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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2736 OF 2015
Grampanchayat Ambegaon
Taluka Mulshi,
District Pune
Through the Sarpanch
Dattatray Maruti Marne,
Age- Adult, Occu. Social Service,
District-Pune ....Petitioner.
Vs.
1 State of Maharashtra
[Summons to be served on the Learned
Government Pleader appearing for
State of Maharashtra under Order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
2 The Secretary,
Revenue and Forest Department,
And the Officer on Special Duty,
(Appeal),
Government of Maharashtra,
Mantralaya,
Mumbai 400 032.
Industrial Assurance Building,
First Floor, J.T. Road,
Churchgate,
Mumbai 400 020.
3 Additional Commissioner,
Pune Division,
Pune, Collector Office Pune.
4 The Honourable Minister [Revenue],
Government of Maharashtra,
Mumbai 400 032.
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[Summons to be served on Respondent
No. 1,2 3 and 4 on the Learned
Government Pleader appearing for
State of Maharashtra under Order XXVII,
Rule 4 of the Code of Civil
Procedure, 1908].
5 Shri. Babanrao Dattatray Bhilare,
Office : M/s. Om Sai Industrial Ltd.,
Residing at : Bhilarewadi,
Taluka Mulshi, District Pune.
6 Shri. Vinayak Mahadeo Nimhan,
Age 46 years,
Occ : Business and Social Service,
Residing at Survey No. 19,
Jhunj Bunglow, Someshwar Pashan,
Pune 411 008.
7 Shri. Nitin Shamrao Palekar,
Adult, Occ : Business,
Residing at Office No. 35/36
Yashwantrao Chavan Complex,
Lonawala, Taluka Maval,
District Pune 410 401.
8 Shri. Babanrao Dattatray Bhilare,
Adul, Occ : Business,
R/at 81/6, Gadiya Estate,
Paud Road, Kothrud,
Pune 411 038.
9 M/s. Sunny Stone Group,
Partnership Firm,
Having its registered office at
446, Gopibhawan, Shivajinagar,
Pune 411 005.
10 The Regional Officer
Maharashtra Pollution Control Board,
Kalpataru Point, 2nd - 4th Floor,
Opp. Cine Planet Cinema,
Near Sion Circle,
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Sion (E), Mumbai 400022.
11 The State Level Expert Appraisal Committee,
Having its office at Environment Department,
Government of Maharashtra, 15th Floor,
New Administrative Building,
Mantralaya,
Mumbai 400032.
12 The Secretary,
Ministry of Environmental Forest,
Government of India,
New Delhi.
[Summons to be served on the Learned
Government Pleader appearing for
Union of India under Order XXVII,
Rule 4 of the Code of Civil
Procedure, 1908].
13 District Mining Officer,
Collector Office
Pune 411001. ...Respondents.
Mr. A.V. Anturkar, Senior Counsel a/w Mr. Dormaan J. Dalal i/by Mr.
Sugandh B. Deshmukh for the Petitioner.
Mr. G.S. Godbole a/w Mr. Hemant Ghadigaonkar for Respondent No.5.
Mr. V.N. Sagare, AGP for the State.
CORAM : R.M. BORDE AND
A.S. GADKARI, JJ.
th Reserved on : 7 FEBRUARY 2018 Pronounced on :16th FEBRUARY 2018.
JUDGMENT (PER R.M. BORDE, J.):-
Heard. Rule. With the consent of the parties, the Petition is taken up for final disposal at the admission stage.
