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NATIONAL GREEN TRIBUNAL

Principal Bench, New Delhi

Application No. 30/2012 Tuesday, 18th of December, 2012

Quorum:

1. Hon’ble Shri Justice V. R. Kingaonkar (Judicial Member) 2. Hon’ble Shri Dr. Devendra Kumar Agrawal (Expert Member)

BETWEEN:

1. ANKUR

Through

Its Foounder Member Vaishali Patil

Shankar Rama Complex

Chinchpada Road near Govt. Hospital

Flat No. 102, First Floor,

Pen, District- Raigarh

Maharashtra …Applicant

A N D

1. MAHARASHTRA STATE ENVIRONMENT IMPACT

ASSESSEMENT AUTHORITY

Through the Secretary

Environment Department

Room No. 217, 2nd floor,

Mantralaya Annexe

Mumbai 400032

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2. MAHARSHTRA POLLUTION CONROL BOARD

Through the Member Secretary

Kalpataru Point, 3rd & 4th floor,

Sion Matunga Scheme Road No. 8

Opp. Cine Planet Cinema

Near Sion Circle, Sion (East), Mumbai- 400 022

3. M/S MINERALS AND METALS

34, Auhutosh, NepeanSea Road, Mumbai,

Maharashtra 400006 …….. Respondents

(Advocates appeared: Mr. Ritwick Dutta, Advocate alongwith

Mr. Asim Saroda and Ms. Srilekha Sridhar for Applicant and

Mr. Mukesh Verma, Advocate alongwith Mr. Pawan Shukla for

Respondent No. 1 & Respondent No. 2 and Mr. Vivek Vishnoi,

Advocate alongwith Mr. Sangram Desai for Respondent No.3).

JUDGEMENT

1. This is an application filed under Sections 14 and 15 of the

National Green Tribunal Act, 2010 (for short, NGT Act). The

applicant is allegedly a Public Trust. The application is filed

through its founder member. The applicant seeks revocation of

the Environmental Clearance (for short, EC) dated 27th February,

2009, granted to Respondent No. 3 (M/s Minerals & Metals) for

its iron ore open mine situated at Village Kalane, Taluka

Dodamarg (District Sindhudurg) and for restoration of the

environment of the area by removal of mining waste dumped at

adjoining agricultural lands of the villagers.

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2. Briefly stated, case of the applicant is that the Respondent

No. 3 has violated conditions of the Environmental Clearance (EC)

dated 27.2.2009. The mining area of 32.25 hac. is permitted for

conducting the mining activity by the Respondent No. 3. The

Respondent No. 3, however, encroached on the adjoining

agricultural land as well as common land of the villagers. The

Respondent No. 3 also has dumped the mining waste on adjoining

land bearing Survey No. 60. With the result, about 10-12 Acres of

that land has been buried under the mining waste. The Cashew

plantation along with species of trees like Ain, Asan, Nana, Sesum

and Kindas are also buried under the dumped mining waste. The

Respondent No. 3 is using the Government sanctioned road for

transportation of the ore extracted from the mine. A large

number of uncovered heavy vehicles are plied on that road. The

traffic of such heavy vehicles causes Air and noise pollution in the

area. The mining operation is being undertaken without taking

protection to avoid spillage, avoid overloading of trucks, and to

provide a wooden side board of at least 9” height to cover the

transportation vehicles by means of tarpaulin. Besides, silt from

the mining area is drifted to old river of the village which flows

about 100 meters away from the mining area. The Respondent

No. 3 did not construct protection wall around the mining area.

3. The applicant further alleges that though several complaints

were made by the villagers to various authorities yet the

Respondent No. 3 i.e. project proponent continued to commit

breach of the conditions of the EC. The site inspection carried out

by Deputy Director, Directorate of Geology and Mining during

period between 27.12.2011 to 29.12.2011 revealed that the

mining activity was being carried out beyond the leased area.

The Respondent No. 3, due to dumping of the solid waste, has

overburdened the adjoining agricultural lands. The mining activity

is being carried out without complying conditions of the EC. The

air and noise pollution caused by the mining activity is hazardous

to health of the villagers. The Respondent No. 3 has destroyed

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agricultural land of the farmers and also caused damage to the

ecology and environment of the area. The applicant further says

that by applying precautionary principle the harm caused to the

environment is required to be prevented by revocation of the EC

dated 27.2.2009 and also by restoration of the environment.

Moreover, the Respondent No. 3 needs to be mulcted with

liability to pay compensation to the affected villagers.

4. The application is resisted by the Respondent No. 3 (project

proponent) on various grounds. According to the Respondent

No.3, the application is filed with mala fide intention to obtain

undue and illegal benefits from him. The application is barred by

limitation. The application does not raise any serious

environmental issue. The Respondent No. 3 also challenges locus

standi of the applicant on the ground that the applicant –Trust is

having activities at Pen, a Taluka place which is about 500 Km

from Dodamarg Taluka, where the mining activity is going on.

