BEFORE THE NATIONAL GREEN TRIBUNAL NEW DELHI (PRINCIPAL BENCH) Review Application No. 10/2012 In Application No. 38/2011

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1 BEFORE THE NATIONAL GREEN TRIBUNAL NEW DELHI (PRINCIPAL BENCH) Review Application No. 10/2012 In Application No. 38/ Mr. Shankar Somani Proprietor of M/s Pradip Industries Village Gormur, P.O. Lakhujan, Bokakhat, Dist. Golaghat, Assam Versus 1. Mr. Rohit Choudhary S/o Shri D.P. Agarwal P.O. Lokhujan, Village- Garmur, Bokakhat , Dist.-Golaghat, Assam Applicant 2. Union of India Through the Secretary Ministry of Environment and Forest Paryavaran Bhawan, CGO Complex Lodhi Road, New Delhi State of Assam Through its Chief Secretary Assam Sachivalaya Complex Dispur, Guwahati, Assam Department of Forest Government of Assam Through the Principal Chief Conservator of Forest (WL) Basistha, Guwahati Assam Respondents 1

2 5. Karbi Anglong Autonomous Council Through its Principal Secretary Shri Bhupendra Nath Sarmah District Karbi Anglong 6. M/s Paramount Industries Sri Gopal Kumar Poddar Village-Siljuri, P.O. Bokakhat 7. M/s B.L. Agarwala Stone Crusher Unit Through its Representative Sri Suresh Kumar Agarwalla Village-Silijuri, P.O. Bokakhat 8. M/s Kaziranga Stone Product Through its Proprietor Sri Mahabir Prasad Agarwalla Village Latabari, P.O. Bokakhat 9. M/s Baruah Stone Crusher Through its proprietor Sri Ajit Jalan Village-Sapjuri, P.O. Bokakhat District Golaghat, Assam M/s Assam Stone Crusher Through its proprietor Sri Shyam Sundar Nimodia Village Dagaon, P.O. Bokakhat 11. M/s Mayur Stone Crusher Through its proprietor Sri Binod Kumar More Village Borbheta, P.O. Bokakhat 2

3 12. M/s Maruti Stone Crusher Through its Proprietor Sri Gaurav Poddar Village-Barbheta, P.O. Bokakhat Assam M/s H.P. Agarwalla Stone Crusher Through its proprietor Sri Hari Prasad Agarwalla Village Borbheta, P.O. Bokakhat District Golaghat, Assam M/s Nimodia Stone Crusher Through its proprietor Sri Sandip Kumar Nimodia Village-Ahomgaon, Borbheta, P.O. Bokakhat District Golaghat, Assam M/s Balaji Blue Metal Industries Through its proprietor Sri Kailash Kumar Agarwalla Village-Balijan, P.O. Bokakhat 16. M/s Borah Stone Crusher Through its Representative Sri Rajib Borah Village Balijan, P.O. Bokakhat 17. M/s Shyam Industrial & Commercial Enterprise (a partnership concern) No. 5, NH - 39, Rong Bong P.O. Kanaighat, District Golaghat Assam M/s Tanay Tea (a partnership concern) 5, Rong Bong, via- Telgaram, P.O. Kanaighat, District Golaghat, Assam

4 19. M/s Jallan Golaghat Tea Co. Pvt. Ltd. Represented by its representative Shri Vikash Jallan P.O. Golaghat, District Golaghat Assam 20. Numaligarh Refinery Local Area Development and Safety Forum H.O. Numaligarh District Golaghat, Assam Counsel for Applicant(s): Mr. Ratan Kumar Singh and Mr. Sushil Kr. Kabra Counsel for Respondent(s) : Mr. Ritwick Dutta for R - 1 Ms. Neelam Rathore for R 2 Performa Respondents Mr. Avijit Roy for R 3 & 4 4

5 JUDGEMENT PRESENT: Justice A.S. Naidu (Acting Chairperson) Dr. G.K. Pandey (Expert Member) Dated 23 rd November, 2012 M/s Pradip Industries (Saw Mill) represented through its proprietor has approached this Tribunal under Section 19 of the National Green Tribunal Act, 2010 inter-alia praying to review/modify a portion of the judgment dated 07 th September, 2012 delivered in Application No. 38 of 2011 (Rohit Chaudhary Vs. Union of India & Ors.). 2. Shri Rohit Choudhary, the Applicant of the original application is a resident of village Bokakhat and being concerned about the ecology of the area and future of Indian rhinoceros, elephants and species of flora and fauna available in Kaziranga National Park, approached this Tribunal in Application No. 30 of 2011 praying for issuance of directions to the Authorities to 5

6 regulate quarrying and mining activities which were illegally existing in and around Kaziranga National Park. According to the Applicant inspite of the Notification dated 05 th July, 1996 issued by the Ministry of Environment and Forest declaring a No Development Zone (NDZ), rampant industry, that too polluting ones have been permitted to be setup even inside the No Development Zone, in flagrant violation of the prohibition, as well as mandatory provision of law. 3. In course of hearing this Tribunal called upon the Ministry of Environment and Forest to conduct an on the spot inspection and submit a report specifying the number of industrial units functioning in the No Development Zone and its vicinity. In consonance with the said direction the Central Pollution Control Board (CPCB) along with Pollution Control Board of Assam conducted survey and filed an Affidavit disclosing that there are more or less 64 Units located within the No Development Zone. After going through the report and hearing Learned Counsel for the parties, relying upon the ratio decided by number of decisions of the Supreme Court the original application was disposed of 6