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ssm 4 wp273615.doc 2 The Petitioner-Village Panchayat, Ambegaon Tal. Mulshi,
District Pune has approached this Court with a request to issue writ of certiorari or any other writ or direction in the nature of writ of certiorari for quashing and setting aside the order passed by the Secretary and Officer on Special Duty (Appeals), Revenue and Forest Department, dated 24 th December 2014, thereby quashing and setting aside the order passed by the Additional Collector, Pune dated 30th June 2014. The Petitioner is also praying for issuance of direction to the Respondents for quashment of the recommendation made by the State Level Expert Appraisal Committee in its 75th Meeting dated 14/15 March 2014 and also for setting aside the impugned Environmental Clearance dated 1 st January 2015, issued by the State Level Environment Impact Assessment Authority. 3 The grievance relates to the grant of mining permission on 7 th May 2010 in favour of Respondent No.5 for conducting mining activity in the private land bearing Gat Nos. 498, 499, 500, 501, 502, 503, 504, 505 and 510 situate at Village Bhilarewadi, Taluka Mulshi, District Pune. The total area of the property is stated to be 9 Hectares and 73 Ares. The property belongs to Respondent No.5-Babanrao Dattatraya Bhilare. On consideration of an application tendered by Respondent No.5 on 7 th May 2010, the Additional Collector was pleased to grant permission for 4/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 5 wp273615.doc conducting mining activities for a period of 10 years. At the relevant time, the village Panchayat was pleased to adopt the resolution on 26 th February 2008, granting no objection in favour of Respondent No.5 on fulfillment of certain conditions. According to the Petitioner, since the terms and conditions have not been satisfied, the resolution adopted by the village Panchayat earlier, was revoked and the NOC and the consent granted earlier, came to be terminated on 26th January 2014. A complaint was made by the Petitioner to the Regional Officer, Maharashtra Pollution Control Board on 24th February 2014, alleging that the activities of Respondent No.5 are creating harmful impact on the environment. Similar complaint was also made to the Tahasildar, Taluka Mulshi on 25 th November 2011 and 15th March 2012. The Additional Collector was pleased to grant stay to the permission accorded earlier in favour of Respondent No. 5 and directed him to stop the work by an order dated 24 th March 2014. Respondent No.5 preferred a revision challenging the order passed by the Collector. The Revisional Authority stayed the order passed by the Collector and directed him to dispose of the application tendered by the Petitioner on its own merit. The Additional Collector passed the final order on 30 th June 2014. The Additional Collector was pleased to direct the cancellation of mining lease granted in favour of Respondent No.5 on 7 th May 2010 and further directed that no excavation of Minor Minerals, such as stone and murum, should be done. Aggrieved by the order passed by the Additional 5/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 6 wp273615.doc Collector, Respondent No.5 approached the Additional Commissioner by preferring an Appeal. However, the Appeal came to be disposed of by the Additional Commissioner, holding that, he does not have jurisdiction to entertain the Appeal. Respondent No.5, aggrieved by the Judgment and order passed by the Additional Commissioner, approached the State Government by preferring a Revision Application seeking stay to the order passed by the Additional Collector. The Hon'ble Minister, by an order dated 9th September 2014, was pleased to stay the order passed by the Additional Commissioner.
4 The Petitioner, being aggrieved by the order directing the stay of the operation of the decision of the Additional Collector, approached this Court by preferring a Writ Petition bearing No. 8537 of 2014, which came to be disposed of by the learned Single Judge of this Court on 24 th September 2014. Respondent No.5 made a statement before the Court that he shall not conduct mining activities in Gat Nos. 504, 505, 509 and 510. Considering the statement made, this Court was pleased to dispose of the Writ Petition with a direction to Hon'ble Minister to decide the Revision Application finally on its own merit, within a period of two months from the date of the order. The Respondent opted to make a statement before the learned Single Judge that he would not conduct the mining activities in certain Gat numbers for the reason that, for conducting mining activities in 6/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 7 wp273615.doc respect of an area more than 5 Hectares, the Environmental Clearance Certificate from the Ministry of Environment and Forest Department, Government of India, is mandatorily required. Since there was no such clearance secured, the Respondent opted to make the statement that he would restrict the mining activity in less than 5 Hectares area. In fact, the Respondent tendered a proposal for Environmental Clearance Certificate to the State Level Impact Assessment Committee. The State Level Impact Assessment Committee has granted necessary certification in favour of the Respondent. It is the contention of the Petitioner that since the mining license itself is in respect of an area of 9 Hectares and 73 Ares, it was not permissible for Respondent No.5 to make a statement and exclude certain area with a view to escape from the mandatory requirement of securing and obtaining of a Environmental Clearance Certificate from the Ministry of Environment and Forest, Central Government. It is further contention of the Petitioner that even if the area, which Respondent No.5 claims is to be excluded, still the total area of the activity of Respondent No.5 exceeds 5 Hectares.
