1 BEFORE the NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Application No.56 of 2012 (SZ) in the Matter of M/S. Janajagrithi Sa
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1 BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Application No.56 of 2012 (SZ) In the matter of M/s. Janajagrithi Samithi Rep. by its Executive President Nandikur Village, Udupi District .. Applicant Vs. 1.Union of India through its Secretary Ministry of Environment and Forest New Delhi 2. The Government of Karnataka Through its Secretary Ministry of Environment, Ecology Ports and Water Transports, Bangalore 3. The Karnataka Industrial Area Development Board Through its Chairman, Bangalore 4. The Principal Chief Conservator of Forests Bangalore 5. M/s. Synefra Engineering & Construction Ltd., through its Managing Director, Pune .. Respondents Counsel appearing for the applicant M/s. Cliton D’Rozario Counsel appearing for the respondents For respondent No.1 .. Smt. M. Sumathi For respondent Nos.2 & 4 .. Mr. Devaraj Ashok, Govt. Pleader 2 For respondent No.3 .. Mr. Basavaraj V. Sabarad For respondent No.5 .. M/s. Sanjay Upadhyay & K. Harish O R D E R Quoram: Hon’ble Shri Justice Dr. P.Jyothimani, Judicial Member Hon’ble Shri P.S. Rao, Expert Member ---- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------ Delivered by Hon’ble Shri P.S. Rao Expert Member 28th October, 2016 ------ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------- Whether judgment is allowed to be published on the Internet .. Yes/No Whether judgment is to be published in the All India NGT Reporter .. Yes/No The applicant – Society, registered under the Societies Registration Act, 1860 is consisting of the residents of Nandikur, Yellur, Santhur, Thenka, Padebettu, Palimar, Nadsal and other neighbouring Villages of Udupi District of Karnataka. The applicant Society is stated to have sponsored and organised Kodachadri Ecologically Sensitive Area to make an ecological study in the Western Ghats and submitted certain proposal to the Ministry of Environment and Forests in the year 2006. The Society is also stated to have made certain study on the coastal strip of Karnataka, consisting of Dakshina Kannada and Udupi Districts. The Government of Karnataka is stated to have granted permission to M/s. Synefra Engineering & Construction Ltd., viz., the fifth respondent herein ( formerly known as Suzlon Infrastructure Ltd) for the use of forest lands to an extent of about 115 acres in Survey Nos.155 (51.23 acres) and 169 (63.55 acre) of Nandikur Village, Udupi District for industrial purposes. 2. According to the applicant Society, the said area comprising of 115 acres in Survey Nos.155 and 169 of Nandikur Village is called ‘’Devara Kadu’’ which means ‘’God Forest’’ or ‘’Sacred Grove’’. According to the applicant, the entire area, including the trees, is unique in nature and Devara Kadu is dedicated to Goddess Mahishasura Mardhini Sri Durga Parameshwari wherein offering of some poojas have been conducted for more than 400 years. The applicant also states that the forest area is the habitat of various species of fauna like peacocks, wild boars and reptiles apart from species of migratory birds and the Mulki River Estuary is located nearby. The tradition 3 mandates maintenance of Devara Kadu along with nearby waterbody so that the forest would support the water tank in its catchment by percolating rain water into these tanks. 3. It is stated that the second respondent – Government of Karnataka has handed over possession of Devara Kadu of Nandikur Village to the third respondent – Karnataka Industrial Area Development Board (KIADB) on 15.3.2007. The applicant, thereafter made a representation on 9.1.2008 before the KIADB and in the communication dated 30.1.2008, the third respondent disclosed that on receipt of Rs.8,52,66,441/- from the fifth respondent, possession of the said Devara Kadu has been transferred by the third respondent to the fifth respondent. It is also stated that from the website of the Ministry of Commerce, Government of India, it is learnt that the Government had notified 259.32622 Hectares of the area in the said place as Special Economic Zone (SEZ) in favour of the fifth respondent on 11.9.2007 under Special Economic Zones Act, 2005 for the purpose of manufacturing Hi-tech Engineering Products and related services and the Devara Kadu is stated to be falling within the notified area for which the fifth respondent was appointed as a developer for SEZ. The fifth respondent, which undertakes to manufacture wind mill components for renewable energy production, is attempting to use the Devara Kadu for non-forest activity by establishing the polluting industrial activities without obtaining permission under the Forest (Conservation) Act, 1980. It is stated that the fifth respondent has already set up a manufacturing unit and developed plots in the SEZ area. However, according to the applicant, no activity in Devara Kadu area has been attempted till recently. The applicant is stated to have made many representations to cancel transfer of Devara Kadu to the fifth respondent. However, there has been no response. 