVK is to be come up is, classified as "forest land" and
such land is covered under Section 2 of the Forest Conservation Act,
1980 as determined by the Hon'ble Supreme Court in the case of
T.N.Godavarman Thirumulkpad v. Union of India (1997) 2 SCC 267
and such forest land cannot be put to in a "non-forest activity",
without a clearance in terms of Section 2 of the Forest Conservation
Act, 1980 and any non forest use of the land, would require prior
approval of the Central Government in terms of Section 2 of the Forest
Conservation Act 1980 and since KVK do not possess any such prior
approval, they should be injuncted from carrying out any non-forest
activity thereon. In this respect, it is further alleged that KVK have
already commenced construction activity without the necessary
approval under the Forest Conservation Act, 1980 and once there is a
mixture of forest land and non-forest land, any activity on non-forest
land also requires a prior clearance from the Government of India
under Section 2 of the Forest Conservation Act. For this purpose,
reliance is also placed on a guideline issued by the Ministry of
Environment and Forest (in short 'MOEF') dated 21 March, 2011
relevant portion of which is quoted hereinbelow.
"4.4. Project involving Forest as well as
Non-forest Lands.
Some project involve use of forest land as
well as non-forest land. State Governments/project
authorities sometimes start work on non-forest
lands in anticipation of the approval of the Central
Government for release of the forest lands required
for the projects. Though the provisions of the Act
may not have technically been violated by starting of
work on non-forest lands, expenditure incurred on
works of non-forest lands may prove to be
infructuous if diversion of forest land involved is not
approved. It has, therefore, been decided that if a
project involves forest as well as non-forest land,
work should not be started on non-forest land till
approval of the Central Government for release of
forest land under the Act has been given."
7. On behalf of the petitioner, it is further contended that the
Kapilash Wild Life Sanctuary which was notified on 02.04.2011 is very
close to the site of the thermal power plant being constructed by the
KVK. Placing reliance on the judgment dated 04.12.2006 of the
Hon'ble Supreme Court in the case of Goa Foundation V. Union of
India, passed in W.P.(C) No.460 of 2004 to the following effect:
"Even in cases where environmental
clearance was obtained before declaration of sanctuary
and the activities fall within 10Kms of the sanctuary
boundary, clearance of the National Wildlife Board
(NWB) had to be mandatorily obtained"
8. It is therefore contended that even though KVK admittedly
had obtained an environment clearance under the environment
Protection Act on 18.02.2009, in terms of the direction of the Hon'ble
Apex Court, since the site of the KVK thermal plant is within 10 Kms.
of the sanctuary boundary, without obtaining the clearance of the
National Wild Life Board, the KVK ought not to be allowed to proceed
with the construction. In this respect reliance is placed on the
following judgments in the cases of
1. T.N.Godavarman v. Union of India, (1997) 2 SCC 267;
2. Goa Foundation v. Union of India dated 04.12.2006
passed in W.P.(C) No.460 of 2004;
3. Vellore Citisen Welfare Forum v. Union of India, (1996)
5 SCC 647;
4. AP Pollution Control Board v. M.V.Naidu, (1992) 2 SCC
718;
5. M.C.Mehta v. Union of India (2002) 4 SCC 356;
6. M.C.Mehta v. Union of India (1998) 9 SCC 589;
7. Centre for PIL v. Union of India (2012) 3 SCC 1.
It is to be noted that other learned counsel appearing for various
parties adopted similar arguments as advanced by Mr. J. Das, learned
Senior Advocate appearing for the petitioner-Charidesa Krusak
Surakhya Sangha.
9. Insofar as Forest and Environmental issues are concerned,
the learned Advocate General submitted that no construction over the
forest lands will be allowed till forest clearance is received from the
MOEF under Section 2 of the FC Act, 1980. Insofar as the boundary of
the Kapilash Wildlife Sanctuary is concerned, a memo is filed by the
learned Additional Standing Counsel on behalf of the State enclosing a
copy of the minutes of the 3rd meeting of the State Board for Wildlife
held on 11.02.2014. While in the said meeting various issues relating
to several other projects were considered, insofar the project of KVK
and Wildlife clearance are concerned, the same have been noted at
para-8 of the minutes, which is quoted hereunder:
"8. Wildlife clearance proposal for establishment of
Thermal Power Plant by M/s. KVK Nilachal
Power Pvt. Ltd. in Kandarei GP, Athagarh tahsil,
at Cuttack district:
• Chief Wildlife Warden appraised that M/s KVK
Nilachal Power Pvt. Ltd. intends to set up a
1050 MW Thermal Power Project in Kandarei,
Tahsil-Athagarh, Dist. Cuttack. The
Environmental Clearance to the project has
been granted vide Letter No.J-13011/51/2008-
IA.II (T) dated 18.02.2009 by the Ministry of
Environment and Forest, Government of India.
Upon grant of EC and other necessary
clearances and approvals from authorities as
are required for the project, construction
activities were undertaken by the Company.
Subsequently, Kapilash Wildlife Sanctuary was
notified vide Government of Odisha, Forest and
Environment Department Notification No.5937/
F & E dated 02.04.2011. Consequent upon
notification of Kapilash Wildlife Sanctuary, the
project site located within jurisdiction of
Athagarh Forest Division comes at a distance of
3.5 km from Sanctuary Boundary. The Project
Proponent has applied for obtaining clearance
from the National Board for Wildlife as per
Government of India, Ministry of Environment
and Forest, letter F. No.6-10/11WL dt.19.12.12
and submitted the Wildlife Conservation Plan
vide letter dt.30.12.11 through the DFO,
Athagarh. Acting on a PIL WP© No.9384/2012,
the Hon'ble High Court of Odisha has ordered
status-quo. The construction activities of the
Company has come to a halt as per the order
dated 18.05.2012 of Hon'ble High Court,
Odisha. Further, vide order dated 25.6.2012,
Hon'ble High Court Odisha have given direction
to Standing Committee of National Board for
Wildlife for the purpose of disposing of the
application of the company, to secure the
relevant/ necessary records from the concerned
Deptt. Of the State Govt. as well as Central
Govt. and take a decision on the application of
the applicant company & dispose of the same as
expeditiously as possible, preferably within a
period of 3 weeks and submit a report.
Principal CCF (Wildlife) & Chief Wildlife
Warden, Odisha has inspected the site and
recommended the proposal with following
conditions:
• The Laterite quarries lying in the project area
and in area surrounding the project area shall
be developed and maintained by the project
proponent in form of water bodies. At least 15
such water bodies shall be developed and ma
Barajora Nala in its natural form should be
maintained as far as possible. If diverted with
due permission from Water Resources Deptt.,
the diverted nala inside project area shall follow
proper gradients and soil conservation
measures. Further, on both side of the diverted
nala green belt shall be maintained.
• Enrichment Plantation of elephant-friendly
fodder species in Baniabandha R.F. and Gobra
R.F. (at least over 50 ha) in north-west of
proposed Darpani Right Canal of Rengali shall
be taken up where elephant movement is
noticed at present. Further, in south-east of the
said Canal, Canal Bank Plantation shall be
taken up.
• 3 Nos. of underpasses for smooth movement of
elephants at suitable locations as per suggestion
of the DFO be constructed in collaboration with
the Railways observing all the technical
formalities.
Government of Odisha have approved the
proposal of Chief Wildlife Warden, Odisha for
placing before State Board for Wildlife.
Chief Wildlife Warden has observed after field
visit on 25.12.2013 that the project would not
cause any damage, destruction, exploitation of
removal of any wildlife or forest produce or
degradation of habitat in the sanctuary. The project
also does not involve any elephant corridor or
established path which would adversely affect the
movement of wild animals and has suggested some
additional conditions. Sri S.K. Pattnaik opined that
it is estimated that Coal based thermal power plant
shall produce 7,416 tons of fly ash and 2160 tons
of bottom ash per day which is very huge quantity.
