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GAHC010077512020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : PIL (Suo Moto) No.3 of 2020
1:X X X X
GUWAHATI, ASSAM
VERSUS
1:IN RE - THE UNION OF INDIA AND 7 ORS
REPRESENTED BY SECRETARY, MINISTRY OF MINES, SHASTRI BHAWAN,
DR. RAJENDRA PRASAD ROAD, ROOM NO. 320, A-WING, NEW DELHI -
110001
2:THE STATE OF ASSAM REPRESENTED BY THE CHIEF SECRETARY
GOVERNMENT OF ASSAM DISPUR GUWAHATI - 781006
3:THE SECRETARY TO THE GOVERNMENT OF ASSAM
HOME AND POLITICAL DEPARTMENT DISPUR GUWAHATI - 781006
4:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM FOREST AND ENVIRONMENT DEPARTMENT DISPUR GUWAHATI -
781006
5:THE PRINCIPAL CHIEF CONSERVATOR AND HEAD OF FOREST FORCE
ARANYA BHAWAN PANJABARI GUWAHATI - 781037
6:THE DIRECTOR THE DIRECTORATE OF GEOLOGICAL AND MINING
DEPARTMENT KAHILIPARA GUWAHATI - 781019
7:COAL INDIA LIMITED REPRESENTED BY THE CHAIRMAN-CUM-
MANAGING DIRECTOR COAL BHAWAN PREMISE NO.04 MAR PLOT NO.
AF-III ACTION AREA-1A NEWTOWN RAJARHAT KOLKATA - 700156
8:THE DEPUTY COMMISSIONER
DISTRICT - TINSUKIA ASSAM PIN - 78612
Advocate for the Petitioner : MR. T J MAHANTA, SR. ADV
Advocate for the Respondent : MR. M Z AHMED (R7)
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Linked Case : PIL No.36 of 2020
1:BASANTA DEKA
S/O. LT. LOKNATH DEKA
R/O. KARUNAMOYEE HOUSING APARTMENT
M.C. ROAD UZAN BAZAR GUWAHATI-781003.
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
REP. BY SECRETARY MINISTRY OF ENVIRONMENT FOREST AND CLIMATE
CHANGE (MoEF AND CC) GOVT. OF INDIA NEW DELHI.
2:THE NATIONAL BOARD OF WILD LIFE (NBWL) REP. BY THE
CHAIRPERSON MINISTRY OF ENVIRONMENT FOREST AND CLIMATE
CHANGE (MoEF AND CC) GOVT. OF INDIA NEW DELHI.
3:THE STATE OF ASSAM REP. BY ITS CHIEF SECRETARY
ASSAM SACHIVALAYA DISPUR GUWAHATI-06.
4:THE ASSAM STATE BOARD FOR WILD LIFE (SBWL) REP. BY THE
CHAIRPERSON DEPTT. OF ENVIRONMENT GOVT. OF ASSAM
ASSAM SACHIVALAYA DISPUR GUWAHATI-06.
5:THE GENERAL MANAGER
M/S COAL INDIA LTD. COAL BHAWAN
PREMISE NO.004 MAR PLOT NO.AF-III ACTION AREA 1A
NEWTON RAJARHAT KOLKATA-7000156.
6:THE GENERAL MANAGER
M/S NORTH EASTERN COAL FIELDS LTD.
COAL INDIA LTD. BLACK DIAMOND TOWERS G.S. ROAD GUWAHATI.
Advocate for the Petitioner : MR. T GOGOI
Advocate for the Respondent : ASSTT.S.G.I.
Linked Case : PIL No.29 of 2020
1:MRINMOY KHATANIAR AND ANR.
