Dismissed

Binay Kumar Malik v. Union of India Ministry of Environment Forest & Climate Change

NGT11 Mar 2022Review Application No. 2/2022

Case brief

AI extract

What is this about?

The Tribunal dismissed a review application challenging a disposal order in an original application concerning quarry operations near a wildlife sanctuary. The Tribunal held the review was misconceived as facts remained unstared, expunging the imposition of costs.

What did the court decide?

The Review Application is dismissed; remarks imposing Rs. 25,000 cost on the applicant are expunged.

Binay Kumar Malik vs Union of India Ministry… — Constitutional and Fundamental Rights | NGT (2022)

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(In Chamber)

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BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA (Through Video Conferencing)

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Review Application No. 02/2022/EZ In

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Original Application No. 27/2021/EZ

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IN THE MATTER OF:

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Binay Kumar Malik, S/o Niranjan Malik, R/o Chhatrapur, P.O.-Kasabajaypur, Khantapada, Baleswar, Odisha, Pin – 733141,

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...Applicant(s)

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Versus

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1. Union of India, Through Secretary, Ministry of Environment, Forests and Climate Change, Indira Paryavaran Bhawan, Jorbagh Road, New Delhi – 110003,

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The District Magistrate, Balasore, Kacheri Road, Vivekananda Marg, Manikhamb, Odisha, Pin – 756001,

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Forest and Environment Department, Through Additional Chief Secretary, State Silvicultural Garden, Khandagiri, Bhubaneswar, Pin – 751003,

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Ministry of Environment, Forests and Climate Change, Through Scientist-E, Core 4B, 2^nd Floor, India Habitat Centre, Lodhi Road, New Delhi, Pin – 110003,

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State Pollution Control Board, Through Chairman, Paribesh Bhawan, A/118, Nilakantha Nagar, Unit-VIII, Bhubaneswar, Pin – 75102,

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Divisional Forest Officer, Balasore, Odisha – 756056,

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State Environment Impact Assessment Authority (SEIAA), Through Member Secretary, Odisha – 751022,

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...Respondent(s)

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CORAM: HON’BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER HON’BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER

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ORDER

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This Review Application has been filed by the Review Applicant, seeking review of the judgment and order of the Tribunal dated 23.12.2021 passed in Original Application No. 27/2021/EZ whereby the said Original Application was dismissed.

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The grounds taken in the Review Application read as under:-

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(a) Whether this Hon’ble Tribunal can deliver judgment only perusing counter affidavits of the Respondents ignoring rejoinder affidavit of the Applicant?

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(b) Whether this Hon’ble Tribunal can deliver judgment ignoring the pending Contempt Petition and other petitions pending before the Hon’ble Supreme Court of India in the same matter in which the present judgment was delivered?

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The Original Application No. 27/2021/EZ was dismissed on merit by the Tribunal by a detailed judgment dated 23^rd December, 2021, and in para 23 thereof it was observed that no rejoinder disputing the averments made in the affidavits of the District Magistrate, Balasore, Divisional Forest Officer, Wildlife, Balasore, SEIAA, Odisha and the Report of the Inspection Team annexed to the affidavit of the Odisha State Pollution Control Board, has been filed on behalf of the Applicant. The Tribunal also imposed a cost of Rs. 25,000/- (Rupees Twenty Five Thousands only) on the Applicant.

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Subsequent to the filing of the Review Application, the Office of the Tribunal enquired into the matter as to whether any rejoinder affidavit had been filed or not and it was discovered that one rejoinder affidavit had, in fact, been filed on 22.11.2021 but by mistake it was placed in a wrong file.

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In the Review Application, the Review Applicant has stated that one Dibakar Bhoi & Others have filed a Contempt Petition (C) Dy. No. 13336 of 2021 before the Hon’ble Supreme Court for violation of the order of the Hon’ble Supreme Court dated 04.12.2006 passed in Writ Petition (C) No. 460 of 2004 which is stated to be pending disposal before the Hon’ble Supreme Court.