The industry is in close proximity to a sanctuary
will be detrimental to wildlife and the flow of
effluents through Barajore nala to Mahanadi shall
also affect aquatic flora and fauna of river system.
Similar view was also expressed by Sri S.N. Patra
Member State Board for Wildlife. Hon'ble Forest
Minister desired that the issue of disposal of fly-ash
in the State has to be given serious thought to
prevent health hazard due to pollution caused by
fly-ash. Principal Secretary, Forest and
Environment Department informed and assured
that necessary action has already been taken for
utilization of fly ash and more steps utilizing the
same in different uses would also be taken to
reduce the pollution caused by fly-ash. He further
informed that a High Level Committee under the
Chairmanship of Chief Secretary, Odisha is
monitoring the utilization of fly-ash in the State.
Industries are required to make arrangements for
utilization of fly ash as per the guidelines of the
MoEF. Dr. LAK Singh opined that in the Badajhor
nala flows adjoining to the plant site, the flow of
water should be maintained and necessary
measures to be taken to keep water of the nala
pollution free.
After detailed discussion the Board approved
and recommended for forwarding the proposal of
Thermal Power Plant by M/s KVK Nilachal Power
Pvt. Ltd. in Kandarei GP, Athagarh Tahsil, at
Cuttack District to Standing Committee of National
Board for Wildlife with the conditions suggested by
Chief Wildlife Warden, Odisha."
10. The conclusion of the State Board for Wildlife based on their
field visit on 25.12.2013 clearly stipulates that the project would not
cause any damage, destruction, exploitation or removal of any wildlife
or forest produce or degradation of habitat in the sanctuary. Further
the project also does not involve any elephant corridor or established
path which would adversely affect the movement of wild animals and
has also suggested some additional conditions and after detailed
discussion, the Board approved and recommended for forwarding the
proposal of KVK to the Standing Committee of National Board for
Wildlife with the conditions as suggested by the Chief Wildlife Warden.
11. Learned Advocate General submitted that insofar as the
buffer zone to the Kapilash Wildlife Sanctuary is concerned, the State
have made its recommendation to the Union Government and in
terms of its recommendation, the location of the petitioners factory
does not fall within the "buffer zone" as recommended by the State
Government, which obviously awaits the approval thereof by the
Union Government.
Submissions of Union of India
12. Mr. S.D.Das, learned Assistant Solicitor General on behalf of
the Union of India confined his argument to the issues raised under
Category-IV alone and he submits that while it is a fact that
"environment clearance" has been granted to the KVK, he also submits
that the proposal for the buffer zone of Kapilash Wildlife Sanctuary has
been sent to the MOEF for its consideration but no final decision has
been taken thereon and insofar as the recommendation made by the
State Board for Wildlife is concerned, the same having been made only
on 11.02.2014. Such proposal will be duly considered by the National
Board of Wildlife in due course but till date, no such clearance has
been granted.
He further submits that as far as the question of forest land
is concerned, the MOEF has filed an affidavit stating that no forest
diversion proposal has been received either in the Regional Office in
the Ministry of MoEF or by the Ministry itself. He further placed
emphasis on the direction issued by the Ministry in its letter dated
21.03.2011 with regard to the revision of Para 4.4 of the guidelines on
Forest (Conservation) Act, 1980 regarding projects involving Forest as
well as Non-forest Lands to the following effects:
"4.4 Project involving Forest as well as Non-Forest
Lands
xxx xxx xxx It has, therefore, been decided that
if a project involves forest as well as non-forest land,
work should not be started on non-forest land till
approval of the Central Government for release of
forest land under the Act has been given."
Submissions of KVK
13. Mr. Pinaki Mishra, learned Senior Advocate appearing for
the KVK submitted that:
(a) The Environmental Clearance ("EC") to the project was
granted by the MoEF on 18.02.2009. The EC clearly states
that "no ecologically sensitive area is reported within 10 Km
area of the project; however there are 5 reserve forests
within 5 KM radius".
(b) Prior thereto, the letter from the DFO, Athagarh dated
21.07.2008 also states that "The project area does not form
part of any National Park, Wildlife Sanctuary or Biosphere
Reserve, Bird Sanctuary, Elephant/Tiger Reserve and none
of them are present within 10 Km radius of the proposed
site."
(c) Upon grant of EC and other necessary clearances/approvals
from authorities as are required for the project, construction
activities were undertaken by the KVK. Undisputedly, till the
date of status quo order dated 18.05.2012, an investment of
Rs.975 crores had been made by the KVK on the project.
Thus the KVK had substantially acted on the EC.
(d) On 02.04.2011, Kapilash Wildlife Sanctuary was designated
as such by a notification published by the State Govt. on
29.04.2011. The notification does not have a retrospective
effect as it states ".... the State government do hereby
declare that the aforesaid area to be a Sanctuary called the
KAPILASH WILDLIFE SANCTUARY with effect from the date
of publication of this notification in the Orissa Gazettee."
The project is admittedly at 3.5 km distance from the
boundary of the sanctuary as ascertained by the DFO.
(e) W.P.(C) No.9384/2012 was filed in May, 2012 by CKS
Sangha claiming that the KVK should be stopped from
constructing the project as the project of the KVK was
within 10 km distance from the boundary of Kapilash
Wildlife Sanctuary and mandatory wildlife clearance was not
obtained.
He submitted that the Petition is based on the followings:-
(i) Order dated 04.12.2006 passed by the Supreme Court in
Goa foundation Case wherein the Court, inter alia, directed
MoEF to refer those cases to National Board for Wildlife (for
Wildlife Clearance) where ECs had been granted and the
project activities were within 10 KM radius of a wildlife
Sanctuary/National Parks; and
(ii) An Office Memo dated 02.12.2009 of MoEF wherein it was
clarified that the projects falling within 10 km radius of a
National Park/Wildlife Sanctuary were required to obtain
Wildlife Clearance.
He submitted that the High Court by an interim order dated
18.05.2012 directed that status quo shall be maintained with respect
to 10 Km radius of Kapilash. Hence, the issues raised in the petition
are devoid of any merit for the following reasons:-
(i) Order dated 04.12.2006 passed by the Hon'ble Supreme Court
in Goa foundation Case
The Hon'ble Supreme Court in the said order had observed
that if State Governments failed to give any proposal then the Court
may have to consider passing orders for implementation of the
MoEF's decision namely notification of the area within 10 km of the
boundaries of sanctuaries and national parks, as eco-sensitive areas.
It further directed that all those cases which were falling within 10
km. radius of the existing National Park/Wildlife Sanctuary and
where ECs were issued would also have to obtain clearance from the
Standing Committee of the National Board for Wildlife.
Pursuant to the order dated 04.12.2006 of the Hon'ble
Supreme Court wherein it was indicated that the Court "may have to
consider passing orders of implementation of the MoEF's decision
namely notification of the areas within 10 km of the boundaries of
sanctuaries and national parks, as eco-sensitive areas", admittedly
no orders were passed by the Hon'ble Supreme Court.
The above direction namely "all those cases which were
falling within 10 km. radius of the existing National Park/wildlife
Sanctuary and where ECs were issued would also have to obtain
clearance from the Standing Committee of the National Board for
Wildlife" was applicable to cases where a declared National
Park/Wildlife Sanctuary was existing on the date of issuance of EC
Clearance by the MoEF. In the present case, at the time of grant of
EC on 18.02.2009, there was no sanctuary within 10 km radius of
the project as Kapilash was notified w.e.f. 29.04.2011. Therefore, the
KVK was not required to obtain any Wildlife Clearance from NBWL.