5 The Secretary and Officer on Special Duty (Appeals), Revenue and Forest Department, who decided the matter, allowed the same. According to the Petitioner, the O.S.D. ought to have considered the objections raised by the Petitioner. The objection raised by the Petitioner is 7/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 8 wp273615.doc referable to the adverse environmental effects on the public health and depletion of ground water level. The State Government, however, did not consider the issue, touching the environmental impact. In so far as the environmental concern, raised by the Petitioner before the State Government, it is recorded in the order that the correctness of the complaint of the Grampanchayat, Ambegaon can be verified from the report of the Maharashtra Pollution Control Board and State Level Expert Appraisal Committee. The concerned bodies would consider whether there was serious effect on the water level and the crop and the adverse impact on the public health, as a result of pollution caused because of the quarrying activities of the Respondent. It is further recorded in the order that Respondent No. 5 has already tendered an application in the month of April 2014, with the Maharashtra Pollution Control Board for obtaining the consent on the basis of quarrying lease for conducting the business of road metal quarry. It would be open for the Maharashtra Pollution Control Board, after detailed inquiry and inspection either to give consent or to deny the same. The State Government did not deal with the objection raised by the Petitioner and which were in fact dealt with Additional Collector.
6 The State Government, however, proceeded to direct the Additional Collector, Pune to take further action concerning the quarry 8/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 9 wp273615.doc lease after the decision of the State Level Expert Appraisal Committee and State Environmental Impact Assessment Agency and the Maharashtra Pollution Control Board.
7 The notification issued by the Ministry of Environment and Forests on 14th September 2006, mandates prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Government under Sub-Section (3) of Section 3 of the Environment (Protection) Act, 1986. The requirement of prior environmental clearance is prescribed in clause 2 of the notification. The Regulatory Authority, for grant of environmental clearance, in respect of the matters falling under category "A" of the schedule is the Central Government whereas, the matter falling under Category "B" of the Schedule, it is the State Environment Impact Assessment Authority. In view of paragraph 4 of the said notification, the projects and activities are broadly categorized into two categories- Category "A" and category "B", based on the spatial extent of potential impacts on human health and natural and man-made resources. It is recorded in paragraph 4(iii) that, all projects or activities included category "B" of the schedule, including expansion and modernization of existing projects or activities as specified in sub-paragraph (ii) of paragraph 2, or change in product mix as specified in sub-paragraph (iii) of paragraph 9/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 10 wp273615.doc 2, but excluding those which fulfill the general conditions stipulated in the schedule, will require prior environmental clearance from the State/Union Territory Environment Impact Assessment Authority, and State Environmental Impact Assessment Agency shall base on its decision on the recommendations of the State or Union Territory Level Expert Appraisal Committee which has to be constituted in accordance with notification. In the absence of a duly constituted State Environmental Impact Assessment Agency or State Level Expert Appraisal Committee, a category "B" project shall be treated as a category "A" project. It is thus, contended that a prior environmental clearance is warranted, which is not secured in the instant matter. So far as the stages of prior environmental clearance process for new projects is concerned, paragraph 7 prescribed stage 3, as a Public Consultation.
8 It is further provided in the said notification that in view of a note detailing General Conditions, any project or activity specified in category "B" will have to be treated as category "A", if located in whole or in part within 10 km. from the boundary of; (i) Protected areas notified under Wild Life (Protection) Act, 1972; (ii) Critically Polluted areas, as specified by Central Pollution Control Board from time to time; (iii) Notified Eco- sensitive areas and; (iv) inter-State boundaries and international boundaries. Relying upon the General Conditions, it is contended that 10/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 11 wp273615.doc even if the project in the instant matter is category "B", the parameters in respect of category "A" shall have to be applied.
