BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE APPEAL NO.26 OF 2014 HON BLE SHRI JUSTICE V.R. KINGAONKAR (JUDICIAL MEMBER)

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1 BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE APPEAL NO.26 OF 2014 CORAM : HON BLE SHRI JUSTICE V.R. KINGAONKAR (JUDICIAL MEMBER) HON BLE DR. AJAY A.DESHPANDE (EXPERT MEMBER) B E T W E E N: KRANTI SAHAKARI SAKHAR KARKHANA LTD Kundal, a Society Registered under the Maharashtra Co-operative Societies Act, 1960, Having its registered office at Post Kundal, Taluka Palus, District: Sangli. APPELLANT A N D 1. THE REVENUE & FOREST DEPARTMENT, State of Maharashtra, Mantralaya, Mumbai. 2. MAHARASHTRA WILD LIFE ADVISORY BOARD, Having their office at Revenue & Forest Deparmtent, Mantralaya, Mumbai-30. Page 1

2 3. THE PRICIPAL CHIEF CONSERVATOR OF FOREST (Wild Life), Maharashtra State Nagpur. 4. THE CHIEF CONSERVATOR OF FOREST, Head of Forest Force, Maharashtra State, Nagpur.. RESPONDENTS Counsel for Applicant(s): Mr. P.G.Lad Advocate a/w S.N.Chingale Advocate for the Appellant. Counsel for Respondent(s): Mr A.S. Mulchandani AGP for Respondent No.1. Date : January 15 th, 2015 ORAL JUDGMENT 1. By filing this Appeal, the Appellant- a proposed Educational Institute of the Sugar Factory has sought permission under Section 2 of the Forest (Conservation) Act, 1980, and hence filed this Appeal under section 16 of the NGT Act, Page 2

3 2. By passing impugned order dated , the Govt. of Maharashtra, decided not to recommend proposal of the Appellant to the Govt. of India (MoEF), for conversation of forest land, which was sought to be converted, in order to seek use a part of forest land, which is already divided in various parts. The Appellant desires diversion of ha forest land out of Gut No.2959 situated in Kundal, Tal. Palus, district Sangli for proposed construction work of Polytechnic, Engineering College, workshop, hostel, Ayurvedic College etc. on the said land. The diversion of such land was sought for construction work in order to establish buildings needed for educational purpose. 3. It appears that the Appellant filed required Application in Form-A, which was submitted to the Deputy Conservator of Forest, giving all the details of proposed activities. The Conservator of Forest, Kolhapur, Circle recommended proposal on The proposal was sent to the concerned Authority for the purpose of forwarding the same to the MoEF. It appears that by communication dated August 7,2012, the I/c Chief Conservator of Forest (CCF), (Wild Life) State of Page 3

4 Maharashtra, Nagpur, communicated its decision to CCF for further configuration. In the next meeting the proposal was considered as subject No.2 and was rejected by the Board. The Appellant was informed regarding such decision vide communication dated August 7, Thus, the Appellant was duly informed and communicated decision of the State Govt. that the proposal was refused by the competent Authority and the same was decided not to be forwarded to the MoEF. 4. It appears that aggrieved by the said decision of Govt. the Appellant preferred Writ Petition No.1096 of 2013, in the Hon ble High Court of Judicature at Bombay. By order dated 7 th August, 2014, the Hon ble Bench considered additional affidavit of the Appellant as well as the affidavit of Divisional Forest Officer, Sangli and thereafter allowed the Appellant to withdraw the Writ Petition with liberty to prefer an Appeal before the NGT (WZ) Bench Pune. While, doing so the Hon ble Division Bench, noted that on 28 th July, 2014, the State Govt. has communicated its decision to the Additional Chief Conservator of Forest, Maharashtra State of not recommending the proposal of the Petitioner. Page 4

5 5. It may be noted that while disposing of the Petition, as withdrawn, all the contentions on merits were kept open. 6. We have heard learned Counsel for the Appellant in extenso. 7. Learned Counsel for the Appellant vehemently argued that after completing the process, proposed project ought to have been recommended for consideration of the MoEF. He invited our attention to provisions of the Forest (Conservation) Rules, 2003, particularly, Rule-6, which mandates that such proposal along with recommendation, shall be forwarded by the State Govt. to the Regional Officer of the Ministry of Environment and Forests (MoEF), within a period of sixty (60) days, under Rule-6(3)(e),(ii). In case, it is not so forwarded within such period, then Sub-Rule-(f), requires the State Govt. that the same is rejected and user Agency must be informed accordingly. 8. The Rule provides that grace period of fifteen (15), days within which if the proposal is not forwarded, there is deeming effect that it shall be deemed to have been rejected. It is important to note that no such communication was made by the competent Authority to Page 5