It is submitted that the order passed by the Hon'ble Supreme
Court in the case of Goa Foundation (supra) is not applicable to the
KVK and the KVK was therefore, not required to obtain any wildlife
clearance. Nonetheless, the KVK applied for Wildlife Clearance as a
matter of abundant caution on 30.12.2011. The said Application is
being vigorously pursued by the KVK and is pending at the level of
the State Government.
It is further submitted that the Order dated 04.12.2006
passed by the Hon'ble Apex Court and relied on by the petitioner does
not prohibit or even indicate that there is a prohibition on carrying on
construction pending wildlife clearance, which had already started
after grant of EC. The Supreme Court was fully aware of the fact that
there are several projects which have been granted EC and are within
10 Km radius of a Wildlife Sanctuary/National Park, yet no orders
were passed directing suspension of their activities.
It is submitted that 10 km is not a thumb rule as sought to
be argued by the Petitioners. In this regard, the present status of
notification of "Eco-sensitive zones" is around various National Parks
and Wildlife Sanctuaries. It is clear that the MoEF has been made
notifications fixing 2.5 kms, 5 Kms Eco-sensitive zones and in some
of the cases, it has fixed 10 km as Eco Sensitive Zone.
14. Insofar as the Office Memo dated 02.12.2009 is concerned,
ex-facie applies prospectively only to those cases where EC is to be
granted after the issuance of Office Memo.
The said Office Memo only provides for a condition to be
stipulated in the Environmental clearance. A condition can be
stipulated only in a clearance which has to be granted after
02.12.2009 and therefore, it does not apply to cases where
Environmental Clearance has been granted prior to 02.12.2009.
It is further made clear in the said Office Memo that the
grant of EC does not necessarily imply that the investment made in
the project, if any, based on "environmental clearance" so granted, in
anticipation of the clearance from forestry and wildlife angle shall be
entirely at the cost and risk of the project proponent and Ministry of
Environment & Forests shall not be responsible in this regard in any
manner.
15. There is no injunction of any sort whatsoever either by the
Hon'ble Supreme Court or by MoEF directing suspension of activities
by the projects which are within 10 km of a Wildlife
Sanctuary/National Park and who have not yet obtained Wildlife
Clearance from the National Board. The only direction given by the
Hon'ble Supreme Court was to refer the matter to the National
Board. The Hon'ble Supreme Court was conscious of the fact that
there are projects that are carrying on activities but do not have
Wildlife Clearance, still the Hon'ble Supreme Court did not pass any
Order for suspension of the activities till the time Wildlife Clearance
from NBWL is obtained.
16. Reliance is placed on Order dated 21.12.2012 passed by this
Court in the case of Indian Metal & Ferro Alloys Vs. Union of India
and Ors. passed in W.P.(C) No.17693/2012. In the said case, this
Court has held that in the Order dated 04.12.2006 passed by the
Hon'ble Supreme Court in Goa Foundation case, nowhere did the
Hon'ble Supreme Court state that the activities of companies who
have obtained clearance earlier, shall be stopped, till the decision is
taken by NBWL. It is also pertinent to note that the State Govt. has
filed an Affidavit dated 26.3.2013 before the Hon'ble Justice MB
Shah Commission, Ahmedabad in the case of M/s. BC Dagara,
Sulaipat Iron Ore Mine stating its position in Para-9 of the affidavit
which is as follows:-
"9. That though prior clearance from the
Standing Committee of the National Board for Wildlife
(NBWL) was mandated for the new projects at the time
of obtaining environmental clearance, there is no
specific stipulation in any of the above instructions
that the ongoing projects which have already obtained
environmental clearance would be directed to stop
their operations until they receive the clearance from
the National Board for Wildlife."
17. Learned counsel for the KVK submitted that the KVK had
submitted its application for Wildlife Clearance with the DFO,
Athagarh on 30.12.2011 and the same is still pending at the State
Govt. level and is yet to be forwarded to the NBWL.
18. It is further submitted that the Centrally Empowered
Committee ("CEC") appointed by the Hon'ble Supreme Court has on
20.09.2012, filed a Report/Note in WP(C) No.460/2004 in the case of
Goa Foundation Vs. Union of India, regarding Safety Zones (Eco-
Sensitive Zones) around National Parks and Wildlife Sanctuaries. As
per the said report the buffer zone for Kapilash would be 500 meters.
The present project is at a distance of 2.5 km which is well outside
the proposed Buffer Zone.
The Hon'ble Supreme Court has prima facie accepted the
CEC recommendations and modifications as suggested by the
Amicus Curiae.
The Govt. of Orissa vide their letter dated 17.11.2012 has
conveyed its stand to the MoEF that the CEC report is accepted by
the Government in its entirety. In view of the above, project site falls
comfortably outside the proposed "eco-sensitive zone" area
recommended by the CEC/State Government for the Kapilash
Wildlife Sanctuary.
In view of the above submissions, it is submitted that
neither the Order of the Hon'ble Supreme Court in the case of Goa
Foundation (supra) nor the Office Memorandum of MoEF, dated
02.12.2009 even indicate that the projects cannot carry out activities
pending Wildlife Clearance. Thus, the prayer sought for in WP(C)
No.9384/2012 to direct stoppage of construction activities till the
KVK obtains Wildlife Clearance is devoid of any merit and ought not
be granted.
19. Forest Land
Mr. Mishra, learned Senior Advocate on behalf of the KVK
submitted as follows:
(a) The Governor of Orissa in exercise of powers under Section
27(1) of Indian Forest Act, 1927 issued a notification dated
27.10.1953, deserving an area of 2088 acres inter alia, in Mouza
Rahangol and declaring that the entire area is de-reserved and dis-
forested as there was no valuable forest growth in the area.
(b) A PIL (WP No.9384/2012) was filed claiming that the KVK
should be stopped from constructing the project, inter alia, on the
ground that the project involves forest land. It is alleged that the KVK
had filed proposal for diversion of 74.25 ha of forest land to Principal
Chief Conservator of Forest bearing Sl. No.423/2010 dated
04.09.2010. The said diversion proposal was returned for compliance
of certain objections. No revised diversion proposal has been
submitted.
(c) The KVK had earlier filed a Writ Petition WP(C)
No.3926/2010 (part of the present batch of writ petitions)
challenging the notice 17.02.2010 issued by the Tahasildar wherein
the Tahasildar had alleged that the KVK was using the Private Forest
Kissam land in violation of Section 2 of the Forest Conservation Act,
1980. The said Notice was challenged by the KVK by filing the writ
petition on the ground that by virtue of notification dated 27.10.1953
the entire land in Mouza Rahangol was de-reserved and de-forested.
The High Court vide Order dated 5.3.2010 stayed the operation of
the said notice.
(d) Realizing that the entire forest land in Mouza Rahangol
including the land forming part of the KVK's project was dereserved
and dis-forested, the KVK obviously was not required to file any
diversion proposal u/s 2 of the Forest Conservation Act, 1980. As the
classification of the land had not been corrected in line with the
27.10.1953 notification, the KVK filed petitions u/s.15(b) of the
Orissa Survey & Settlement Act, 1958 before the Court of Additional
Commissioner, Settlement & Consolidation, Cuttack, inter alia, for
changing the classification of land privately purchased by it from
'Jungle' to 'sarad' or 'gharbari' in the Hal ROR, on the strength of
notification dated 27.10.1953 (RP Case Nos. 22/2011 to 43/2011).
The said Petitions were allowed by the Additional Commissioner vide
Orders dated 17.3.2011 and the Tahasildar, Athagarh was directed
to record the classification of the land as changed from 'jungle' to
'cultivation/homestead' in the Hal ROR. No Appeal has been filed
against the said Orders and it had attained finality.