9 The office memorandum issued on 24 th December 2013, by the Ministry of Environment and Forests has been relied upon. The mining projects of minor minerals with less than 50 Hectares of mining lease area are sub-classified as category "B1" and "B2" projects. It is provided that Brick earth or Ordinary earth mining projects having lease area less than 5 Hectares will be considered for granting environmental clearance, as per the guidelines issued by the Ministry of Environment and Forests Department on 24th June 2013. However, the Brick earth/Ordinary earth mining projects with mining lease area more than 5 Hectares but less than 25 Hectares and all other minor mineral mining projects with mining lease area of less than 25 Hectares, except for river sand mining projects will be appraised as category "B2" projects.
10 It is contended that, if the project involves an area of more than 5 Hectares, the Environmental Impact Assessment Authority would be a Central Government and for granting clearance, there is need to hold public hearing. It is contended that in order to avoid the public consultation, the area of mining lease is shown to be less than 5 Hectares. 11/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 :::
ssm 12 wp273615.doc 11 The defence of the Respondent, however, appears to be
unacceptable for the reason that the mining lease granted by the Additional Collector is in respect of an area covering 9 Hectares and 73 Ares. The mining license granted on 7th May 2010, has not been amended or substituted. It was impermissible for the Additional Collector to grant mining lease in respect of 9 Hectares and 73 Ares area, without observing the procedure and without securing prior environmental clearance. 12 It is the contention of the Respondent that after the decision of the State Government, the Respondent has obtained consent dated 9 th June 2016, to operate under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981. The consent is granted for the period upto 30 th April 2021. It is contended that the consent obtained from the Maharashtra Pollution Control Board by the Respondent No.5 is valid upto 2021 and as such, the objection raised by the Petitioner do not survive. It is the contention of the Respondent that the decision in respect of mining lease shall have to be ascertained on consideration of the decision of the State Level Expert Appraisal Committee and Maharashtra State Pollution Control Board. It is the contention of Respondent No.5 that by a letter dated 14 th August 2014, issued by the Maharashtra Pollution Control Board to the Regional Office of Pune, it was directed to issue conditional permission to operate and maintain pollution control device round the clock, and by 12/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 13 wp273615.doc obtaining bank guarantee of Rs.1 lakh valid for one year and to issue appropriate directions to provide/upgrade pollution control device within stipulated time. It is contended that those conditions have been complied with. It is the contention of the Respondent that around the area of mining activities, there is no locality inhabiting the villagers. 13 The village Bhilarewadi is situate more than 546.5 yards away and village Ambegaon is situate at 1862 yards from the mining activity. It is contended that for conducting blasting activity, necessary precautions have been taken. The Respondent has also planted various trees in the nearby vicinity. The Respondent regularly sprinkle water on the road, approaching to the said mine, so as to avoid environmental pollution and to minimize the dust particles. It is contended that Respondent is using water spray during the blasting activity and while transporting the minor minerals. It is contended that since the Respondent is observing the conditions provided under the Bombay Minor Minerals Excavation Rules and also under the Maharashtra Minor Minerals Excavation Rules, there is no warrant to interfere in the matter. So far as maintenance of the road is concerned, according to the Respondent, construction of permanent road is already sanctioned by the District Council and the funds are also made available for the same. However, due to the obstruction of the Petitioner, the funds could not be utilized by the District Council.
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ssm 14 wp273615.doc 14 As regards the objection regarding the depletion of the water
level is concerned, it is contended that the Geological Department, Pune has issued a certificate in respect of the water level in the vicinity of the mining area and has certified that the average water level is "12.15 whereas, the present water level is 6.30", and there are almost 10 to 12 boring wells in operation and drawing water for agriculture and drinking purposes. The Respondent has also raised an objection for entertaining the Petition by this Court in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India in view of the availability of an alternate remedy under the provisions of National Green Tribunal Act.
