BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN …awsassets.wwfindia.org/downloads/shivaji_suryabhan_sangle_vs_state_of_maharashtra_and...Tribunal Act, 2010, as a result of transfer of

(J) Application No.12(THC)/2013 (WZ) 1

BEFORE THE NATIONAL GREEN TRIBUNAL

(WESTERN ZONE) BENCH, PUNE

APPLICATION No. 12(THC)/2013(WZ)

CORAM:

Hon’ble Mr. Justice V.R. Kingaonkar

(Judicial Member)

Hon’ble Dr. Ajay A. Deshpande

(Expert Member)

B E T W E E N:

Shivaji Suryabhan Sangle

Aged : 37 years, Occ : Agril.

R/o. Tophkhana, House No.677,

Ahmadnagar, Tq. & Distt :

Ahmednagar.

….Applicant

A N D

1. The Union of India

Through : Secretary,

Ministery of Environment & Forest,

New Delhi

2. The State of Maharashtra,

Through : Secretary,

Revenue and Forest Department,

Mantralaya, Mumbai 12.


3. The Chief Wildlife Warden,

Maharashtra Forest Department,

Through : The Secretary

Revenue and Forest Department,

Mantralaya, Mumbai 12.

4. The Divisional Forest Officer,

Maldhok Sanctuary Forest,

Karjat, Tq. Karjat,

District : Ahmdnagar

5. The Tahsildar Karjat,

District : Ahmadnagar

6. The Tahsildar Shrigonda,

District : Ahmadnagar

7. The M/s. Reliance Gas Tansportation,

Infrastructure Limited, Pune,

Vishal Arked Building Chinchwad

Station Road, Pune.

…Respondents

Counsel for Applicants :

Mr. N.J. Pahune Patil,

Mr. S.D. Bade,

Counsel for Respondent No.1 to 6 :

Mr. G.T. Chavan, w/.

Mr. A.S. Mulchandani, A.G.T.,

Counsel for Respondent No.7 :

Mr. Parimal and B.H. Nikte

DATE : 11th September, 2014


J U D G M E N T

1. Originally, Applicant Shivaji Suryabhan Sangle filed

Writ Petition No.6060 of 2009 before the Hon’ble High

Court of Judicature Bombay, Bench at Aurangabad. The

Writ Petition was transferred to this Tribunal by Order of

Hon’ble High Court dated 30th September 2013. The Writ

Petition was, thereafter, registered as Application U/s.

14(1)(2) read with sections 15 and 18 of the National Green

Tribunal Act, 2010, as a result of transfer of the Writ

Petition.

2. Briefly stated, case of the Petitioner is that in Karjat

Taluka, District: Ahmednagar, there is sanctuary of

Maldhok i.e. Great Indian Bustard, which is declared as

one amongst the protected species of birds and therefore,

no project activity can be undertaken in the area of the

forest land. Respondent No.7 is an Industry dealing in

transportation of Industrial gas through underground pipe

line. Respondent No.7 proposed to lay down a metallic

pipeline through lands within area of the protected Great

Indian Bustard Sanctuary i.e. Maldhoks of Taluka Karjat

one (1) mtr, deep below the earth. Respondent No.7

cannot be permitted to lay down such pipelines through

forest and sanctuary area of the Great Indian Bustard


Sanctuary. When inquiry was made to the Respondent

Nos. 5 and 6, the Petitioner received evasive replies about

the permission sought by the Respondent No.7 and such

kind of permission granted in favour of Respondent No.7.

Tahsildar of Karjat directed the petitioner to contact

Respondent No.7 in order to know whether such

permission was obtained for purpose of laying down the

pipeline as required. So also, Respondent No.4 failed to

give required information sought by the Petitioner.

Respondent Nos. 1 to 6 failed to prohibit Respondent No.7

from laying down pipeline through Great Indian Bustard

sanctuary within the area of Karjat Taluka without

following due procedure of Forest Law. The project of

laying down such pipeline has caused disturbance in the

nearby area, damage to the forest life, endangered the

environment as well as life of the protected birds i.e. Great

Indian Bustard. The Petitioner alleges that if such kind of

activity is not arrested at proper time, it will result in the

irreparable loss to the forest life. Consequently, the

Petitioner sought mandatory injunction against the

Respondent No.7 to stop the work of laying down

underground pipeline in protected sanctuary of Taluka

Karjat and other forest lands within Karjat and Shrigonda

Talukas of Ahmednagar District.