Moreover, the applicant is not a registered Trust as alleged by it.

The Respondent No. 3 alleges that the application is filed without

any supporting evidence and is actuated by malice. The

Respondent No. 3 alleges that one Ganpat Dattatray Desai is at

the back of the litigation, initiated for the purpose of blackmailing

the Respondent No. 3 and out of vengeance. The Respondent No.

3 alleges that said Ganpat Desai and Mansingh Desai are accused

persons in Criminal case No. 18/2009 registered at Dodamarg

Police Station for offences under sections 302, 143, 147, 148, 149,

324, 323, 506 and 427 of the Indian Penal Code (for short, IPC).

They alongwith other accused had hatched up conspiracy to

murder one Yusuf Shaikh, who was employed as security guard at

the site of the mining of the Respondent No. 3. The Respondent

No. 3 further alleges that the mining waste is not dumped

anywhere except on part of Survey No. 60, hissa No. 1/1-1/5. The

owner of the said land has entered in to an agreement whereby

the Respondent No. 3 has been allowed to stack the waste

material on that land which is uncultivable and barren. The

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Respondent No. 3 further submitted that he has already taken

required permission from the Revenue Department for converting

that land to non-agricultural use. The Respondent No. 3 denied

that the mining activity has caused harm to the ecology and

environment. It is further denied that the EC conditions have

been violated. On these premises, the Respondent No. 3 sought

dismissal of the application.

5. Considering the pleadings of the parties, the following

issues are formulated. We have recorded findings on these issues

in the last paragraph of the Judgment.

6. The issues are as follows:-

1. Whether the applicant has locus standi to file the application,

being aggrieved person within the meaning of Section 18?

2. Whether the Respondent No. 3 has expanded the mining

activity by dumping the mining waste on adjacent land bearing

Survey No. 60 and therefore has caused loss to 10-12 Acres

area of agricultural lands, due to burial of plants like Ain, Asan,

Nana, Sesum and Kindas which is loss to the ecology and

environment?

3. Whether the Respondent No. 3 has caused Air pollution due to

plying of trucks loaded with iron ore without taking proper

precaution to avoid spillage?

4. Whether the Respondent No. 3 has caused water pollution by

drifting the silt of the mine in the village river?

7. First of all, we shall examine whether the applicant has locus

standi to file the application. For this purpose, it is necessary to

refer Section 18 of the NGT Act. A person entitled to file

application under Section 18, besides any aggrieved person as

shown under Section 16 of the NGT Act, should fall within

categories mentioned in Section 18 Sub clause (2). It is pertinent

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to note that Section 16 of the NGT Act deals with jurisdiction of

the Tribunal to deal with appeals. The present application is filed

under Section 14 & 15 of the NGT Act. Therefore, the applicant

must show that he is the fit person to submit such an application.

8. It will be useful to refer Section 18 of the NGT Act. Section 18

reads as below:

Section 18 : Application or Appeal to Tribunal.

(1) “Each application under Sections 14 and 15 or an appeal under Section 16 shall be made to the Tribunal in such form, contain such particulars, and be accompanied by such documents and such fees as may be prescribed.

(2) “Without prejudice to the provisions contained in Section 16, an application for grant of relief or compensation or settlement of dispute may be made to the Tribunal by__

(a) The person, who has sustained the injury; or (b) The owner of the property to which the damage has

been caused; or (c) Where death has resulted from the environmental

damage, by all or any of the legal representatives of the deceased; or

(d) Any agent duly authorized by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be; or

(e) Any person aggrieved, including any representatives body or of the National Green Tribunal Act, 2010.”

9. According to the applicant, the application can be filed by the

applicant Trust which represents the affected agriculturists. It is

the argument of Learned Counsel for the applicant that the

applicant is “an aggrieved” person. It is argued that the applicant

is an organization which takes care of the interest of agriculturists.

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It is submitted by the Learned Counsel for the applicant that the

applicant is a duly registered Trust and therefore is entitled to file

such application because the mining activity of the Respondent

No. 3 is detrimental to the interest of the adjoining land holders in

particular and the villagers in general.

10. The applicant has placed on record copy of the resolution

which authorises Vaishali Partil to take necessary steps in order to

protect” Constitutional Rights of the farmers”. Perusal of the copy

of the resolution shows that address of the office of the

organization is given as “ANKUR, Shankar Rama Complex,

Chichpada Road near Govt. Hospital, Flat No. 102, First Floor, Pen,

District Raigarh- Maharashtra. The copy of the resolution further

shows that the applicant Trust is registered under the Mumbai

Trust Act 1950, Vide Registration No. E-1890 (Pune). The

Respondent No. 3 has filed on record copy of the Public Trust

register maintained by Pune Division office in respect of the Trust

No. 1890. It appears that said Trust is registered in name of Smt.