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In the rejoinder affidavit of the Original Application No. 27/2021/EZ, which we have now placed on record, a similar plea has been taken and the order of the Hon’ble Supreme Court dated 04.12.2006 passed in Writ Petition (C) No. 460 of 2004 has been quoted therein which is also reproduced herein under:-

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IN THE SUPREME COURT OF INDIA

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WRIT PETITION NO. 460/2004

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GOA FOUNDATION V/S UNION OF INDIA

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ORDER DATED 04.12.2006

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UPON hearing counsel the Court made the following

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O R D E R

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The order dated 16^th October, 2006 refers to a letter dated 27^th May, 2005 which was addressed by the Ministry of Environment and Forests (MoEF) to the Chief Wildlife Wardens of all States/Union Territories requiring them to initiate measures for identification of suitable areas and submit detailed proposals at the earliest. The order passed on that date was that MoEF shall file an affidavit stating whether the proposals received pursuant to the letter of 27^th

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May, 2005 have been referred to the Standing Committee of National Board for Wildlife under the Wild Life (Protection) Act, 1972 or not. It was further directed that such of the States/Union Territories who have not responded to the letter dated 27^th May, 2005 shall do the needful within four weeks of the communication of the directions of this Court by the Ministry to them.

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It seems that despite the letter dated 27^th May, 2005 and despite the Ministry having issued reminders and also bringing to the notice of the States/Union Territories the orders of this Court dated 16.10.2006, the States/Union Territories have not responded. However, we are told that the State of Goa alone has sent the proposal but that too does not appear to be in full conformity with what was sought for in the letter dated 27^th May, 2005.

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The order earlier passed on 30^th January, 2006 refers to the decision which was taken on 21^st January, 2002 to notify the areas within 10 km. of the boundaries of national parks and sanctuaries as eco-sensitive areas. The letter dated 27^th May, 2005 is a departure from the decision of 21^st January, 2002. For the present, in this case, we are not considering the correctness of this departure. That is being examined in another case separately. Be that as it may, it is evident that the States/Union Territories have not given the importance that is required to be given to most of the laws to protect environment made after Rio Declaration 1972.

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The Ministry is directed to give a final opportunity to all States/Union Territories to respond to its letter dated 27^th May, 2005. The State of Goa also is permitted to give appropriate proposal in addition to what is said to have already been sent to the Central Government. the communication sent to the States/Union Territories shall make it clear that if the proposals are not sent even now within a period of four weeks of receipt of the communication from the Ministry, this Court may have to consider passing orders for implementation of the decision that was taken on 21^st January, 2002, namely, notification of the areas within 10 km. of the boundaries of the sanctuaries and national parks as regards to the precautionary principles. If the States/Union Territories now fail to respond, they would do so at their own risk and peril.

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The MoEF would also refer to the Standing Committee of the National Board for Wildlife, under Section 5 (b) and 5 (c) of the Wild Life (Protection) Act, the cases where environment clearance has already been granted where activities are within 10 km. zone.

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List the matter after eight weeks.

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(N. Annapurna) 5/12/06 (V.P. Tyagi) 5/12/06 Court Master Asstt. Registrar.”

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The Review Applicant in his Review Application has stated that the State Respondents had knowledge of the filing of the Contempt Petition before the Hon’ble Supreme Court but they have suppressed the material fact and the order of the Hon’ble Supreme Court from this Tribunal and have attempted to mislead the Tribunal leading to the passing of the judgment and order.

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In para 4 of the rejoinder affidavit filed in Original Application No. 27/2021/EZ, the Applicant has prayed that the Original Application No. 27/2021/EZ be adjourned awaiting decision of the Hon’ble Supreme Court.

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From the order of the Hon’ble Supreme Court dated 04.12.2006, we find that the Chief Wildlife Wardens of all States/UTs were required to initiate measures for identification of suitable areas and submit detailed proposals in pursuance of the letter of the Ministry of Environment, Forests and Climate Change dated 27^th May, 2005. The Ministry of Environment, Forests and Climate Change was required to file an affidavit stating whether the proposals have been received pursuant to its letter of 27^th May, 2005 which had been referred to the Standing Committee of the National Board for Wildlife under the Wildlife (Protection) Act, 1972 or not. The Hon’ble

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Supreme Court, therefore, directed the Ministry of Environment, Forests and Climate Change to give final opportunity to all the States/UTs to respond to its letter of 27^th May, 2005 and if the said proposals are not sent within four weeks on receipt of the communication from the Ministry of Environment, Forests and Climate Change, the Hon’ble Supreme Court may have to consider passing orders for implementation of the decision that was taken on 21^st January, 2002, namely, notification of the areas within 10 kilometers of the boundaries of the sanctuaries and national parks as eco-sensitive areas with a view to conserve the forest, wildlife and environment having regard to the Precautionary Principles.