3. By filing reply-Affidavit of Arun Pawar, Tahsildar of

Karjat, Respondent No.5 resisted the petition. According

to Respondent No.5, underground pipeline of the

Respondent No.7 goes through Karmala, Karjat and

Shrigonda Talukas of Ahmednagar District through private

agricultural lands, besides other lands in other Districts

where the Great Indian Bustard Sanctuary within territory

of Maharashtra is situated. It is stated that the work

carried out by Respondent No.7 Company does not come

within domain of Respondent No.5 and as such is not

controlled by it. In other words, Respondent No.5 is un-

concerned with the project work of the laying down

pipeline and therefore, has no concern with the same.

4. Respondent Nos.2, 3 and 4 filed a common reply-

Affidavit. According to them, the pipeline laid by

Respondent No.7 does not pass through any part of the

forest area of Great Indian Bustard Sanctuary. They

submit that the underground pipeline passes through the

agricultural lands of agriculturists which is declared as a

sanctuary in accordance with Wild Life (Protection) Act

1972, so it is necessary to obtain permission of the

National Board for Wild Life (NBWL) for carrying out any

transaction of pine line activity in the said area which is

declared and part of the Sanctuary under provisions of the


Wild Life (Protection) Act, 1972. They would submit that

by order dated 9-7-2007, such proposal was submitted by

the Central Empowered Committee of the Hon’ble Supreme

Court of India. The proposal was approved by the

competent authority. Again on verification, it was found

that the project does not fall within forest area of Great

Indian Bustard Sanctuary, Karjat Taluka, Ahmadnagar

District as well Karmala Taluka in Solapur District.

Respondent No.7 has deposited amount of Rs.26 crores in

the account of Compensatory Afforestation Fund (CAMPA)

on 19th February 2008 because in some other parts, the

underground pipelines is within the forest area of the

protected Great Indian Bustard Sanctuary though not in

the above referred three (3) Districts.

5. Respondent No.7 filed Affidavit of Rajiv K. Gupta,

Area Manager in rebuttal and reply. His Affidavit purports

to show that the Reliance Gas Transportation

Infrastructure Ltd. has undertaken the project of national

importance of setting up pipeline for transportation of

natural gas, namely, East-West Pipeline. The underground

pipeline, passes from Kakinada in the state of Andhra

Pradesh as well as state of Karnataka and Maharashtra

upto Bharuch in the State of Gujarat, traversing the

distance of about 1380 km. including 563 km in the State


of Maharashtra within seven (7) Districts of Latur,

Osmanabad, Solapur, Ahmednagar, Pune, Raigad and

Thane. It is stated that a part of the underground pipeline

is laid in the Great Indian Bustard Sanctuary with the due

permission of Hon’ble Supreme Court of India, by payment

of huge amount in Compensatory Afforestation Fund

(CAMPA) and therefore, there is no illegality committed by

Respondent No.7. It is stated that the pipeline is already

commissioned and as such, grant of prohibitory injunction

will cause irreparable damage to Respondent No.7.

Respondent No.7 alleges that the underground pipeline is

completely covered by the surface vegetation and therefore,

no damage is or will be ever caused to the environment.

Respondent No.7 alleges that the Application is filed with

malafide intention to create hurdles in the project. It is

also contended that this Tribunal has no jurisdiction to

entertain the Application because this Application is filed

like Application for Contempt of the directions issued by

the Hon’ble Supreme Court of India. On these premises,

Respondent No.7 sought dismissal of the Application.

6. Considering rival pleadings of the parties, it is

essential to address following issues :


i) Whether laying down of the underground pipeline

by Respondent no.7 passes through forest area and

requires Forest Clearance as such ?

ii) Whether there is a private forest notified under

any Government Notification as birds sanctuary in the

area where the project in question is proposed to be

implemented or has been already implemented ?

iii) Whether the proposed project suffers from any

illegality and therefore, is liable to be struck down ? Or

that if implemented, the pipeline is required to be

removed in order to restore the original position ?

7. At the outset, let it be noted that any question

relating to the implementation of the Wild Life (Protection)

Act, 1972, is outside purview of the Jurisdiction of the

National Green Tribunal Act, 2010. Section 14(1) of the

N.G.T. Act, 2010 reads as follows :

“The Tribunal shall have the jurisdiction over all

civil cases where a substantial question relating to

environment (including enforcement of any legal right

relating to environment), is involved and such

question arises out of the implementation of the

enactments specified in Schedule I”.