15 The Respondent contends that, though mining lease has been granted in respect of different survey numbers, Respondent No. 5 restricts his activities to the survey numbers permitted under the authorization, except Gat Nos. 504, 505, 509 and 510. According to the Respondent, there is already an undertaking recorded by the High Court while granting liberty to him to continue with the mining activities, while dealing with Writ Petition No. 8537 of 2014 decided on 24th September 2014. The Respondent has tendered an undertaking not to include the aforesaid Gat numbers insofar as the mining activity is concerned. Even if assuming that the Respondent restricts the mining activity, excluding 4 Gat numbers, still the area in respect of which, the mining activity is being conducted is more 14/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 15 wp273615.doc than 5 Hectares and as such, the Respondent cannot escape from the procedural requirement of a public hearing, which is a pre-condition for grant of Environmental Clearance by the Central Government. It would not be permissible for the State Government to grant Environmental Clearance, since the area of the mining activity is exceeds to 5 Hectares. The area of Gat numbers in respect of which, the permission is accorded by the Authorities, is as per the following table-
Sr. Gat No. Area Pages
No.
1. 498 1.75 hectares 408
2. 499 1.07 hectares 409
3. 500 0.82 hectares 410
4. 501 0.85 hectares 411
5. 502 0.82 hectares 033
6. 503 1.00 hectares 034
7. 504 1.11 hectares 035
8. 505 3.04 hectares 036
9. 510 0.64 hectares 038
TOTAL AREA 11.10 hectares
16 Gat No. 509 admeasuring 0.23 hectares shall have to be
excluded from consideration for the reason that the same was not included in the order issued by the Collector on 7 th May 2010. The area of Survey Nos. 504 is 1.11 hectares, No. 505 admeasures 3.04 hectars and No. 510 admeaures 0.64 hectares.
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ssm 16 wp273615.doc 17 It must be noted that even if the area of 4.79 hectares is
excluded out of the total area of 11.10 hectares, the mining activity being conducted by Respondent No. 5 relates to 6.31 hectares, which is more than 5 hectares. The another factor that needs to be considered is whether the contention of the Respondent that he restricts his mining activity for an area less than 5 hectares, can be accepted without there being any amendment or issuance of a fresh authorization by the Collector to the Respondent. The authorization issued on 7th May 2010, records the area of various Gat numbers to be 9.73 hectares. In fact, the said area comprising of all the Gat numbers, recorded in the order, ought to have been computed at 11.10 hectares. Even assuming that the authorization is in respect of 9.73 hectares, it would not be permissible for the Respondent to contend that, since he restricts the activities of mining, excluding certain Gat numbers, he shall not be required to obtain Environmental Clearance from the Central Government which requires application of stringent procedural norms. The whole exercise undertaken by the Respondent and permitted by the State-Authority, is aimed at giving go-bye to the procedural requirement of securing Environmental Clearance from Central Government by application of stringent norms. It was impermissible for the authorities to rely upon the Environmental Clearance, given by the State agency, contrary to the relevant policy norms.