7 directing the Authorities to take positive steps to ensure that no polluting industry should be permitted to operate within the No Development Zone. We further directed the MoEF and the State Government to prepare a comprehensive action plan and mandatory mechanism for implementation of the conditions stipulated in the 1996 Notification specifying the No Development Zone and for inspection, verification and monitoring of the prohibition imposed as well as the provisions of Rule 5 of the Environment (Protection) Act, 1986 (Para 34 of the judgment). 4. Being aggrieved by a portion of the said direction the Applicant has filed this review application, mainly on the ground that the Saw Mill of the Applicant having been established way back in the year 1982 to 1983, that is, much prior to the issuance of the Notification dated 05 th July, 1996 declaring No Development Zone. Further it is submitted that the State Government of Assam after obtaining due permission from the MoEF has setup a Minor Industrial Estate (MIE) to regulate installation of Industrial Units. The said Notification specifically stipulates that the Industrial Estate may accommodate all wood 7

8 based units including Saw Mills which do not use timber brought in from outside the State of Assam as raw material. Relying upon the said Notification, it is submitted that the Saw Mill having been installed in consonance with the decision of the Assam Government, that too much prior to the issuance of Notification declaring No Development Zone, may not be disturbed and the direction issued not to permit operation of the Saw Mill in para 33 (d) of the judgment be suitably modified. Even otherwise it is submitted that the 1996 Notification has no retrospective application and should not be made applicable to the industrial units, like that of the Applicant, which are in existence prior to the issuance of the Notification. 5. Notices were issued to the contesting Respondents and opportunity was granted to file replies if any. Unfortunately no reply was filed on behalf of the MoEF or any of the contesting Respondents, though, time was granted more than once. 6. A feeble attempt was made by Mr. Ritwick Dutta with regard to the maintainability of this review application mainly on the ground that the Applicant was not a party to the original 8

9 application. But according to us any person who is not a party to the main proceedings, if considers himself aggrieved by the observations made or direction issued in the judgment, can apply for review. The said person however has to substantiate that he is directly and substantially affected by the judgment. In view of the aforesaid position, we have no hesitation to entertain this review as according to us the review application has an arguable case. 7. In the course of hearing Mr. Ratan Kumar Singh, Learned Counsel appearing for Applicant took pains to invite our attention to the Notification dated 04 th May, 1999 as well as several other documents annexed to the Review Application and submitted that the Applicant s unit (Saw Mill) was established much prior to the issuance of the Notification carving out the No Development Zone and it should not be disturbed, as 1996 Notification has not retrospective application/effect. Number of decisions were cited in support of the point canvassed, but then there being no quarrel with regard to the legal proposition in respect of retrospective application of a notification in the absence of any specific 9

10 provision in the notification itself, we refrain from referring to the same. 8. Heard Counsel for the parties at length. It appears that the controversy with regard to installation of Saw Mills in different parts of the Country was before the Hon ble Supreme Court in the case of T.N. Godavarman Thirumulpad Vs. Union of India & Ors. (W.P. (C) No. 171/1996), which was disposed by judgment dated 15 th January, Considering the fact that about 1.20 lakh cubic meter of illicitly felled timber belonging to the State Governments was allowed to be dumped in the forest and depots for considerable period, consequently degrading on account of decay and rotting of wood, the Apex Court observed that there should be ban on felling of tress and the State Governments should formally notify industrial estates for locating the wood based industrial units in consultation with MoEF. The Hon ble Supreme Court further directed that till the industrial estates are formally notified licenses given to wood based industries shall stand suspended. 10

11 9. There is no dispute that the license of the Applicant s unit i.e. M/s Pradip Industries (Saw Mill) was suspended in consonance with the directions issued by the Hon ble Supreme Court (supra). A perusal of the documents produced by the Applicant further reveals that the license to operate the saw mill, as mandatorily required under the Assam Wood Based Industry (Establishment and Regulations) Rules, 2000, has not been granted till date though registration and license under the Factories Act, 1948 was renewed from time to time. In the absence of the renewal of license in consonance with the aforesaid Rules more particularly Rule 4, of Assam Wood Based Industry (Establishment and Regulations) Rules, 2000, the Applicant s unit cannot be permitted to operate, more so in the No Development Zone. In view of the discussions made above, we are not inclined to review the judgment at the instance of the Applicant whose license has not been renewed under the statutory Rules. The Applicant cannot be permitted to function within the No Development Zone of Kaziranga National Park being bereft of the License. Liberty is however granted to the Applicant to approach the concerned Authorities for granting 11

12 permission. If such an attempt is made it should be open to the Authorities to consider the Application strictly in compliance with the Rules. On verification if the Authorities are satisfied that the Applicant s unit is a non-polluting one they may consider and pass necessary orders stipulating such conditions as would be deemed just and proper but in no case any expansion be permitted. 10. With the aforesaid observations the Review Application is disposed of. Dr. G.K Pandey Expert Member Justice A.S. Naidu Acting Chairperson 12