Schedule-I

1. The Water (Prevention and Control of Pollution)

Act, 1974.

2. The Water (Prevention and Control of Pollution)

Cess Act, 1977.

3. The Forest (Conservation) Act, 1980.


4. The Air (Prevention and Control of Pollution) Act,

1981.

5. The Environment (Protection) Act, 1986.

6. The Public Liability Insurance Act, 1991,

7. The Biological Diversity Act, 2002.

Thus, it is quite clear that only implementation of

the seven (7) Enactments enlisted in Schedule I, will be

within the jurisdiction of the NGT Act. Wild Life

(Protection) Act is outside the list of those seven (7)

enactments and hence, the National Green Tribunal (NGT)

has no jurisdiction to decide any question relating to

implementation of the provisions of that Act. Obviously,

we cannot examine whether any land within the area of

Karjat or Shrigonda Talukas of Ahemadnagar District falls

within protected or notified Sanctuary of Great Indian

Busturd (GIB).

8. Perusal of the record shows that the Respondent

No.7 submitted an Application to the Hon’ble Supreme

Court as directed in “T.N. Godavarman Thirumalpad

Vrs. Union of India and Ors” (I.A. No.2116-2117 of

2007). The Hon’ble Supreme Court of India granted

permission to the Respondent No.7 to lay down such

pipelines as per the Report of the Standing Committee on

National Board for Wild Life and no alternative is

recommended to the proposal as per minutes of the


meeting held on 10th September 2007 subject to

compliances of certain conditions. It appears that due

compliances were made in this behalf.

9. Now, it is pertinent to note that Respondent No.7

felled 735 trees without permission of the competent

authority. By Order dated 23rd September, 2010. Sub

Divisional Officer, Karjat directed Respondent No.7 to pay

penalty of Rs.43,53,242/- within period of one month and

also plant double of the trees in number, of the trees which

were felled. Respondent No.7 preferred R.T.S. Appeal

No.270 of 2010 before the Additional District Collector,

Ahemadnagar which was dismissed. Obviously, it is

difficult to say that Respondent No.5 did not take any care

or joined hands with Respondent No.7.

10. As regards Forest Clearance issue is concerned,

there is obviously no material to show that any part of the

agricultural land was declared as private forest and

therefore, permission from any competent authority was

required for the purpose of clearance of any part of the

area. Felling of non-scheduled trees was found to be illegal

and therefore, Respondent No.7 was held responsible by

the competent authority. As stated before, penalty was

imposed by the competent authority after giving Show

Cause Notice to Respondent No.7. In case such penalty is


not recovered, the petitioner is at liberty to point it out to

the Collector for execution of the said order. Still, however,

there is no reason to infer that Forest Clearance

permission was necessary for the Respondent No.7.

Respondent No.7 is said to have damaged environment due

to digging of agricultural lands. It may be mentioned here

that land of the Petitioner is not subjected to any kind of

digging or damage. He has not placed on record as to how

he represents interest of any group of agriculturists. Copy

of the letterhead (Exh.B) shows that the petitioner is

District head of “Akhil Bhartiya Sena” of which the Chief is

Arunbhai Gawali. Thus, it is a Political Organization of

which the petitioner is District Representative. In other

words, the Petitioner is not environmentalist nor, he

represents any organization of agriculturists who suffered

loss due to the project in question. The Petitioner, at the

relevant time, appears to have filed the petition with a view

to gain some political advantage. However, there is hardly

any merit in the petition and therefore, it is liable to be

dismissed.

11. In the result, the petition stands dismissed with

direction that the Collector, Ahmednagar shall verify

whether Respondent No.7 has deposited the amount

regarding the penalty imposed and the amount directed to


be deposited in CAMPA as per directions of the Hon’ble

Supreme Court of India and if such direction is not yet

complied with then to recover the said amount as if it is

land revenue arrears by attachment of property of

Respondent No.7 and conducting sale thereof by public

auction within period of four (4) months, hereafter.

No costs.

.…………….……………….,JM (Justice V. R. Kingaonkar)

..…….……………………., EM (Dr. Ajay A. Deshpande)

Date : 11th September, 2014

Documents

BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN …awsassets.wwfindia.org/downloads/shivaji_suryabhan_sangle_vs_state_of_maharashtra_and...Tribunal Act, 2010, as a result of transfer of