4. It is stated that on 31.10.2009 the Karnataka State Environment Impact Assessment Authority (SEIAA) has considered the proposal of the fifth respondent to modernise and expand its project by constructing a manufacturing unit of windmill components, setting up an assembly unit of windmill being used in the production of renewable energy and setting up of a unit providing hi-tech engineering products and related services. The State Level Expert Appraisal Committee (SEAC) in the proceeding dated 31.10.2009 is stated to have given opinion that public hearing for the said project is exempted under the EIA Notification, 2006. However, the applicant has 4 stated that the project of the fifth respondent does not fall under ‘’B2’’ category and therefore the ‘’public hearing’’ is mandatory. According to the applicant, the SEIAA of Karnataka was aware of the Terms of Reference (ToR) which stipulates study on loss of habitat of fauna, including endangered species having an impact on ecology. The applicant is stated to have made another representation on 7.3.2010 to the Hon’ble Minister for Environment, Government of Karnataka to withdraw the acquisition of Devara Kadu. There was no response. However, the applicant was informed on 17.3.2010 that the Deputy Conservator of Forests has given permission to the fifth respondent to fell trees in Devara Kadu. The applicant also states that he was informed on 20.4.2010 by the Deputy Conservator of Forests, Kundapura Division that the land claimed as Devara Kadu is neither ‘’notified forest’’ nor ‘’deemed forest’’ and hence it is outside the purview of the Forest (Conservation) Act, 1980 and permission to fell 90 trees was already given to the fifth respondent which has already felled 30 trees and transported the same to the government warehouse and the remaining trees are to be cut which was unable to be proceeded with because of the order of the Range Forest Officer, Udupi Division. It is stated that the fifth respondent has also identified another 431 trees in the same survey numbers required to be felled for expansion. The applicant apprehends that the fifth respondent is likely to grant permission to cut the remaining trees and in as much as it was the opinion of the SEAC that the ’’public hearing’’ is not required, the SEIAA of Karnataka is likely to issue Environmental Clearance (EC) to the fifth respondent for construction, modernisation and expansion of its manufacturing units. The applicant challenges the conduct of the second respondent – State Government in handing over Devara Kadu to the third respondent which is against the order of the Hon’ble Supreme Court, since non-forest activity is sought to be taken up in forest land. 5. It is also stated that one, Mr. N. Madhavaraya Bhat, the Managing Trustee of Sri Durga Parameshwari Temple, Nandikur has sworn an affidavit stating about the existence of the temple and the rituals, customs, traditions and sacredness of Devara Kadu, a copy of which has been filed by the applicant. Raising various legal grounds, relying upon Section 2 of the Forest (Conservation) Act, 1980, the decision of the Hon’ble Apex Court in T.N. GODAVARMAN VS. UNION OF INDIA (W.P.No.202 of 5 1995 dated 12.12.1996) and emphasising the duty of the Government to preserve Devara Kadu, apart from many other grounds, the applicant has moved the said application for a direction against the respondents to stop the illegal felling of trees and use of forest land for non-forest activity in violation of the Forest (Conservation) Act, 1980; to direct the respondents to restore the pristine environment of the area to its natural state and to direct the first respondent to take stringent action against the fifth respondent for carrying out non-forest activity in forest land in violation of the Forest (Conservation) Act, 1980. 6. The first respondent MoEF & CC in the reply dated 8.8.2013, while reiterating the direction of the Hon’ble Supreme Court in T.N. GODAVARMAN VS. UNION OF INDIA (W.P.No.202 of 1995 dated 12.12.1996) by explaining the meaning of ‘’forest’’, has stated that the averments in the application are pertaining to the State Government. It is also stated that in case the land in question is recorded as ‘’Devara Kadu’’ in the revenue records, as alleged by the applicant, it will attract the provisions of Forest (Conservation) Act, 1980 which prohibits non-forest activity in forest land. It is also stated that MoEF & CC has not given any permission under the Forest