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2014 Supreme(Ori) 134
HIGH COURT OF ORISSA, CUTTACK
INDRAJIT MAHANTY & BISWANATH MAHAPATRA, JJ.
Charidesa Krusak Surakhya Sangha and Another – Petitioners
Versus
State of Orissa and Others – Opposite Parties
W.P. (C) Nos. 9384 of 2012, 30369 of 2011, 3926 of 2010 & W.A. No. 321 of 2011
Decided On : 16.05.2014
For Petitioners:M/s. Jayant Das, Senior Advocate, S.N. Sarkar & B.K. Jena.
For Opposite Parties:Mr. Ashok Mohanty, Advocate General, Mr. S.D. Das, Assistant Solicitor General, M/s. Pinaki Mishra, Senior Advocate, Milan Kanungo, Senior Advocate & Mr. S. Das.
Headnote:
The Court held that the project proponent can carry out construction activities on non-forest land while awaiting clearance for forest land, provided that the forest land is not impacted in any manner. The Court also held that the location of the thermal power plant does not require wildlife clearance before any construction on the site can be permitted.
Fact of the Case:
The petitioners, Charidesa Krusak Surakhya Sangha and several land losers, filed writ applications challenging the validity of the acquisition of land made by the Industrial Development Corporation of Odisha (IDCO) for the purpose of setting up a thermal power plant by M/s. KVK Nilachal Pvt. Ltd. (KVK). The petitioners alleged that the acquisition of land was made without obtaining the necessary permissions and clearances, including forest clearance, wildlife clearance, and clearance for construction of the project.
Finding of the Court:
The Court found that the project proponent had obtained environment clearance from the Ministry of Environment and Forest (MOEF) on 18.02.2009, and that at that time, there was no ecologically sensitive area reported within 10 Kms area of the project. The Court also found that the Kapilash Wildlife Sanctuary was designated only on 02.04.2011, and that the project location is more than 3.5 kms from the boundary of the sanctuary. The Court further found that the State Government had forwarded its recommendation of the buffer zone for consideration by the Central Government, and that the location of the project proponent KVK is beyond the buffer zone recommended by the State Government.
Issues: 1. Whether a project proponent can carry out construction activities on non-forest land while awaiting clearance for forest land? 2. Whether the location of the thermal power plant requires wildlife clearance before any construction on the site can be permitted?
Ratio Decidendi: 1. The Court held that a project proponent can carry out construction activities on non-forest land while awaiting clearance for forest land, provided that the forest land is not impacted in any manner. The Court relied on the letter dated 21.03.2011 issued by the MOEF, which states that "if a project involves forest as well as non-forest land, work should not be started on non-forest land till approval of the Central Government for release of forest land under the Act has been given." However, the Court also noted that the letter is only a guideline and does not have any statutory force. 2. The Court held that the location of the thermal power plant does not require wildlife clearance before any construction on the site can be permitted. The Court relied on the judgment of the Supreme Court in Goa Foundation vs. Union of India, which held that "until the order dated 04.08.2006 of this Court is modified by this Court in I.A. No. 1000 in T.N. Godavarman Thirumulpad vs. Union of India & Others, there can be no mining activities within one kilometer from the boundaries of National Parks and Sanctuaries in Goa." The Court also noted that the project location is more than 1 km beyond the limits suggested by the State Government in its recommendation made to the Central Government.
Final Decision: The Court allowed the writ petitions filed by the petitioners and quashed the notices issued by the Tahasildar, Athagarh and the DFO, Athagarh. The Court also directed the project proponent to obtain the necessary forest clearance and wildlife clearance before commencing its operations.
JUDGMENT
INDRAJIT MAHANTY, J.
1. The present batch of writ applications has come to be filed by the petitioner Charidesa Krusak Surakhya Sangha and several land losers seeking to challenge the validity of the acquisition of land made by the Industrial Development Corporation of Odisha (hereinafter referred to as the IDCO) for the purpose of setting up a thermal power plant by M/s. KVK Nilachal Pvt. Ltd. (hereinafter referred to as the KVK).
2. At the commencement of hearing, we requested the learned counsel for the respective parties in this batch of cases to make out categories on the issues raised and to bunch the various cases in each such category. Accordingly, on the consent of the learned counsel representing the various parties, four categories were made. This judgment relates to the cases under Category-IV as noted herein-below:–
Category - IV
Challenge to lack of permissions and clearances for construction of the project, lack of forest clearance, lack of wildlife clearance
14. W.P. (C) No. 9384 of 2012
15. W.A. No. 321 of 2011
16. W.P. (C) No. 30369 of 2011
17. W.P. (C) No. 3926 of 2010
3. For the convenience of adjudication, we have proceeded to deal with the aforesaid cases category-wise and, accordingly, the present judgment is confined to the issues raised in Category-IV i.e. challenge to lack of permissions and clearances for construction of the project, lack of forest clearance, lack of wildlife clearance.
4. Since in the connected judgment delivered today in W.P. (C) Nos. 6715 of 2011 along with batch of writ applications, the factual background of challenge has been noted in detail therein, for the sake of brevity, the same is not being repeated herein.
5. We will now record the submissions of the parties and their respective objections.
Category IV – Challenge to lack of permissions and clearances for construction of the project, lack of forest clearance, lack of wildlife clearance.
6. Mr. Jayant Das, learned Senior Advocate on behalf of the petitioners submitted that, part of the land over which the thermal power plant of KVK is to be come up is, classified as forest land and such land is covered under Section 2 of the Forest Conservation Act, 1980 as determined by the Hon’ble Supreme Court in the case of T.N. Godavarman Thirumulkpad vs. Union of India, (1997) 2 SCC 267 and such forest land cannot be put to in a non-forest activity, without a clearance in terms of Section 2 of the Forest Conservation Act, 1980 and any non forest use of the land, would require prior approval of the Central Government in terms of Section 2 of the Forest Conservation Act 1980 and since KVK do not possess any such prior approval, they should be injuncted from carrying out any non-forest activity thereon. In this respect, it is further alleged that KVK have already commenced construction activity without the necessary approval under the Forest Conservation Act, 1980 and once there is a mixture of forest land and non-forest land, any activity on non-forest land also requires a prior clearance from the Government of India under Section 2 of the Forest Conservation Act. For this purpose, reliance is also placed on a guideline issued by the Ministry of Environment and Forest (in short MOEF) dated 21 March, 2011 relevant portion of which is quoted herein-below.
“4.4. Project involving Forest as well as Non-forest Lands.
Some project involve use of forest land as well as non-forest land. State Governments/ project authorities sometimes start work on non-forest lands in anticipation of the approval of the Central Government for release of the forest lands required for the projects. Though the provisions of the Act may not have technically been violated by starting of work on non-forest lands, expenditure incurred on works of non-forest lands may prove to be infructuous if diversion of forest land involved is not approved. It has, therefore, been decided that if a project involves forest as well as non-forest land, work should not be started