Prabha Karandikar, Public Trust and the address of the Trust is

different from that of the trust shown by the applicant. The

Respondent No. 3 also has produced the extract of the

registration book. The documents show that objects of the said

Trust and Ankur Trust are different. That trust is not formed with

an object to help the agriculturists. The applicant, however, has

not filed any document to show the specific objects of the

applicant Trust. What appears from the record is that “Ankur” is

the trust registered as per registration E-1809 (Pune). It appears

that Shri Raj Anthony is the person to whom the registration

certificate was issued. The address of said trust (Ankur) is shown

as “12 Pandurang Niwas, Alandi Road, Pune. We have no material

before us to show that subsequently the address of said Trust was

changed and the office was shifted to Pen- District Raigarh. We

have also no material to show that said Trust (Ankur) was formed

with an object to protect constitutional rights of the farmers. It

goes without saying, therefore, that the applicant has no locus

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standi to file the instant application. Secondly, the address shown

on the certificate of registration of the Trust and the Registration

No. (E-1890) do not match with the description shown in the copy

of resolution. The copy of the resolution shows that the Trust is

registered vide No. E-1890(Pune). It is stated by Vaishali Patil in

her affidavit that this is an inadvertent typographical mistake.

Assuming, for sake of argument that it is a typographical mistake,

then also without any supporting document it is difficult to say

that the object of the applicant Trust is to ensure and protect

welfare of the farmers.

11. Having regard to the Trust address shown on the copy of

resolution, it is amply clear that that the office of the said Trust is

at Pen (District -Raigarh). The mining activity of the Respondent

No. 3 is at Village Kalane (District Sindhudurg). Judicial notice may

be taken of the fact that Village Kalane is far away from Pen, may

by around 300/400 Kms. We do not have any record which shows

that the applicant Trust is authorized to protect rights of the

farmers in all the districts, including District Sindhudurg. The

farmers who are said to have been adversely affected by the

mining activity have not come forward to file the application. It

appears that the applicant has filed affidavits of Mansigh Desai

and Ganpat Dattatray Desai. The Respondent No. 3 has filed copy

of charge sheet in Sessions case No. 17/2010. It appears that

both the above named persons, along with other accused persons,

are facing prosecution for offences under Section 302, 143, 147,

148, 149, 324, 323, 506, 427 and 188 of the IPC. It appears that

they allegedly committed murder of one security guard who was

employed by a security agency, for the purpose of safeguarding

the mining activity of the Respondent No. 3. It is, but natural that

above persons have reason to grind axe against the Respondent

No. 3. Both of them have not joined the application as applicants.

However, they have filed affidavits in support of the application

with certain oblique intention. In other words, the application is

not filed with an intention to safeguard rights of the farmers. It

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appears to have been filed to retaliate the charges leveled against

Ganpat Desai and Mansingh Desai. The application is of vindictive

nature and filed at the behest of the above named persons. We

are of the opinion, therefore, the that applicant has no locus

standi to file this application. The Issue No. 1 is, therefore,

answered in the negative.

12. The averments in the application show that the main issue

projected by the applicant is in respect of alleged encroachment

on the agricultural field of the farmers and the common land of

the villagers. The exact words used by the applicant in the last

sentence of paragraph 2 of the application may be reproduced as

follows:-

“The main issue is that the project proponent has encroached

upon the agricultural field of the farmers and other common land

of the village. “

13. The application does not show, however, on which

agricultural fields the project proponent has encroached. There

is no map prepared by any authorized agency to show the alleged

encroachments. The applicant could have filed copy of the

measurement map prepared by the District Inspector of Land

Records (DILR). The applicant has not obtained any such authentic

record about the issue of encroachment. Moreover, the issue of

encroachment is the lis between concerned private parties and

the Respondent No.3. That cannot be an issue related to the

environment, particularly, about adverse impact of the

environment. Hence the so-called main issue stated in paragraph

2 of the application is without any substantial foundation as well

as irrelevant.

14. Another contention of the applicant is that the project

proponent (Respondent No. 3) has overburned a part of land

Survey No. 60 by way of dumping mining waste thereon. It

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appears that the Respondent No. 3 has obtained a part of Survey

No. 60 on basis of an agreement from Vinyak Patil i.e.Survey No.

60, hissa No. 1/1-1/A. It further appears that a part of Survey No.

60 is being used by the project proponent as per consent letter

given by owner of Survey No. 60, hissa No. 1/5-1/31-1/33. The

applicant on the other hand, has not proved that the Respondent

No. 3 has dumped the mining waste on land of any other farmer.