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In para 4 of the rejoinder it is again alleged by the Applicant that quarrying at Kathagochi village under Nilagiri Tahasil in the District of Balasore is within 10 kilometers of the boundaries of National Park Kuldiha which is an eco-sensitive area and, therefore, within the purview of the order of the Hon’ble Supreme Court dated 04.12.2006 and the pending Contempt Petition (C) Dy. No. 13336 of 2021.

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We may advert to the findings which have been recorded in our judgment and order dated 23.12.2021 wherein this Tribunal has clearly noted that the Eco-Sensitive Zone around the Kuldiha Wildlife Sanctuary has been notified by the Govt. of India, Ministry of Environment, Forests and Climate Change vide Notification No. S.O. No. 2539(E) dated 09.08.2017 in which the list of villages falling within this Eco-Sensitive Zone have been enumerated and in this list the name of ‘Kathagochhi’ village under Nilagiri Tahasil of Balasore District does not find mention. The Tribunal has also

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taken note of the documents on record that the stone quarry site is not adjacent to the Swarna Chuda Reserve Forest.

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The Tribunal has also noted that a Writ Petition (C) No. 12084 of 2019 (Nilgiri Khadan ‘O’ Pathara Silpa Sangathan through its President Santanu Mahapatra Vs. State of Odisha) was filed in the Hon’ble Odisha High Court wherein directions were sought against the opposite parties 1 to 4 to allow execution of lease deed in the matter of grant of quarry lease, namely, Kathagochhi Stone Quarry of Tahasil-Nilagiri, District-Balasore, and the said Writ Petition was disposed of by a Division Bench of the Hon’ble Odisha High Court vide its judgment and order dated 08.12.2020 with a direction to the Respondent Authority concerned to go ahead with the execution of the lease deed and the entire exercise involving start of operation of the quarry lease may be completed within a period of a fortnight from the date of communication of the judgment. The directions given in para 12 of the judgment of the Hon’ble Odisha High Court have been quoted by the Tribunal in its judgment.

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The Tribunal has also noted that a Joint Inquiry was conducted in pursuance of the directions of the National Human Rights Commission and penalty was also imposed by the Sub-Collector, Nilagiri Tahasil and Tahasildar-Nilagiri, on the violators involved in illegal mining being carried out in the area in question and thereafter a report was filed by the District Magistrate, Balasore on 17.03.2018 stating that illegal stone quarry operations near the village had stopped and there were no excavated stones stacked on the road side of the Reserve Forest from Chandipur Chhaka to Maa Kathagocchiani Temple nor were any excavated stones being

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transported in heavy vehicles. The Tribunal also noted that the report of the Inspection Team which had visited the village and recorded the statements of local villagers whose names are mentioned in para 20 of the Tribunal’s judgment and who have stated that no dynamites were being used and no blasting activities was being carried out by the lessee.

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The Tribunal also noted that Plot No. 1761/736 which is stated to be the plot in dispute does not exist anywhere near the Kathagochhi village nor does it fall within the Eco-Sensitive Zone of Kuldiha Wildlife Sanctuary.

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All these facts culled out by the Tribunal from the affidavits filed by the Respondents in the Original Application including the inspection reports which have not been denied by the Applicant in his rejoinder affidavit other than seeking adjournment of the case awaiting pending disposal by the Hon’ble Supreme Court. On the facts of the present case, we see no reason for adjourning the hearing of the Original Application.

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In the circumstances, the Tribunal was right in observing in para 23 of its judgment that the averments made in the affidavits of the District Magistrate, Balasore, Divisional Forest Officer, Wildlife, Balasore, SEIAA Odisha and Report of the Inspection Team annexed to the affidavit of the Odisha State Pollution Control Board, have not been denied by the Applicant.

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In this view of the matter, we find that judgment of the Tribunal dated 23.12.2021 passed in Original Application No. 27/2021/EZ does not suffer from any error of fact or law apparent on the face of

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the record. The Review Application is thoroughly misconceived and same is accordingly dismissed.

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We, however, expunge our remarks in made in para 25 of the judgment dated 23.12.2021 where it imposes cost of Rs. 25,000/(Rupees Twenty Five Thousands only) on the Applicant.

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There shall be no order as to costs.
.....................................
B. Amit Sthalekar, JM
..................................
Saibal Dasgupta, EM
March 11, 2022,
Review Application No. 02/2022/EZ
In
Original Application No. 27/2021/EZ
AK

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Binay Kumar Malik v. Union of India Ministry of Environment Forest & Climate Change

Case brief

What is this about?

What did the court decide?

Binay Kumar Malik v. Union of India Ministry of Environment Forest & Climate Change

Case brief

What is this about?

What did the court decide?

What the court decided

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