S/O- LATE BIJOY CH KHATANIAR
R/O- NARIKALBARI PATH MT ROAD GUWAHATI- 781024
2: AMAR JYOTI DEKA
S/O- LATE BHABENDRA NATH DEKA
R/O- H NO. 20 NAMONI PATH KARBI PATH MOTHER TERESA PATH P.O-
BAMUNIMAIDAM P.S- GEETANAGAR GHY- 21 ASSAM
VERSUS
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1:UNION OF INDIA AND 9 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA MIN OF ENVIRONMENT
FOREST AND CLIMATE CHANGE INDIRA PARYAVARAN BHAWAN JORBAGH
ROAD NEW DELHI- 110003
2:MINISTRY OF ENVIRONMENT AND FOREST AND CLIMATE CHANGE
NER OFFICE LAW U SIB LUMBATNGEN NEAR MTC WORKSHOP SHILLONG-
7930211
3:THE STATE OF ASSAM REP. BY THE PRINCIPAL SECRETARY TO THE GOVT
OF ASSAM ENVIRONMENT AND FOREST DEPTT DISPUR GUWAHATI- 06
4:THE CHIEF SECRETARY TO THE GOVT OF ASSAM
DISPUR SECRETARIAT COMPLEX GUWAHATI- 06
5:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF
FOREST FORCE H BLOCK 2ND FLOOR JANATA BHAWAN DISPUR
GUWAHATI- 781006 ASSAM
6:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST (WILDLIFE)
H BLOCK 2ND FLOOR JANATA BHAWAN DISPUR GUWAHATI- 781006
ASSAM
7:NATIONAL BOARD FOR WILDLIFE REP. BY THE STANDING COMMITTEE
OF NATIONAL BOARD FOR WILDLIFE MIN OF ENVIRONMENT FOREST AND
CLIMATE CHANGE (WILDLIFE DIVISION) 6TH FLOOR VAYU WING INDIRA
PARYAVARAN BHAWAN JORBAGH ROAD NEW DELHI- 110003
8:STATE BOARD FOR WILDLIFE REP. BY ITS CHAIRMAN DISPUR
SECRETARIAT COMPLEX GUWAHATI- 06
9:COAL INDIA LIMITED COAL BHAWAN PREMISE NO. 04 MAR PLAT NO AF-
III ACTION AREA -1A NEW TOWN RAJARHAT KOLKATA- 700156
10:CHIEF GENERAL MANAGER
NE COAL FIELDS COAL INDIA LIMITED
SUB DIV MARGHERITA DIST- TINSUKIA ASSAM PIN- 786181
Advocate for the Petitioner : MR. D K DAS
Advocate for the Respondent : ASSTT.S.G.I.
Linked Case : PIL No.30 of 2020
1:VIKRAM RAJKHOWA AND ANR.
S/O SRI JYOTI PRASAD RAJKHOWA
R/O NARIKAL BARI P.S GEETANAGAR
GUWAHATI-781024 DIST. KAMRUP(M) ASSAM
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2: SANTANU BARTHAKUR
S/O SRI AWANI BARTHAKUR R/O GANESH MANDIR PATH
NEW GUWAHATI P.S. NOONMATI DIST. KAMRUP(M) ASSAM
VERSUS
1:THE UNION OF INDIA AND 16 ORS.
