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2018 Supreme(Online)(NGT) 8
NATIONAL GREEN TRIBUNAL NEW DELHI (PRINCIPAL BENCH)
Raghuvendra S. Rathore, J, Dr. Satyawan Singh Garbyal, Expert Member
Shri Hira Singh Markam – Appellant
Versus
Union of India – Respondent
APPEAL NO. 83 OF 2014
For the Appellants/Petitioners: Mr. Ritwick Dutta, Sr. Adv., Mr. Rahul Choudhary, Mr. Utkarsh Jain, Ms. Meera Gopal, Ms. Geetanjali Sreedhar, Ms. Sukriti Kashyap
For the Respondents: Mr. Vikash Malhotra, Mr. Apoorv Kurup, Ms. Needhi Mittal, Avanish Rathi, Mr. A.P. Mayee, Ms. Shipra Shukla, Mr. Krishnan Venugopal, Mr. Yashraj Singh Deora, Ms. Asmita Singh, Mr. Shyam Agrawal, Mr. Ardhendumauli Kr. Prasad, Ms. Ragya V. Singh, Mr. Shashank Saxena, Ms. Sanjana Saddy
The Tribunal ruled that consent from Gram Sabha is not required for linear projects unless the rights of Primitive Tribal Groups are affected.
Headnote:(A) Forest (Conservation) Act, 1980 - Section 2 - Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 - Appeal against forest clearance - Applicant challenges the approval for non-forest purpose; claims procedures under FRA were not followed. (Paras 1-10)
(B) Judicial Review - The court emphasized the responsibilities of state authorities to fulfil procedural requirements mandated by the Ministry of Environment prior to forest land diversion. The Tribunal found no merit in the appeal as statutory requirements were met.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. context of the appeal and challenge details. (Para 1 , 2) |
| 2. requirements for forest rights act compliance. (Para 3 , 4) |
| 3. exemption from gram sabha consent for linear projects. (Para 5 , 6) |
| 4. clarification on statutory requirements. (Para 7) |
| 5. final ruling on the appeal's merit. (Para 9 , 10) |
JUDGEMENT
PRESENT: Hon’bleMr. Justice Raghuvendra S. Rathore (Judicial Member) Hon’bleDr.Satyawan Singh Garbyal (Expert Member) Reserved on: 4 th September, 2018 Pronounced on: 14 th September, 2018
1. Whether the judgment is allowed to be published on the net?
2. Whether the judgment is allowed to be published in the NGT Reporter?
Dr. S.S. GARBYAL, (EXPERT MEMBER)
In this Appeal filed on 10.11.2014, the applicant has challenged the order of Forest Clearance granted by the State of Chattisgarh on 23.05.2014 for the diversion of 83.12 ha. of additional forest land in East Bhanupratappur forest division for the non-forest purpose under Section 2 of the Forest (Conservation) Act. 1980 for construction of the Phase I of the Dalli-Rajhara –Rawghat Railway Line. The Appellant had also challenged the Stage I forest clearance dated 16.04.2010 and the stage II Forest Clearance dated 12.05.2014 granted by the MoEF&CC. However during submissions made on the last date of hearing they have confined their appeal to forest clearance granted by the State of Chattisgarh dated 23.05.2014 only. They have accordingly requested the Tribunal to pass orders quashing the forest clearance dated 23.05.2014 granted by the State of Chattisgarh.
2. The applicants have submitted that the Forest Dept. of Chattisgarh have not fulfilled the requirements of official memorandums of the Ministry of Environment and Forest dated 30.07.2009 and 03.08.2009 whereby the settlement of rights under the Scheduled Tribes and other Forest Dwellers (Recognition of Forest Rights) Act, 2006 have to be settled before the proposal for the diversion of the forest under Section 2 of the Forest (Conservation) Act, 1980 can be forwarded by the State Government to the Central Government. It has been stated that the settlement of rights has not taken place for people from the project area. It has also been stated that the proposal of the Forest Department, State of Chattisgarh did not enclose any evidence that portrayed that the process has been initiated and/or completed even though such evidence in necessary as per the Official Memorandums of the Ministry of Environment and Forests dated 30.07.2009 and 03.08.2009.
3. The letter dated 30.07.2009 addressed to the Chief Secretaries/Administrator of all the States and UT Governments except J&K by the Ministry of Environment and Forest (FC Division), displayed at Annexure-A-12 reads as Under:-
I am directed to invite the attention of the State Government to the operationalization of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 which has become effective from 01.01.2008. It is observed that the proposals under the Forest (Conservation) Act, 1980 are being received from different States/UT Governments with the submission that the settlement of rights under Forest Rights Act, 2006 (FRA) will be completed later on.
Accordingly, to formulate unconditional proposals under the Forest (Conservation) Act, 1980 , the State/UT Governments are, wherever the process of settlement of Rights under the FRA has been completed or currently under process, required to enclose evidences for initiating/completion of the above process. These enclosures of evidence shall be in the form of following: a. A letter from the State Government certifying that the complete process for identification and settlement of rights under the FRA has been carried out for the entire forest area proposed for diversion, with a record of all consultations and meetings held;
b. A letter from each of the concerned Gram Sabhas indicating that al formalities/processes under