(e) That in spite of the Orders dated 17.3.2011 passed by the
Additional Commissioner, the Tahasildar, Athagarh was not
disposing of the matter by carrying out the necessary
corrections/recording in the Hal ROR, the petitioner was constrained
to file a Writ Petition being WP(c) No.16201/2011 seeking
appropriate directions to the Tahasildar. This Hon'ble Court disposed
of the said Petition vide Order dated 08.06.2011 directing the
Tahasildar to dispose of the matter as per the directions contained in
the orders dated 17.03.2011 passed by the Additional Commissioner
in RP Case Nos.22/2011 to 43/2011. The Tahasildar finally complied
with the legal directions and has carried out the necessary
corrections/recording in the Hal ROR and the land stands recorded
as 'sarad'/'gharabadi'.
(f) It is also important to note that the Tahasildar, Athagarh
(State Government) has also filed a Revision Petition u/s 15(a) of the
Orissa Survey & Settlement Act, 1958 before the Court of Additional
Commissioner, Settlement & Consolidation, Cuttack for change of
classification of suit plots under Khata No.82 in village Rahangol
from kissam 'jungle', 'chotta jungle', 'laika jungle' to 'sarad' or
'gharbari' in the Hal ROR, on the strength of notification dated
27.10.1953. The said petition is pending. Thus, the stand of the
State Government is consistent with the factual position.
(g) The DFO, Athagarh thereafter issued a notice dated
02.11.2011 that the KVK was constructing on forest land. The DFO
directed the KVK to stop the leveling and construction work. The said
notice has been challenged in WP(c) No.30369/2011. In the said
petition, the High Court passed an interim order dated 22.11.2011
that the KVK may carry on leveling work, but no construction work
shall be carried out without leave of the Court.
(h) Pursuant to the direction issued by the Court to conduct a
joint survey of the land, the same was done by the revenue and
forest authorities namely Tahasildar, Forest Range Officer, Revenue
Inspector along with Amin. The joint verification report was filed
along with affidavit dated 16.07.2012 by the State Government. As
per the affidavit filed by the Govt., the following classification of the
land (alleged to be forest land) is given:-
(i) Private Forest Kissam land purchased by the KVK -
50.33 Acres
(ii) Forest Kissam land under acquisition WP(C)
No.17476/09-13.38 Acres
Total Forest Kissam Land - 63.71 Acres
It is recorded in the said verification report that no tree growth exists
on the above land and no construction has been carried out on the
said land.
(i) As stated in Paras(d) & (e) above, the classification of the
above Private Forest Kissam land admeasuring 50.33 acres
purchased by the KVK has been changed from private forest to Patit
(Homestead) on the basis of notification dated 27.10.1953 by orders
dated 17.03.2011 passed in RP Case No.22/2011 to 43/2011 filed by
the KVK in the Court of Additional Commissioner, Settlement and
Consolidation. It is to be noted that no Appeal has been filed against
the said orders.
In respect of 13.38 Acres of forest kissam land acquired by
the State, the Court has passed an order of status quo in WP(C)
No.17476/2009 with respect to possession of this land, therefore,
the said land is not in possession of the petitioner.
20. Revenue Forest Land
It appears that the land included in the list of District Level
Committee is Ac.28.100 dec. and the land shown in the Joint
Verification Report is Ac.30.45 dec (including the above DLC land). It
is noted that no forest growth is found on this land no construction
had been undertaken on this land. As stated in Para(f) above, the
application for changing the classification of this land from forest to
non-forest u/s 15(a) of Orissa Survey & Settlement Act, 1958 filed by
Tahasildar, Athagarh Divison is pending in the Court of Additional
Commissioner, Settlement and Consolidation, Cuttack RP Case
No.3/2012 dated 06.01.2012. The said land is not in possession of
the petitioner.
It is submitted that insofar as the private forest land
purchased by the KVK is concerned, the classification of the same
has been corrected from 'forest' to 'cultivation/homestead'. In so far
as the Government land is concerned, which is recorded as forest,
the Government has admittedly applied for correction of ROR,
however, has now filed an affidavit before this Hon'ble Court that
28.100 acres of land is included in the District Level Committee list.
Although the State relied upon the notification dated
27.10.1953 and have filed RP Case No.6/2012, where no order has
yet been passed, if this Hon'ble Court deems fit, the KVK is ready to
apply for clearance in respect of the said 30 acres approx. land. The
KVK also undertakes not to carry out any construction on the said
30 acres land till the time forest clearance is given.
21. The petitioner has relied upon the judgment of the Hon'ble
Supreme Court in the case of TN Godavarman Thirumulkpad Vs
Union of India (1997) 2 SCC 267. Specific reliance is placed on the
observation of the Hon'ble Supreme Court in Para-4 that the word
"forest" as occurring in Section 2 of the Forest Conservation Act,
1980 will not only include "forest" as understood in the dictionary
sense, but also any area recorded as forest in the Government record
irrespective of ownership.
It is to be noted that in the case of TN Godavarman (supra),
the Hon'ble Supreme Court considering the meaning of the word
"forest" occurring in the Forest Conservation Act, 1980. It is clearly
stated in Para 4 of the judgment that "The word 'forest' must be
understood according to its dictionary meaning. This description
covers all statutorily recognized forests, whether designated as
reserved, protected or otherwise for the purpose of /section 2(i) of the
Forest Conservation Act." In the present case, entire Mouza Rahangol
not only ceased to be reserved forest but was also disforested
(physically as is confirmed by the Triennial Inspection Report of 1960
and Joint Verification Report of 2012) pursuant to the notification
dated 27.10.1953 i.e. much before the enactment and coming into
operation of the Forest Conservation Act, 1980. The classification of
such land was not corrected in the ROR, which has been
subsequently done.
It is also important to note that in the case of Nature Lovers
Movement Vs. State of Kerala and Ors. (2009) 5 SCC 373, the
Hon'ble Supreme Court held that the regularization of land which
was once forest by the State Govt., prior to the coming into force of
FC Act, 1980, did not require any approval from the Central Govt.
under Section of the Forest Conservation Act, 1980.
22. The petitioner has placed reliance on Para 4.4 of the
guidelines dated 21.04.2011 on Forest (Conservation) Act, 1980
regarding project involving Forest as well as Non-forest Lands, issued
by MoEF. The said Para 4.4 is reproduced hereunder:-
"4.4 Project involving Forest as well as Non-forest Lands
Some projects involve use of forest land as well as
non-forest land State Governments/project authorities
sometimes start work on non-forest lands in anticipation
of the approval of the Central Government for release of
forest lands required for the projects. Though the
provisions of the Act may not have been technically
violated by starting work on non-forest lands,
expenditure incurred on works on non-forest lands may
prove to be infructuous if diversion of forest land involved
is not approved. It has, therefore, been decided that if a
project involves forest as well as non-forest land, work
should not be started on non-forest land till approval of
the Central Government for release of forest land under
the Act has been given."
It is submitted on behalf of KVK:
a. Firstly the said guidelines do not have any force of law
and, therefore, are not binding on the KVK. There is
no provision in either the Forest Conservation Act,
1980 or the Forest Conservation Rules or the Indian
Forest Act, 1927 regarding use of non-forest land. To
the extent, the guidelines seek to regulate use of non-
forest land, a subject which is not even covered under
the Act or the Rules, they cannot be unenforceable
under law. In this regard, reliance is placed on the
judgment of the Hon'ble Supreme Court in the case of
Bhim Singhji Vs. Union of India-AIR 1981 SC 324-
(Paras-75 and 76) and AIR 1988 SC 1681-J R
Raghupathy Vs. State of AP (Para 18-S. No.20 and
21) of the List of judgments given by the KVK.
b. Secondly, on a bare perusal of the guidelines would
reveal that the same does not apply to project being
set up by the private parties and its application is only
limited to the project set up by state authorities.