6 the user Agency, regarding rejection of the proposal to the Appellant, within period of relevant sixty (60) days plus grace period of fifteen (15) days. Obviously, it could be presumed that there was no rejection communicated to the user Agency by the competent Authority. 9. What appears from the record is that the proposal was recommended by the Conservator of Forest, Kolhapur Circle, Kolhapur. The Appellant was informed by the Authority, namely; the Chief Conservator of Forest (CCF), Nagpur, communication dated 7 th August, 2012, copy of minutes of Meeting of Wild Life Board (WLB), which had been forwarded to him. The Minutes of Meeting, indicate that the proposal was considered as Item Nos. 2.7 by the Wild Life Board and was rejected by the Board, on the ground that the proposed site is at distance of 1.50 km. from Sagareshwar Sanctuary. 10. The matter, however, did not stop at that juncture. The proposal went further to the level of Revenue and Forests Department in the Mantralaya, Mumbai. The proposal was rejected by communication dated 28 th July, 2014 by the Additional Secretary of the Govt. on following two grounds: Page 6

7 (1) Requirement of land is non site specific and liable to be rejected as per para 4.5 (ii) of the Government of India guidelines. The guidelines envisage that the project should be of the Government and that the area should not exceed one hectare. (2) Sangli District has relatively small forest area (about 5.75% of the land mass) which ever increasing demand for this scarce public resource owing to rapid pace of construction, urbanization and industrialization. 11. Perusal of above two (2) grounds, would show that the proposal was not rejected on the premise of the same being in the proximity of Sagareshwar Sanctuary and being prohibited activity due to distance of 1.50 km. from the boundary of the Sanctuary. In other words, what the Chief Conservator of Forests, had considered as a ground for rejection of the proposal was not stated in the communication dated 28 th July, 2014, by the Additional Secretary of the Govt. This is, in our opinion, therefore, a ground which could be left for consideration Page 7

8 of MoEF after forwarding of the proposal and the MoEF could have duly appraised the proposal on merits thereof. 12. As stated above, the Forest (Conservation) Rules, 2003, require that after having received the proposal, it has to be processed under Rule-6 (3) (a) by the State Govt. In case, State Govt. does not find certification of feasibility of the proposal or certification of the maps in regard of the proposal by the Forest Officer or the Conservator of Forests, then it could be sought from the Principal Chief Conservator of Forests, who shall forward the proposal to the State Govt. Thereafter, State Govt. is under obligation to forward the proposal as required under Rule-6 (3),(e), (ii), to the MoEF for its consideration. 13. In our opinion, the above Rule is violated in the present case. The subsequent rejection of the proposal at the State level was not warranted when after the period of sixty (60) days plus fifteen (15) days, the rejection which was presumed under provision of the Rules, was not intimated to the Appellant. As a matter of fact, had such intimation been given to the Appellant, Page 8

9 under the Rules, there was no further need to process the proposal and push it through the pipeline, but the same was not done and it went up to the State level and finally was rejected vide the impugned order. Besides, the Appellant was not heard at time of rejection of the proposal. In case of passing any adverse order, the Administrative Authority, is required to hear other party, who will be affected by such adverse order. The breach of principles of nature justice, is also one of the ground, on which the impugned order becomes unsustainable in the eye of Law. Considering foregoing discussion, we are of the opinion that the impugned order requires to be set aside and the Authority will have to be directed to forward the proposal to the MoEF with recommendations of either nature. 14. In the result, the Appeal is allowed. The impugned order is set aside. The State Govt. shall forward the proposal to MoEF with recommendations either to grant the same or refuse the same on merits thereof by giving due reasons. The MoEF may consider the proposal on merits thereof, independently, of any observations made in the above order and after considering the entire Page 9

10 material available, including distance of proposed buildings and Sagareshwar Sanctuary as well as nature of proposal etc. The proposal be forwarded to the MoEF within two (2) months. 15. The Appeal is accordingly disposed of with no order as to costs..., JM (Justice V. R. Kingaonkar)., EM (Dr.Ajay A. Deshpande) Date: January 15 th, 2015 Page 10