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ssm 17 wp273615.doc 18 The Additional Collector, Pune while directing the cancellation
of permission accorded on 7th May 2010, has taken into consideration the aspect of environmental pollution. It is recorded in the order that, as a result of the atmospheric pollution, the villagers were required to close down the school, which is situated at a proximate distance from the mining site. The report of the Medical Officer, Primary Health Centre, Mutha dated 12th May 2014, discloses that as a result of atmospheric pollution, large number of senior citizens, women and children are suffering from throat and respiratory ailments. The Maharashtra Pollution Control Board also took cognizance of the complaint lodged by the villagers and issued notice on 28th February 2014 to Sunny Stone Group directing the said crusher operator to show cause as to why activity of stone crushing shall not be prohibited. A doubt is also raised as regards the NOC issued by the village Panchayat on 2nd February 2014. The report in respect of the Air Pollution dated 14th February 2014, discloses that the Air quality in the vicinity does not satisfy the requisite benchmark. The RSPM level was noticed to 147 whereas, SPM level was 542 which indicates that the air quality in the vicinity was quite poor. It is also recorded in the order, referring to the report of ground water survey dated 24th April 2014, that there is depletion of underground water level. Thus, the adverse environmental factor, which is directly linked to mining activity, permitted in favour of Respondent No. 5, has not at all been dealt with by the State Government 17/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 18 wp273615.doc while allowing the Revision Application tendered by Respondent No.5. It has been recorded in the order that it would be open for the Maharashtra Pollution Control Board and State Expert Appraisal Committee to consider the correctness of the complaint made by the Villagers. A reference is made to the minutes of the meeting of the State Expert Appraisal Committee dated 28th and 29th April 2014, in respect of repairs of the metal road. The Revisional Authority has further recorded in the order that an appropriate decision as regards the grant of environmental consent, shall have to be taken by the State Level Expert Appraisal Committee. The Revisional Authority has not referred the reports of the Medical Officer, as well as, by the Maharashtra Pollution Control Board, concerning the air quality. The detailed reasonings of ill-effect on the environment, recorded in the order passed by the Additional Collector, have been brushed aside, without recording any convincing reasons. The order passed by the Revisional Authority is quite cryptic and passed without application of mind to record of the case. The order impugned, passed by the Revisional Authority on 24th December 2014, therefore, deserves to be quashed and set aside. 19 Much has been said about the maintainability of the Petition in exercise of Article 226 of the Constitution of India. It is contended by the Respondent that in view of the provisions of National Green Tribunal Act, 2010, more specifically Section 14 of the Act, the Tribunal shall have 18/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 19 wp273615.doc jurisdiction over all Civil matters, where the substantial question relating to the environment, including enforcement of any legal right relating to the environment is involved and such other questions concerning enforcement of provisions of Enactments specified in Schedule I. According to the Respondent, the issues raised in the instant matter relate to Environment (Protection) Act-1986 and the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974. The grievance raised by the Petitioner, in the instant matter, shall have to be dealt with by the Green Tribunal.
20 The learned counsel appearing for Respondent No. 5 contends that the decision rendered by the Supreme Court in the matter of Deepak Kumar & Ors. Vs. State of Haryana & Ors. 1 cannot be made applicable to the instant case. It is stated that the permission in favour of Respondent No. 5 was issued prior to the decision of the Supreme Court and as such, the directives of the Supreme Court in the aforesaid matter would not apply. The Supreme Court in the matter of Deepak Kumar & Ors. (Supra) has observed that the leases of minor minerals, including their renewals for an area less than 5 Hectares be granted by the States and Union Territories. So far as the rest of the mining leases are concerned, a direction was issued by the Supreme Court to all the States, Union Territories, Ministry of 1 (2012) 4 SCC 629 19/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 20 wp273615.doc Environment and Forests and the Ministry of Mining to observe recommendation made by the Ministry of Environment and Forests in its report of March 10 and model guidelines framed by the Ministry of Mining within a period of 6 months from the date of the order and to sub0mit the compliance report. In the instant matter, since the authorization of the lease in respect of an area more than 5 Hectares, the procedure prescribed for award of mining lease beyond 5 Hectares and the necessity of public hearing before issuance of environmental clearance, could not have been avoided. Though the authorization in the instant matter was issued on 7 th May 2010, the same was recalled by the Additional Collector, Pune on 30 th June 2014. The Environmental Clearance in