Further, the language of Guidelines conclusively show
that they are not mandatory but are advisory in
nature. The underlying idea of not starting the project,
if it involves use of forest as well as non-forest land till
approval of Central Govt. is obtained for release of
forest land is given, is contained in the guidelines
itself namely "expenditure incurred on works on non-
forest lands may prove to be infructuous if diversion
of forest land involved is not approved." Further the
guidelines also admit the position that starting of
work on non-forest land does not result in violation of
the provisions of the Act.
c. Also important to note is the Order dated 10.01.2012
passed by the National Green Tribunal in Application
No.32/2011-Hussain Saleh Mahmad Usmain Bhai
Kara Vs. Union of India and Ors. by which the NGT
while taking note of the Para 4.4 of the guidelines
permitted the project proponent to go ahead with
construction on non-forest land pending clearance u/
s.2 of the Forest Conservation Act, 1980 in respect of
Forest Land.
Thus, it is submitted that no reliance can be placed on the
said Guidelines.
23. The KVK also brought the following facts to the notice of the
Court:
(i) The cost of the project is Rs.4,990 Crores and the project
was scheduled to be commissioned on or before March,
2013. The KVK has already made a huge investment of
Rs.975.27 crores in the project as on the date of status quo
Order dated 18.5.2012.
(ii) The major portion of the project cost i.e. approx. Rs.3,810
crores is being met through loans taken by the KVK from a
consortium of Banks and other Public Financial
Institutions. In terms of the Loan Agreement executed with
these Banks/Fls, the KVK is required to pay an amount of
Rs.22.50 lacs per day as interest. Each day of delay in
constructing the project is therefore causing a loss of
Rs.22.50 lacs to the KVK on account of interest alone.
(iii) In the event, the project is not commissioned; the KVK is
bound to fail in its time bound obligations to repay the loan
amount. In that eventuality, the Banks/Fls will recall the
loan of the KVK and take action against the project of the
petitioner by declaring the loan account of the KVK as Non-
Performing Asset and by taking consequent action under the
provisions of SARFAESI Act, 2002.
(iv) The KVK is regularly paying wages and salaries to its
employees everyday without any progress in the work of the
project. That the total expenditure being incurred per day by
the KVK on the project including interest on loan is Rs.34
lacs. Thus each day of delay in construction is causing
colossal and irreparable loss to the KVK, which it will not be
able to sustain any further.
(v) A part of power to be generated from the project of the KVK
is contracted to be sold to third parties with whom the KVK
has executed binding contract. The delay in commissioning
the project and supply of power under the agreement with
these third parties attracts huge penalties in the form of
Liquidated Damages. Each day of delay in supplying the
power makes the KVK liable to pay a penalty of Rs.16 lacs.
(vi) That the coal linkage and water linkage to the Project also
requires the KVK to commission the project in a time bound
manner, failing which the linkage will be cancelled. In the
absence of supply of linkage coal, the KVK will not be able to
commission and operate the plant.
(vii) Further the EPC contractors engaged by the KVK for the
subject project, is already threatening to impose huge
additional cost for delay being caused in construction of the
project.
(viii) The MoU with the Govt. of Orissa for commissioning the
power project by the KVK is a time bound one i.e. on or
before March, 2013.
That Port Authorities have issued notices to the KVK for lifting
imported equipment/materials for the project, failing which they will
auction the same.
24. In a supplementary note submitted on behalf of KVK, it is
submitted that the Govt. of Odisha has forwarded the proposal for
declaration of Eco-Sensitive Zone around Kapilash Sanctuary to the
MoEF on 12.11.2013. As per the proposal, the width of Eco-
Sensitive Zone around Kapilash ranges between 500 mtrs. To 13.5
Kms. Project of OP No.6 is well outside the proposed zone. This is
confirmed in PCCF's report at pg 78. The MoEF in its affidavit filed
on 14.2.2014 has confirmed the receipt of the said proposal and has
also confirmed that the same is under consideration.
Apart from the above, the Application for Wildlife Clearance
of OP No.6 was forwarded by PCCF (Wildlife) vide its report dated
31.12.2013 to Forest & Wildlife Dept., Govt. of Odisha. The PCCF in
his report has clearly found that project will not cause any damage,
destruction, exploitation or removal of any Wildlife or forest produce
or degradation of habitat in the sanctuary. He has further confirmed
that since the project does not involve any Elephant Corridor or
established path of wild animals, project activities may not affect
movements of wild animals. The proposal of PCCF was approved by
Forest and Environment Dept., Govt. of Odisha on 10.01.2014 with
direction to place the proposal before the State Wildlife Board.
Subsequently, the State Wildlife Board in the meeting held
on 21.02.2014 has recommended for forwarding the Wildlife
clearance proposal of OP No.6 to the Standing Committee of National
Board of Wildlife. (Minutes of Meeting of State Wildlife Board filed by
State Govt. vide Memo dated 14.03.2014.
25. The petitioners in response to the supplementary note on
behalf of KVK submitted as follows:
1(a) The Govt. of Odisha has no doubt forwarded the "proposal".
This confirms that the process of decision making is not completed
and no final decision in the matter has been taken by the competent
authority under law. The justification of variation of 500 mtrs. To
13.5 Kms. and all other alike matters will be evaluated by the
appropriate authority. These facts/matters are not liable to be
adjudicated upon in the present proceedings, as the same are
beyond the scope of this Writ Application. All that can be noticed is
the fact that no final decision as per law has been taken regarding
Eco-sensitive Zone around Kapilas ranges and in view of the Govt. of
India letter (MoEF) dated 31.7.2013, 10 Kms. will be taken as the
Eco-sensitive Zone till the matter is determined otherwise in
accordance with law (which process is yet to be completed).
Admittedly, the statutory process to arrive at a final decision inter
alia as prescribed u/s.5(3) of the Environment Protection Rules,
1986 is yet to be complied with. No final view can be taken at the
moment and the time period to elapse for a declaration has also to be
complied with.
1(b) The facts stated in paragraph 1(b) of the Supplementary
Note submitted on behalf of KVK Nilachal Power Pvt. Ltd. This being
a proposal at the recommendation/proposal stage and the competent
authority having not been taken a final decision in accordance with
law, there are inherent contradictions, inter alia, relating to elephant
movements, whereas the reports says the project does not involve
any elephant corridor or established path which would adversely
affect the movement of wild animals and has suggested some
additional conditions. The records indicate the conditions imposed
relating to elephant movements and three nos. of railway
underpasses were at least to be built for smooth movement of
elephants. The Barajora Nala (perennial natural water channel) is
also liable for appropriate protection.
1(c) The matters being in the process of final decision making, it
would be not appropriate to make any comments as the same do not
fall for adjudication in the present writ application. It is, however,
humbly pointed out that the environment clearance has by now
elapsed in February, 2014 and the so-called constructions were not
being granted and other necessary clearances and approval from
authorities as required. Admittedly, forest clearance and wildlife
clearance have not been obtained. The so-called construction is
limited to (as per order of this Hon'ble Court in WP(C)
No.30369/2011), leveling of some patch of land without putting up
any construction thereupon.
1(d) The submissions of the KVK Nilachal Power Pvt. Ltd. as at
1(d) are statement of facts. A careful reading of the same affirms that
till a final decision is taken up by the competent authority, the eco-
sensitive zone would continue to be 10 Kms. In the present case, 10
Kms. Restrictions have been come into existence, it can only be
modified by a final notification by a competent authority in
accordance with law after complying with notice period etc.