REP. BY THE SECRETARY MINISTRY OF ENVIRONMENT FOREST AND
CLIMATE CHANGE (MOEF AND CC) GOVT. OF INDIA NEW DELHI
2:THE SECRETARY MINISTRY OF ENVIRONMENT FOREST AND CLIMATE
CHANGE GOVT. OF INDIA NEW DELHI
3:THE CHAIRPERSON STANDING COMMITTEE OF NATIONAL BOARD FOR
WILD LIFE (NBWL) MINISTRY OF ENVIRONMENT FOREST AND CLIMATE
CHANGE GOVT. OF INDIA NEW DELHI
4:THE CHAIRPERSON NATIONAL BIODIVERSITY AUTHORITY (NBA)
MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGE GOVT. OF
INDIA NEW DELHI
5:THE CHAIRPERSON FOREST ADVISORY COMMITTEE (FAC)
MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGE GOVT. OF
INDIA NEW DELHI
6:THE COMMISSIONER AND SECREATRY ENVIRONMENT AND FOREST
DEPTT. GOVT. OF ASSAM SACHIVALAYA DISPUR GUWAHATI-781006 ASSAM
7:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST
ARANYA BHAWAN PANJABARI GUWAHATI
8:THE DIVISIONAL FOREST OFFICER
DIGBOI FOREST DIVISION P.O. DIGBOI DIST. TINSUKIA
9:THE CHAIRPERSON STATE BOARD FOR WILD LIFE (SBWL)
ASSAM DEPTT. OF ENVIRONMENT AND FOREST GOVT. OF ASSAM
ASSAM SACHIVALAYA DISPUR GUWAHATI-781006
10:THE CHAIRPERSON ASSAM STATE BIODIVERSITY BOARD (ASBB)
DEPTT. OF ENVIRONMENT AND FOREST GOVT. OF ASSAM ASSAM
SACHIVALAYA DISPUR GUWAHATI-781006
11:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM MINES AND
MINERALS DEPTT. ASSAM SACHIVALAYA DISPUR GUWAHATI-781006
12:THE DEPUTY COMMISSIONER
TINSUKIA O/O DEPUTY COMMISSIONER BORGURI DIST. TINSUKIA
13:THE DIRECTOR GENERAL OF POLICE
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ASSAM ASSAM POLICE HEAD QUARTERS ULUBARI GUWAHATI-781007
14:THE SUPERINTENDENT OF POLICE TINSUKIA O/O THE
SUPERINTENDENT OF POLICE BORGURI DIST. TINSUKIA
15:THE STATE OF ARUNACHAL PRADESH
REP. BY ITS CHIEF SECREATRY ITANAGAR ARUNACHAL PRADESH
16:THE GENERAL MANAGER
M/S COAL INDIA LTD. COAL BHAWAN PREMISE NO. 004 MAR
PLOT NO. AF-III ACTION AREA-1A NEWTOWN RAJARHAT KOLKATA-700156
17:THE GENERAL MANAGER M/S NORTH EASTERN COALFIELDS
COAL INDIA LTD. BLACK DIAMOND TOWER GS ROAD GUWAHATI
KAMRUP (M) ASSAM
For the Petitioners : Mr. T.J. Mahanta, standing counsel, Gauhati High Court.
Mr. P.P. Dutta, Advocate.
Mr. D.K. Das, Advocate.
Mr. R.S. Choudhury, Advocate.
Mr. H. Betala, Advocate.
Mr. C. Kumar, Advocate.
Mr. A. Baruah, Advocate.
Mr. T.R. Gogoi, Advocate.
Mr. V. Rajkhowa, Advocate.
Mr. S.S. Hazarika, Advocate.
Mr. B. Baruah, Advocate.
For the Respondents : Mr. P.N. Goswami, standing counsel, Forest Department.
Mr. B.D. Goswami, Addl. Advocate General, Arunachal Pradesh.
Mr. A. Chandran, Addl. Sr. Govt. Advocate, Arunachal Pradesh.
Mr. K.K. Parasar, Advocate.
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA
HON'BLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 01-09-2020 (Ajai Lamba, C.J.) The Court proceedings have been conducted through Video-Conference.
2. Gist of the issue raised by this bunch of 4(four) cases is recorded in order dated 04.06.2020 rendered in PIL (Suo Moto) No.3/2020. The order reads as under:-
"The Court proceedings have been conducted through Video-Conference.
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2. The issue raised by virtue of this petition is in regard to approval allegedly given for coal mining project in Saleki Reserve Forest, which is a part of Dehing Patkai Elephant Reserve. It has been pleaded that Dehing Patkai Elephant Reserve of which Saleki is a part, is the largest rainforest in India and stretches for 575 square kilometers across Tinsukia, Dibrugarh and Sivasagar districts of Upper Assam. The virgin forestland is also referred to as the 'Amazon of the East'. Biodiversity of the forestland is rich and unique. Dehing Patkai region is already threatened by high polluting industries such as coal mine, oil refineries, gas drilling which adversely affect the biodiversity of the region. There are varieties of animals and birds living in the area. Large numbers of reptiles that are rare have their abode in the area.