the matter has been issued by the State Level Environment Impact Assessment Authority on 1 st January 2015. The clearance issued by the State Level Environmental Impact Assessment Authority is questionable in view of the fact that the area of mining activity is more than 5 Hectares and without there being public hearing, the environmental clearance ought not to have been issued. It also needs to be emphasized that the State Government did not consider the vital aspect relating to the damage of the environment, as a result of the mining activities in the village and proximate to the residential locality of the village, the impact on the flora and fauna of the region, the fact that the school operating in village was required to be shifted on account of environmental pollution and the fact that there was a depletion in the 20/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 21 wp273615.doc underground water level in the village. These aspects have not been touched by the State Government while dealing with the Appeal. The order passed by the State Government, therefore, deserves to be set aside. 21 So far as the objection raised by the Respondent relating to the maintainability of the Petition is concerned, it has to be noted that the Petition does not relate to only the environmental issues falling within the jurisdictional area of the National Green Tribunal. The Petitioner has objected to the order passed by the State Government and has also questioned the clearance issued by the Environmental Impact Assessment Committee. If the issue brought before the Court covers some of the aspects falling within the jurisdiction of the NGT Act, as well as, the issues which are required to be dealt with in exercise of writ jurisdiction, it cannot be said that the jurisdiction of the High Court under Article 226 is excluded. The Division Bench of this Court while dealing with a PIL No. 49 of 2013 decided on 8 May 2013 (Mr. Parshuram Uparkar Vs. Union of India) has dealt with an identical challenge. It was argued before the Court that in view of the directions given by the Apex Court in the matter of Bhopal Gas Peedith Mahila Udyog Sanghathan & Ors. Vs. Union of India & Ors. 2, it is necessary for the petitioner to approach the alternate forum and the petition shall not be entertained. In paragraph No. 9 of the Judgment, it is observed that "In 2 (2012) 8 SCC 326 21/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 22 wp273615.doc our view, from the aforesaid observations, it is clear that only such cases which fall within the purview of the aforesaid sections and Schedule-I, would have to be filed before the NGT. However, in our humble view, in cases where apart from environmental issues, other reliefs are claimed by the Petitioner which are not covered under the said sections and the matters covered under the NGT Act or Schedule-I and the said issues are inseparable then such cases will have to be considered by this Court if a composite Petition is filed where other reliefs claimed are not covered under the NGT Act."
22 A similar view has been adopted by the Division Bench in the matter of Shri Gangadhar Narsingdas Agrawal Vs. Ministry of Environment and Forests & Ors. 3. The Division Bench has accepted the submission on behalf of the Petitioner before the Court that they cannot be relegated to two remedies, one before the Tribunal and another before the High Court when there is a composite challenge raised. In the instant matter also, the challenge is essentially to the order passed by the State Government, setting aside the order passed by the Additional Collector. For the reasons recorded above, according to us, the Petition before this Court, raising and challenging the order passed by the State Government, is entertainable and the objections raised by the Respondents does not bear any substance.
3 2014(1) ALL MR 847 22/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 23 wp273615.doc 23 In view of the discussions noted as above, the Writ Petition
deserves to be allowed and the same is accordingly allowed. 24 The order passed by the Secretary and Officer on Special Duty (Appeals), Revenue and Forest Department, Mantralaya dated 24 th December 2014 stands quashed and set aside and the order passed by the Additional Collector, Pune dated 30th June 2014 stands restored. 25 In view of the order directing to quash the decision by the Secretary and Officer on Special Duty (Appeals), Revenue and Forest Department, State of Maharashtra, the environmental clearance issued on 1st January 2015 by the State Level Environment Impact Assessment Authority, is rendered inconsequential and inoperative. 26 Rule is made absolute, in above terms. There shall be no order as to costs.
27 The learned counsel appearing for Respondent No. 5 seeks stay of the operation of the Judgment passed by this Court. It is noticed that the permission has been issued in favour of the Respondent long back and on the basis of permission, he continued mining activity. Since we have 23/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 ::: ssm 24 wp273615.doc directed to quash permission/authorization for mining, with a view to extend an opportunity to the Respondent to avail of the remedy before the Supreme Court, we deem it appropriate to grant eight weeks time to the Respondent. The operation of the Judgment and order passed by us today, shall stands suspended for a period of eight weeks.
(A.S. GADKARI, J.) (R.M. BORDE, J.) 24/24 ::: Uploaded on - 08/03/2018 ::: Downloaded on - 21/05/2018 05:39:52 :::