3.0 In response to submissions to paragraph 2 of the aforesaid
Supplementary Note, it is humbly submitted that the entire exercise
suggested in this paragraph would be transgression of law. In
matters of environmental law "precautionary" and "preventive"
principle is accepted by the Supreme Court of India in the case of
M.C.Mehta onwards. Something not permissible in law cannot be
permitted to continue on an undertaking of not claiming any
equities. The rest of the submissions are not relevant for the present
adjudication.
26. In the light of the submissions as noted hereinabove raised
by the respective counsels for the parties, the following issues arises
for consideration:
(i) If a project involves forest as well as non-forest land,
whether permission can be granted for the project
proponent to carry on construction on non-forest land
awaiting clearance on without in any manner
impacting the forest land and awaiting its clearance;
(ii) Whether the location of the KVK's thermal power plant
requires wildlife clearance before any construction on
the site can be permitted.
Insofar as first the issue is concerned relating to forest land,
the learned Assistant Solicitor General representing Union of India
has placed reliance on the letter dated 21.03.2011 issued by the
Ministry of MoEF and, in particular, Para 4.4 thereof which is
reproduced hereunder:
"Para-4.4-Some projects involve use of forest land as
well as non-forest land State Governments/project
authorities sometimes start work on non-forest lands
in anticipation of the approval of the Central
Government for release of forest lands required for the
projects. Though the provisions of the Act may not
have been technically violated by starting work on
non-forest lands, expenditure incurred on works on
non-forest lands may prove to be infructuous if
diversion of forest land involved is not approved. It
has, therefore, been decided that if a project involves
forest as well as non-forest land, work should not be
started on non-forest land till approval of the Central
Government for release of forest land under the Act
has been given."
27. The very self-same letter and Para-4.4 of the guidelines
issued by the MoEF was a subject matter of discussion and
determination by the National Green Tribunal, New Delhi in M.A.
No.32 of 2011-Hussain Saleh Mahmad Usmain Bhai Kara vs.
Union of India and Ors. and by order dated 10.01.2012 came to
hold as follows:
"3. xxx xxx xxx Mr. Panjwani submitted that as and
when a project involves use of forest as well as non-
forest land, work should not be started on non-forest
land till approval of the Central Government for release
of forest land is granted. In the case in hand a prayer
is made to issue an interim order/ direction restraining
Respondent No.3 from making any construction over
the non-forest land, till necessary permission is
obtained from the Central Government.
4. Respondent No.2 & 3 have entered appearance and
have filed a detailed reply in the main case. So far as
this MA is concerned, Mr. Ramchandran, learned
advocate appearing for Respondent No.3 agreed to
make oral submissions. Drawing attention to letter
dated 21st March, 2011 issued by Assistant Inspection
General of Forest to Chief Secretaries/Administrator of
all State and Union Territories (Annexure-3), learned
counsel submitted that the restrictions imposed in the
said guidelines should be confined only to State Govt./
project authorities, and not to projects undertaken by
private entrepreneurs.
Elaborating the said submission, Mr. Ramchandran
submitted that the restrictions have been imposed to
avoid loss likely to be caused to the public exchequer
in the event that permission to release the forest land
required for the project is refused and consequently
the project is abandoned. According to Mr.
Ramchandran, the said provision cannot be made
applicable to private entrepreneurs who are willing to
take a risk at their own cost, thus the balance of
convenience tilts in their favour, and it is a fit case
where the MA should be dismissed.
5. Perusal of the records releal that 3.68 ha of forest
land out of 300 acres of forest lands, are involved in
the aforesaid project. The forest land, it is submitted
would be used only for laying pipelines without
causing any damage to the existing forest.
6. Mr. Krishnan Venugopal, learned Sr. Counsel,
advancing the cause of the Project Proponent
submitted that Para 4.4 of the circular issued under
the Forest (Conservation) Act, 1980 is only a guideline
and it has neither any statutory force nor can it be said
to be binding upon Respondent No.3. Repudiating the
submissions advanced by learned counsel for the
Applicant it was argued that if any restraining order is
issued at this stage, the same would cause irreparable
loss to Respondent NO.3 inasmuch as not only the cost
of construction would escalate by afflux of time but
also there would be delay in completion of the project,
thereby causing harassment, irreparable loss and
prejudice to the Respondent No.3 which has a prima
facie cause in its favour.
7. In course of hearing, however, Mr. Ramchandran,
learned counsel for Respondent No.3, fairly submitted
that if the said Respondent is permitted to carry on
construction over the non-forest land for which EC has
already been issued, it shall not claim any equity in as
much as the construction undertaken would be purely
at its own risk. It is also submitted that alternative
steps are being taken not to use the reserve forest land
and instead use other land situated in the vicinity for
laying down the pipe lines, and as such, if the
construction work is stalled Respondent No.3 would
suffer insurmountable hardship.
In the case of Dalpat Kumar & Anr. Vs Prahlad Singh
& Ors. AIR 1993 SC 276, the Supreme Court explained
the scope of granting interim protection and observed
as follows:
"The phrases 'prima facie case', 'balance of
convenience' and 'irreparable loss' are not
rhetoric phrases for incantation, but words of
width and elasticity, to meet myriad situations
presented by man's ingenuity in given facts
and circumstances, but always is hedged with
sound exercise of judicial discretion to meet
the ends of justice."
And thereafter the NGT concluded that the balance of convenience
was in favour of the Project Proponent and consequently permitted
the Project Proponent to carry on construction in connection with its
thermal power plant, over non-forest land but the same was to be at
the risk of the said party and it was further made clear that the
Project Proponent shall not claim any equity with regard to the
constructions made thereon.
28. Apart from the aforesaid facts it appears that from the facts
situation that arises in the present batch of cases that the Governor
of Orissa in exercise of power under Section 27(1) of Indian Forest
Act, 1927 issued a notification dated 27.10.1953, de-reserving an
area of 2088 acres in Mouza Rahangol and declaring that the entire
area as "de-reserved" and "dis-forested". M/s KVK had earlier filed a
writ petition bearing WP(C) No.3926 of 2010 challenging the notice
dated 17.02.2010 issued by the Tahasildar, alleging that the KVK
was using private forest kissam land in violation of Section 2 of the
Forest Conservation Act, 1980. The said notice was challenged by
KVK in further writ petition on the ground that by virtue of
notification dated 27.10.1953, the entire land in Mouza Rahangol
had been "de-reserved" and "dis-forested". As classification of the
land had not been changed in the ROR in line with 1953 notification,
the KVK had filed petition under Section 15(b) of the Orissa Survey &
Settlement Act, 1958 for changing the classification of land privately
purchased by it from 'Jungle' to 'sarada' or 'gharbari' in the Hal ROR.
RP Case Nos.22 of 2011 to 43 of 2011 were allowed by the Additional
Commissioner vide order dated 17.03.2011 and the Tahasildar,
Athagarh was directed to record the classification of land as changed
from 'jungle' to 'cultivation/homestead'. It is important to take note
of the fact that no appeal has been filed against the said order.