It has been alleged that environmental disaster would be caused if approval is given by the Ministry of Environment, Forest and Climate Change to allow coal mining project in this area without proper scientific study, discussions, and taking into consideration various aspects of protecting the environment.
3. It has been asserted that environmental impact is required to be assessed before any such activity is allowed in this area. However, Environment Impact Assessment Report has not been prepared so as to ensure safeguarding natural habitat and protection of animals, birds and reptile species existing in the region.
4. Issue notice to the respondents.
5. Mr. SC Keyal, learned Asstt. Solicitor General of India accepts notice on behalf of respondent No.1, Mr. PN Goswami, learned counsel accepts notice on behalf of respondent Nos.2, 3, 4, 5 and 8, Mr. R Dhar, learned counsel accepts notice on behalf of respondent No.6 and Mr. MZ Ahmed, learned Senior counsel accepts notice on behalf of respondent No. 7.
6. Considering the nature of concern shown by the petitioner, we hereby direct respondent No.4 (The Commissioner & Secretary to the Government of Assam, Forest and Environment Department), respondent No.1 (The Union of India, Represented by Secretary, Ministry of Mines), respondent No.2 (The State of Assam, Represented by the Chief Secretary, Government of Assam), respondent No.3 (The Secretary to the Government of Assam, Home& Political Department), respondent No.5 (The Principal Chief Conservator and Head of Forest Force, Aranya Bhawan, Panjabari, Guwahati), respondent No.6 (The Director, The Directorate of Geological & Mining Department, Kahilipara, Guwahati), respondent No.7 (Coal India Limited, Represented by the Page No.# 7/10 Chairman-cum-Managing Director) and respondent No.8 (The Deputy Commissioner, District-Tinsukia, Assam) to file their affidavits clarifying each aspect of the matter, particularly whether before taking any steps for allowing mining, environmental impact has been assessed or not.
7. Affidavits-in-opposition be filed positively on or before 14.07.2020 or else exemplary cost would be imposed.
8. List on 20th of July, 2020.
9. Let a copy of this order be provided under the signature of the Court Master."
3. Learned counsel for the State has pointed out that his Excellency the Governor of Assam has ordered an enquiry. The fact that an enquiry has been ordered from the highest level in the State is reflected in the Assam Gazette (Extra Ordinary) published on 20.07.2020 vide Notification dated 18.07.2020, which has been placed on record as Annexure-A with the affidavit of Smt. Madhurima Baruah, i.e. respondent No.4, who is serving as Secretary to Government of Assam, Environment & Forest Department.
We have gone through contents of the Notification. It is apparent that the Notification has been issued on the direction of Hon'ble the Governor. Relevant portion of the Notification reads as under:-
"No.FRS.171/2018/272.- Whereas there have been widespread electronic and print media reports in recent times, alleging illegal coal mining activities in Saleki Proposed Reserved Forest under Digboi Forest Division including in Tikok Open Cast Project (oCP) area by organizations such as Coal India Limited and its subsidiaries and by some unscrupulous individuals and its adverse environmental impact on the flora and fauna of the aforesaid area;
-AND-
Whereas, there are also allegations of violation of the Forest (Conservation) Act, 1980, the Assam Forest Regulation, 1891, the Wildlife (Protection) Act, 1972, in the process of coal mining activities carried out by Coal India Limited or its subsidiaries in Saleki Proposed Reserved Forest and also in Tikok Open Cast Project area,
-AND-
Page No.# 8/10 Whereas, wide powers have been vested in the State Government by the Mines and Minerals (Development & Regulation) Act, 1957 and the Rules framed thereunder, regulating mining lease, period of lease, collection of different royalties, preservation of area for conservation, penalty and recovery for unauthorized mining, restoration and rehabilitation of mined area, prevention of illegal mining, transportation and storage, besides powers conferred under the Assam Forest Regulation, 1891, the Environment (Protection) Act, 1986 & the Air (Prevention and Control of Pollution) Act, 1981 and other related laws;-AND-
Whereas, it has now become expedient and necessary, in public interest and also in the interest of protection of Environment, Forests and Wildlife in and around Saleki Proposed Reserved Forest and Tikok Open Cast Project Area, to enquire into any violation of the aforesaid laws related to Forests, Wildlife, Mining and Environment, during the last 20 years, while carrying out any mining or any other activities by any corporation, organization or individual in the aforesaid forest areas;
As such, in exercise of powers conferred under section 3 of the Commissions of Inquiry Act, 1952, the Governor of Assam is pleased to constitute a 'One-Man Enquiry Commission' headed by Justice (Retd.) B.P. Katakey, retired Judge of the Hon'ble Gauhati High Court to cause an enquiry into the aforesaid allegations with the following Terms of Reference for the Commission:-
1. To enquire as to whether since the year 2003 till date, any illegal activities have been undertaken by any organization or individual in and around Saleki Proposed Reserved Forest (PRF) under Digboi Forest Division, including the Tikok Open Cast Project of Coal India Limited (North Eastern Coalfields).