Nor there is any site inspection plan placed on record. On the

other hand, the project proponent placed on record documents

(Annexure R/3-5 and Annexure R/3-6) which go to show that he

converted the agricultural lands for non- agricultural use prior to

the alleged dumping of the mining waste on the part of Survey

No. 60, bearing hissa No. 1/1-1/5. It appears that the Indian

Bureau of Mines (for short, IBM) approved this modified plan vide

letter dated 3-2-2011.

15. One of the contention of Learned Counsel for the applicant

is that the Respondent No. 3 (project proponent) unlawfully

expanded the mining activity. It is argued that approval of the

IBM is of no avail. It is further argued that the Respondent No. 3

was not legally entitled to dump the mining waste on adjoining

land because such an activity amounts to modification of the

mining Plan, without any approval and EC of the MoEF. We do

not agree. The use of the adjacent land with consent of the land

owners for dumping of the mining waste cannot be termed as

expansion of the mining activity or modification of the mining plan

as such.

16. It appears from the record that the Respondent No. 3 has

carried out certain excessive mining activity by way of extraction

of the ore beyond the permissible limits. It appears that the

District Collector has taken necessary action for recovery of the

penalty and price of the ore illegally extracted from the mine in

question. The issue is subjudice in the proceedings initiated by

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the District Collector under the Maharashtra Land Revenue Code

1966, and under Section 21 of the MMRD Act, 1957.

17. The applicant heavily relied upon report of Madhav Gadgil

committee. The applicant also relied upon the inspection report

of Deputy Director of Geology and Mining, Kolhapur. It appears

that subsequently the Deputy Director of Geology and Mining

issued letter dated 22.5.2011 whereby clarification is given to the

effect that due to oversight the encroached area was shown as

Survey No. 57/5 and the mining area was shown as Survey No.

57/1-4. The Deputy Director clarified the mistake. It is clarified

that actually the mining area is Survey No. 57/1, 2, 3(P) comprising

of 32.30 hectares. It is also stated that there is error in respect of

alleged encroached area shown to be part of Survey No. 57/5

though, it is Survey No. 57/3-(P) and Survey No. 57/4(P). As

stated before, the issue regarding so-called encroachment is not

an environmental issue. It appears that the joint inspection

Report of District Mining Officer, Deputy Director of Mining and

Director of Mining is to the effect that the Respondent No. 3

extracted ore beyond the limits of the mining area, out of Survey

No. 57/3 and 57/4. In case, the Respondent No. 3 has extracted

more ore, the Competent Authority may take suitable action for

recovery of the Net Present Value (for short, NVP) of such

extracted ore. The Competent Authority may recover penalty

from the Respondent No. 3. The Competent Authority may

discontinue the license for operating the mine after giving notice

to the Respondent No. 3.

18. The applicant made faint attempt to show that the

Respondent No. 3 has overburned the adjoining land (Survey No.

60) by way of dumping the mining waste. The applicant has filed

affidavits of Suresh Narayan Desai and Mansingh Desai. The

affidavits of these persons are identical with each other. As stated

before, they have some ill will against the respondent No. 3 due to

the criminal prosecution. The applicant failed to establish that the

respondent No. 3 overburned the adjoining lands. In our

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opinion, the application is filed without any scientific data or

report of an expert like Government land measurer. Hence we

have come to the conclusion that the applicant failed to prove the

allegation in the context of over dumping and thereby causing

loss to the agricultural produce or the trees. The map prepared

on basis of Google map or the information by way of affidavits of

interested persons cannot be treated as reliable and acceptable

data. It is not proved that the Respondent No. 3 has caused Air

and/ or noise pollution as alleged.

19. We deprecate the practice of filing such application in the

form of P.I. L. We find that the applicant has no locus standi yet

filed the application at the behest of disgruntled persons who did

not wish to come forward as applicants. We however, do not

think it proper to impose costs on the applicant because there

appears extraction of more than permissible quantity of the ore

from the leased mine. The Respondent No. 3 also acted unfairly

and as such it would be proper to direct the parties to bear their

own costs.

20. In view of the foregoing discussion, we are of the opinion,

that the application is without merits. It is liable to be dismissed.

We are further of the opinion that the issue regarding extraction

of more quantity of ore in excess of the outer limit shown in the

license will have to be kept upon. The other issues are answered

in negative. The Competent Authority may take proper action

against the Respondent No. 3 for recovery of the value of the ore

extracted from the mine, beyond the permissible limits. In the

result, the application is dismissed with no order as to costs.

(Dr. Devendra Kumar Agrawal) (Justice V.R. Kingaonkar) Expert Member Judicial Member

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