Although directions had been issued by the Additional Commissioner
on 17.03.2011, since the Tahasildar, Athagarh had not acted in the
manner as directed by making necessary corrections of the ROR,
KVK had filed W.P.(C) No.16201 of 2011 seeking appropriate
directions to the Tahasildar and this writ petition has come to be
disposed of vide order dated 08.06.2011 directing the Tahasildar to
dispose of the matter as per the directions contained in the order
dated 17.03.2011 passed by the Additional Commissioner. Finally,
the Tahasildar complied with the said direction and necessary
corrected Hal ROR pertaining to the private purchase of the land
made by KVK was corrected and the said land now stands recorded
as 'sarada'/'gharabari'. It is further brought to our notice in course of
hearing by learned counsel for the KVK, that similar to the action
taken by the KVK for getting appropriate correction of the nature of
their land in the ROR, certain land acquired under the L.A. Act for
IDCO and to be leased to KVK, though covered by 1953 notification,
the necessary record of rights have not yet been corrected. It appears
that similar to the action as initiated by the KVK for the land
privately purchased by it for correcting the description of land
holding, the Tahasildar, Athagarh also has filed a Revision Petition
under Section 15(a) of the Orissa Survey & Settlement Act, 1958
before the Additional Commissioner, Settlement & Consolidation,
Cuttack for change of classification of suit plots under Khata No.82
of village Rahangol from kissam 'jungle', 'chotta jungle', 'laika jungle'
to 'sarada' and 'gharbari' based on the notification dated 27.10.1953.
It appears that the said application by the Tahasildar, Athagarh
remains pending for consideration.
29. Thereafter, it appears that the DFO, Athagarh issued a
further notice on 02.11.2011 to KVK directing stoppage of leveling
and construction work, inter alia, once again on the ground that
such work was being carried out on "forest land". This notice is the
subject matter of challenge by KVK in W.P.(C) No.30369 of 2011,
whereas interim orders were passed in favour of the KVK on
22.11.2011, permission was granted to KVK to carry on leveling work
but no construction work shall be carried out without leave of the
Court.
It appears that this Court issued further directions to the
State to conduct joint survey of the land and in process of the said
joint survey done by the revenue and forest authorities, namely, the
Tahasildar, Forest Range Officer, Revenue Inspector along with
Amin. A report was submitted on 16.07.2012 along with his affidavit
which indicates that private forest kissam land purchased by KVK
was acres 50.33 and private forest kissam land under acquisition
amounted to acres 13.38 and, therefore, it was stated that private
forest kissam land totally amounted to 63.71 acres.
What would be important to note from the enquiry report is
that on a factual verification of the site, the enquiry report indicates
that "no tree exists on the above land and no construction has been
carried out on the said land".
In the light of the aforesaid facts, it appears therefrom that
the entire private forest kissam land purchased by the KVK, RORs of
which have now been corrected based on the earlier notification
issued by the Governor of Orissa dated 27.10.1953 and further that
the Tahasildar, Athagarh has also made an application under
Section 15(a) of the Orissa Survey & Settlement Act, 1958 for similar
conversion of acres 13.38 recorded as forest kissam land though
"de-reserved" and "dis-forested" by notification dated 07.10.1953 still
awaits disposal. In other words, a total of acres 13.38 pertaining to
the acquired land, still remains recorded as "forest kissam". Apart
from the aforesaid private forest land, a further area of land
amounting to Ac.28.100 decimals has been recorded as revenue
forest land and has been mentioned by the State in its affidavit as
DLC (District Level Committee) land before the Hon'ble Supreme
Court in the case of TN Godavarman (supra). Yet the joint verification
report observes that "no forest growth is found on this land and no
construction has been undertaken on this land". It is further stated
on oath by M/s.KVK that neither the forest kissam land acquired
amounting to 13.38 acres nor the DLC land amounting to Ac.28.100
decimals has yet been handed over by the State to M/s. KVK.
It is stated on behalf of KVK that as the correction has been
made in the ROR of KVK pertaining to private purchase of land,
similar applications by the State i.e. Tahasildar, Athagarh remains
pending before the Additional Commissioner, Settlement and
Consolidation, Cuttack. While the stand taken by the petitioner is
that the land has been erroneously recorded as forest land yet, they
have given an undertaking before this Court that, the KVK is ready
to apply for clearance in respect of the said 30 acres approximate
forest land and also further undertake not to carry out any
construction activity on the said 30 acres of land till the time forest
clearance is obtained and/or the Revision Case filed by the
Tahasildar, Athagarh, before the Additional Commissioner,
Settlement and Consolidation, Cuttack is disposed of.
30. Mr. Pinaki Mishra, learned Senior Advocate appearing for
the KVK placed reliance in the case of Nature Lovers Movement v
State of Kerala and others, (2009) 5 S.C.C. 373.
Considering the fact of the aforesaid case taking into
account the fact that much before enactment of Forest Conservation
Act 1980, the State Government had taken a policy decision to
regularize unauthorized occupation/encroachment of forest land
made prior to 01.01.1977 and for implementing such decision, the
State Government succeeded in persuading the Central Government
to grant approval for diversion of forest land by way of assignment to
unauthorized occupants/encroachers and the approval having been
granted in accordance with the guidelines framed by the Central
Government. The grievance raised against regularization of
unauthorized occupation/encroachment was held to be premature in
the absence of any decision taken by the State Government in that
regard.
31. It is also relevant herein to take note of the judgment of the
Hon'ble Supreme Court in the case of J.R. Raghupathy and others
v State of Andhra Pradesh, AIR 1988 S.C. 1681, in which the
Hon'ble Supreme Court came to hold that while Article 162 vests
executive power of the State and enables the Government to issue
administrative instructions to its servants how to act in certain
circumstances, but that would not make such instructions statutory
rules the breach of which, is justiciable. The guidelines are merely in
the nature of instructions issued by the State Government to
regulate the manner in which to formulate proposals for formation of
a Revenue Mandal or for location of its Headquarters. It is reiterated
therein that the guidelines had no statutory force and are not
enforceable in Court of law though for breach of such instructions
the public servant may be held liable by the State.
32. Apart from the above, a Constitutional Bench of the Hon'ble
Apex Court in the case of Shri Bhim Singhji & others v Union of
India and others, A.I.R. 1981 S.C. 234 has come to hold that
guidelines issued by the Government cannot supersede or alter any
of the provisions of the acts and rules thereunder. In Conclusion in
paragraph-76 of the said judgment Their Lordships of the
Constitutional Bench came to conclude that "guidelines cannot alter
the priorities laid down in the section. The guidelines are nothing but
in the nature of executive instructions and cannot obviously control
the plain meaning of the section. Where the language of the Act is
clear and explicit, we must give effect to it, whatever may be the
consequences, for in that case the words of the statute speak the
intention of the legislature.
On a plain reading of the guideline dated 21.03.2011 of the
MoEF clearly state that if work commences on non-forest land in
anticipation of the approval of the Central Government for release of
forest land required for the project "though the provisions of the Act
may not been technically violated by starting work on non-forest
land" expenditure incurred may become infractuous if diversion is
not approved. Considering the nature of the guidelines since the
National Green Tribunal in above referred case Husain Saleh
Mahmad Usmal Bhai Kara v Union of India and others is yet to
give its final determination thereon while refraining from expressing
any opinion on the same, we record the undertaking of Mr. Pinaki
Mishra, learned Senior Advocate on behalf of KVK that they are ready
to apply for clearance in respect of 30 acres approximately of
purported Government Forest Land and further undertaking not to
carry out any construction on the said land till forest clearance is
obtained and/or the Revision Case filed by the Tahasildar, Athagarh,
before the Additional Commissioner, Settlement and Consolidation,
Cuttack is disposed of. We, therefore, dispose of the writ petitions
recording the aforesaid undertaking. Accordingly, the first issue is
answered in favour of the KVK in terms of the directions issued
herein.
