By Naba Bhattacharjee
Justice delayed is justice denied is an old adage known to all. In tune with the same logic punishment delayed is penalty denied or option open for dilution. The Union Minister of Environment & Forest had accepted way back during monsoon/winter session of parliament in 2012 regarding the gross abuse and violation of Forest Act, 1980, by cement companies in Jaintia Hills, besides few other organizations within Meghalaya. State Environment & Forest Minister on 29th July 2013 in a press release also confirmed gross violation, imposition of “hefty” penalty and adding that for 1,142 hectares land (proposed for diversion) a decision shall be taken after inspection. However, a bizarre development happened during the intervening period wherein the term forest was “redefined” by hurriedly passing Meghalaya Forest Regulation (Amendment) Bill, 2012, by amending Meghalaya Forest Regulation (Application and Amendment) Act, 1973 in December 2012 in the last session of the previous assembly.
The sudden urgency to redefine forest without taking public opinion and maintaining optimal transparency was obviously not intended at enhancing conservation, as it now takes hundreds of hectares outside the purview of forest, as highlighted by this writer in this column, “Redefining forest…. “, 26th Dec 2012. Interestingly even the quantum of penalty imposed remained elusive till the Minister declared that cement companies shall procure land for afforestation. It is not clear how the land shall be acquired considering the existing land transfer regulations in place and any “tripartite” agreement shall be in contravention to decision of the present government against alienation of any tribal land to non indigenous individual, entity or company, initiated by the Chief Minister himself. Even if possible, this intervention will only form a part of the total penalty leviable as per law.
Mining in forest areas, clandestinely notifying such areas as “non-forest” became an established phenomenon after report of BN Jha Additional Principal C.C.F. Ministry of Environment & Forest, Government of India, North Eastern Regional Office, Shillong, highlighted the seriousness of the matter. This official needs to be commended for believing in the preliminary findings by few of us and following up with commitment in the face of temptation and threat. His comprehensive report – RONE/E/Forest/Misc/255-57; dated 6th May 2010, after thorough field investigation revealed all and confirmed the apprehension of numerous NGO’s and individuals regarding large scale violation of F.C. Act, 1980 in limestone mining areas of Jaintia Hills District. A quite but effective cover-up operation followed to somehow salvage the situation by regularizing and justifying the violations under the garb of technical jargon and semantics. The two PILs ensured that this serious issue could not be undermined and ignored any longer.
The B.N. Jha report put the State Government in a quandary since NOC etc was granted by the Forest & Environment Department or Autonomous District Councils; particularly the latter having no authority to recommend or declare any area as “non forest”. All land under its jurisdiction shall be deemed as forest till proper categorization is reflected in the Working Plan to be prepared by the Councils and approved by MoEF.
Majority of cement companies asserted that they were operating within areas officially “declared” as non-forest and permission to set up plant was granted by the Single Window System. Any blanket ban would have exposed the State to legal implications. To divert attention the Lafarge Umiam Mining Ltd in East Khasi Hills was brought into focus wherein it had to seek fresh approval after it was established that mining of limestone was undertaken in forest areas.
All activities were stopped from 2007 till Supreme Court finally allowed functioning with prescribed penalties which the company promptly complied with in 2010.
The penalty imposed on the company for violation of FC Act, 1980 is over 100 crores to be deposited in phases, besides around Rs 40 crores contribution through an SPV in sectors like health care, education, irrigation in addition to money for compensatory afforestation, NPU etc. in their area of activity. The question is how different yardsticks and rules are applicable for same or bigger offence?
The Central Empowered Committee(CEC), – (constituted by Hon’ble Supreme Court), which by then was seized of the matter, also endorsed setting up of a High Level Committee in January 2011 and as per CEC’s suggestion, Meghalaya Govt. in March/April 2011 notified the committee comprising of PCCF, Regional CCF (NER) and Principal Secretary Mines, Govt. of Meghalaya as Chairman, to look into the violation. The High Level Committee(HLC) is reported to have vindicated the BN Jha report. The dissolution of the HLC at a juncture when it was ready to submit its findings is attributed by many to be a step taken by the State Govt. On the contrary the truth is that Regional CCF, MoEF(NER) in August 2011 wrote to CEC referring to directions of Hon’ble Supreme Court judgement in IA no 1868 of 6th July 2011, based on which the HLC needs to be dissolved and the appraisal has to be done afresh by State Forest Department and Regional Office. In this case, claim of area being “non forest” was already proven wrong by report of Regional CCF (NER), unequivocally establishing violation. The truth has been finally accepted. A plausible reason for the “delay” in imposing the penalty is attributed to formulation of the appropriate norms for finalizing the quantum to be fixed for each of the defaulting industries.
If that argument is true than the MoEF has only to adhere in principle to its own guidelines issued, based on Supreme Court ruling in fixing of penalty in case of LUMPL which justifiably be adopted as bench mark for all pending cases.