2. To enquire and identify organization(s) and individual(s) responsible for undertaking such illegal mining activities, if any, in and around the aforesaid forest area.
3. To enquire into the manner of processing of any application, if made, by any organization or individual for grant of mining lease in the aforesaid forest area during the period from 2003 onwards, and also to enquire as to whether grant of any mining lease during the said period was in Page No.# 9/10 compliance and in conformity with the provisions of applicable laws i.e. the Mines and Minerals (Development & Regulation) Act, 1957, the Assam Forest Regulation, 1891, the Forest (Conservation) Act, 1980, the Environment (Protection) Act 1986, the Wildlife (Protection) Act, 1972 and other applicable Laws and Rules.
4. To enquire and assess, the extent of illegal mining activities, if any, in and around the aforesaid forest areas and also the impact of such activities, if any, on the flora and fauna generally found in and around the aforesaid forest area.
5. To enquire into and fix responsibility upon government officials of any department found involved in commission of any illegal mining or any other illegal activity in commission or abetment of the aforesaid forest area.
6. To enquire into and suggest measures for recovery of loss, if any, caused due to unlawful coal mining activity under the jurisdiction of Digboi Forest Division, either in the form of rent, royalty, penalty, land arrears or tax in terms of Section 21(5) of the Mines and Minerals (Development & Regulation) Act, 1957 or under any other law in force during commission of offence of illegal mining or commission of any other illegal activity.
7. To enquire into and suggest measures to be taken for restoration, rehabilitation and reclamation of areas damaged due to illegal coal mining and ancillary activities, if any, and approximate amount of costs to be incurred for such purpose.
8. To enquire into any other prohibited regulated activities inside all forests (RF/PRF) and wildlife sanctuary under Digboi Forest Division and to suggest remedial measures to be taken to check such activities.
The Commission is also hereby vested with the additional powers as mentioned in Section 5(2) to 5(5) of the Commissions of Inquiry Act, 1952. For the purpose of conducting any investigation pertaining to enquiry, the Commission is vested with the powers conferred under Section 5(A) of the Commissions of Inquiry Act, 1952. Sri P.N. Goswami, Advocate & Standing Counsel, Environment & Forest Department shall represent the Government of Assam before the Commission. The Page No.# 10/10 Commission shall submit its report within a period of 6 (Six) months from the date of issuance of this notification."
4. Considering the nature of enquiry ordered at the instance of His Excellency the Governor of Assam, and the fact that a former Judge of Gauhati High Court has been appointed as the Commission, we stay our hands on adjudicating on the matter to await report to be furnished by the Enquiry Commission constituted under the Commissions of Inquiry Act, 1952.
5. List on 20th October, 2020.
6. We give liberty to all the parties to this lis to furnish their stand/evidences in support of their respective claims before the Commission.
JUDGE CHIEF JUSTICE M. Sharma Comparing Assistant