33. Though the petitioners have placed a great amount
emphasis on the judgment of the Hon'ble Supreme Court in the case
of Goa Foundation v. Union of India and others and insisted that
the Hon'ble Supreme Court, had held that even in cases where
"environmental clearance" was obtained, before declaration of
sanctuary and the activities fall within 10Kms of the sanctuary
boundary, clearance of the National Wildlife Board (NWB) had to be
mandatorily obtained. Union of India also represented by the learned
Assistant Solicitor General relied on the same. Learned counsel for
KVK vehemently objected to the same and stated that the order
dated 04.12.2006 of the Hon'ble Supreme Court in the case of Goa
Foundation (supra) merely indicated that the Hon'ble Supreme Court
"may have to consider passing orders of implementation of the MoEF
decision namely notification of the areas within 10 kms of the
boundaries of sanctuaries and national parks, as eco-sensitive
zones. He submitted that admittedly, no subsequent orders have
been passed by the Hon'ble Supreme Court giving effect to the said
threat. Although various contentions have been advanced by the
learned counsel for the respective parties, it has been admitted by
the State Government that the project proponent KVK has obtained
environment clearance from the MoEF on 18.02.2009. At that time,
the Environment Clearance Certificate clearly noted that "no
ecologically sensitive area was reported within 10 Kms area of the
project; however there are 5 reserve forests within 5 KMs radius".
But more importantly, the letter of the DFO, Athagarh dated
21.07.2008 contains the following declarations "The project area
does not form part of any National Park, Wildlife Sanctuary or
Biosphere Reserve, Bird Sanctuary, Elephant/Tiger Reserve and
none of them are present within 10 Kms radius of the proposed site".
It is only on 02.04.2011 that the Kapilash Wildlife Sanctuary was
designated by way of notification published by the State Govt. on
29.04.2011. The project location is more than 3.5 kms from the
boundary of the sanctuary as determined by the DFO.
34. Now, the only issue that remains for consideration
purported to the "buffer zone". While Mr. J. Das, learned Senior
Advocate appearing for the petitioners has been vehemently arguing
that the "buffer zone" must be deemed to be 10 kms., this issue is no
longer res integra. The selfsame question as to whether any
industrial activity can be permitted within 10 kms zone of a reserved
forest/national park/ sanctuary came to be considered by the
Hon'ble Supreme Court in its judgment dated 21.04.2014. The
submission was advanced before the Court that the order dated
04.12.2006 (relied upon by the petitioners) did not finally fixed the
"buffer zone" of 10 kms from the boundary of national parks and
wildlife sanctuaries but merely granted a last opportunity to State to
submit their recommendations. It was the further argument
advanced that till date, no such notification has yet been notified till
date. The Hon'ble Supreme Court in the case of Goa Foundation
(supra) concluded as follows:
"71. In the result, we declare that:-
xxx xxx xxx
(iii) until the order dated 04.08.2006 of this Court is
modified by this Court in I.A. No.1000 in T.N.
Godavarman Thirumulpad v. Union of India &
Ors., there can be no mining activities within
one kilometer from the boundaries of National
Parks and Sanctuaries in Goa;
(iv) by the order dated 04.12.2006 in Writ Petition
(C) No.460 of 2004 (Goa Foundation v. Union of
India), this Court has not prohibited mining
activities within 10 kilometers distance from the
boundaries of the National Parks or Wildlife
Sanctuaries;"
Apart from the above, it would be relevant that in the
meantime, the State have also forwarded its recommendation of the
"buffer zone" for consideration by the Central Government and in
terms of the submission made by the learned Advocate General, the
location of the project proponent KVK is beyond the "buffer zone"
recommended by the State Government. Therefore, applying the
judgment of the Hon'ble Supreme Court in the case of Goa
Foundation as referred hereinabove, we are of the considered view
that the Hon'ble Supreme Court, has not prohibited any industrial
activity within 10 kms. distance from the boundary of the national
park or wildlife sanctuary, but there can be no industrial activity
within 1 km. from the boundary of the national parks and
sanctuaries in Goa until any further orders were passed by the
Hon'ble Supreme Court in this regard. Therefore, we find that
whereas the KVK has to approach the appropriate committee since
the location is within 10 kms of the boundary of the Kapilash Wildlife
Sanctuary, there appears to be no bar in carrying out construction
activity, since the distance between the wildlife sanctuary and the
location of the thermal power plant is more than 1 km beyond the
limits suggested by the State Government in its recommendation
made to the Central Government. But the KVK would have to seek
necessary approval of the Wildlife Board prior to commencing its
operations. Accordingly, the second issue is answered in favour of
the KVK in terms of the directions issued herein.
35. Therefore, we are of the considered view that there exists no
impediment to allow the petitioner-company (KVK) to proceed with
construction activities keeping in view of the fact that the huge
investment of nearly 1000 (one thousand) crores has already been
made and further 4000 (four thousand) crores is required to be
further invested, in the interest of not only the project proponent but
the State interest insofar as the preferential rights to draw power and
the urgent necessity of power as an infrastructure project for the
development of the State and the Union of India, cannot be doubted.
36. Insofar as W.A. No.321 of 2011 is concerned, after hearing
the learned counsel for the appellant as well as the State, it appears
that the appellants claiming to be encroached the Government land,
had come to challenge an order dated 6.1.2011 passed by the learned
Addl. Commissioner, Settlement and Consolidation, Cuttack in RP
Case No.597 of 2010 under Section 15(a) of Orissa Survey and
Settlement Act, 1958. This case had been initiated by the Tahasildar,
Athagarh for correction of the map and ROR in respect of Khata No.84
of Village Rahangol enhancing the area for acres 4.68 to 34.68 dec.
This land was recorded as 'Rakhit-Anabadi' under the State
Government and certain persons claiming to be encroachers on the
said land had sought to file intervention application in the petition
filed by the Tahasildar registering the correction of ROR and map on
the claim that they were in the possession of some parts of the case
land and/or government land could not be alienated in favour of any
company. In the present case, the learned Single Judge while dealing
with the issue came to a finding that, enquiry was conducted by the
Tahasildar along with the Revenue Supervisor, Revenue Inspector and
Amin and it is mentioned in the report that the land is free from
encroachment and further that the intervenors had not produced any
material to indicate their occupation or possession or any interest
over the case land and accordingly, their objections regarding
alienation of the government land in favour of the IDCO were rejected
and the order passed by the Addl. Commissioner of Settlement and
Consolidation dated 6.1.2011 came to be affirmed.
We find no justifiable ground to interfere with the said order
since the learned Single Judge has clearly and categorically came to
a conclusion that in the absence of the material in support of the
petitioner/appellants' case, assertion of any right, interest and
possession over the case land and objection thereof, is wholly
misconceived and accordingly, we affirm the order passed by the
learned Single Judge.
37. In view of the above, the W.P.(C) No.9384 of 2012 & W.A.
No.321 of 2011 stand dismissed and W.P.(C) No.30369 of 2011 with
the prayer for quashing the notice issued by the DFO, Athagarh vide
letter No.8192 dt.02.11.2011 under Annexure-1 which is consequent
upon the letter No.4954 dt.30.08.2010 under Annexure-9 and letter
No.7773 dt.28.12.2010 under Annexure-10 and further declare that
the provisions of Forest Conservation Act would have no application
to the lands purchased by the petitioner which is a part of the area
notified as de-forested and de-reserved in 1953 Notification
dt.27.10.1953 under Annexure-8 being the very basis of correction of
the R.O.Rs under Annexures-7 & 14, is allowed. Further, W.P.(C)
No.3926 of 2010 with a prayer for quashing the notice dated
17.02.2010 issued by the Tahasildar, Athagarh under Annexure-2 is
also allowed.
The aforesaid batch of writ applications stand disposed of in
terms of the directions noted hereinabove.
.................................
I.Mahanty, J.
B.N.Mahapatra, J. I agree.
...................................
B.N.Mahapatra, J.
The Orissa High Court, Cuttack
16th May, 2014-KCP/RKS/PKP/RKM
