I, Samit Aich, Aged about 44 years, Executive Director of Greenpeace India Society, do hereby state on solemn affirmation as under: 1. I say that I am the Executive Director of Greenpeace India Society. I am authorised to file the present affidavit. I 2
have read the plaint, notice of motion and affidavit in support and in reply thereto I am filing the present affidavit. 2. In this affidavit I speak only for Greenpeace India Society, and refrain from making any comment on behalf of the other defendants. I am not aware that the other defendants have been served in this case. It is for the plaintiff to demonstrate to the court that it has adequately served notice on all defendants. To the best of my knowledge Defendant No.2 does not have an office in Mumbai. PRELIMINARY OBSERVATIONS AND OBJECTIONS
3. At the outset I submit that I am filing the present affidavit with the limited purpose of opposing certain ad-interim and interim reliefs which are sought for by the Plaintiffs and I crave leave to file a 3
detailed affidavit if and when so required. I am not dealing with each and every allegation contained in the Plaint/ affidavit in support but nothing contained in the said pleadings should be treated as admitted by me merely because of absence of specific denial and all that is contained in those pleadings which are contrary or inconsistent with and whatever I have stated hereinafter should be treated as denied. I am filing the present Affidavit only on behalf of Defendant No.3. 4. I submit that the present suit is nothing else but what is known as a SLAPP suit (Strategic Lawsuit Against Public Participation) essentially a suit filed in order to prevent public participation in matters that affect the public interest. The Suit is filed with mala fide motives purely to suppress any criticism of the ill deeds of the Essar Group. It is a classic 4
case of corporate culpability and steamrolling by which they seek to silence all those who make genuine criticism of their environmentally degrading, ecologically damaging actions against the interest of thousands of villagers whose livelihood and culture depends on the forests. 5. At the further outset I submit that a case for defamation essentially is a case for protecting reputation, the presumption being the Plaintiff has a reputation to protect, I submit that the Plaintiff in any event has been discredited in various fora as outlined at paragraph 11, below and their actions have come under scrutiny from various authorities as well as the media and therefore their claim to have been defamed is completely bogus and ought to be disregarded altogether.
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6. I further submit that there is no legal entity called Greenpeace India. We are known as Greenpeace India Society, a registered society under the Societies Registration Act. Therefore the suit is not maintainable against Greenpeace India and on that ground alone the suit ought to be dismissed. BACKGROUND OF GREENPEACE
7. I say that Greenpeace India Society was registered on 22 nd July, 2002 and re- registered on 17 th March 2006 in India. It is an advocacy and campaign group, which cooperates with other national organisations in the Greenpeace family, including Greenpeace International, but is independent of them, and is not in any way owned or directed by them. The majority of Greenpeace India Societys income comes from donations of committed Indian individual supporters. It 6
is a highly reputed organisation. Its campaigns have led to Wipro and HCL to phase out toxic substances in their products and support recycling of electronic waste. Further due to its campaign, the telecom giant Bharti Airtel agreed in 2013 to a first ever sustainability report after two years of intense campaigning. Further Greenpeace campaigns with the Karnataka Government made it accept the demands of local farmers and halt field trials of genetically modified crops in 2009. Our work in India is inter alia focussed on four particular campaigns, namely, stopping climate change, promoting sustainable agriculture, preserving oceans and preventing another nuclear catastrophe. Our vision requires governments, industry as well as each and every person to stop viewing the earth as an inexhaustible resource and start treating it as 7
something precious that needs our protection and careful management. An example of such collaboration is with the Government of Bihar in pursuit of a de- centralized renewable energy solution at the community level, which will have far reaching positive impact at the local community level. We need a country and a planet that is ecologically able to nurture its life in all its diversity. Our exposs and unconventional acts of protest bring public and government attention to urgent environmental threats. The action we do takes the shape of investigating, documenting and exposing environmental abuse, taking action and lobbying with government and decision makers to champion environmental and socially just solutions. 8. It needs to be stressed that we are a totally non-violent group and at no stage we advocate any violent methods. Since 8
2010 the Finance Minister invited Greenpeace to a pre-budget consultation on our Living Soils campaign. We presented the papers of social audit that we conducted in 5 states and suggested mechanism to support saving of soils. We have offices in three cities as well as public engagement offices in various cities. We have 293 employees most of whom are involved in various campaigns. Thus our credentials are impeccable. To maintain its independence, Greenpeace does not accept donations from governments or corporations but relies on contributions from individual supporters and select foundation grants meeting our strict criteria. 9. I further state that when we became aware of the project which is the subject matter of the present Suit our activists contacted the local population in or about and only after personally verifying the 9
facts did we get involved. At present we have two activists who are full time stationed in the area and they also actively associated with Mahan Sangarsh Samiti which is an organisation which is fully made up of the local occupants. As a matter of practice we only make statements concerning an issue only after being personally satisfied with the issue and we always make an effort to communicate with the other side to resolve the problem. All this was done in the present case but since there was no positive response from the other side and as we had verified to our satisfaction the facts, we issued statements critical of the project.
10. I say and submit that the statements which are alleged to be defamatory to the Plaintiffs are statements which are made bonafide, with due care and caution and in 10
public interest. I intend to justify the same fully at the time of the trial and in view of this no interim or ad-interim reliefs ought to be granted to the Plaintiffs. ESSARS LAMENTABLE TRACK RECORD
11. As regards the Plaintiffs they are part of the Essar Group controlled by Ruia family. It is a closely held family group. Essar group itself has stakes in various industries, including power as well as mining. History of their action over the years has shown why local communities distrust them, and why they have a poor reputation in terms of ethics and environmental and social impacts. I am giving below a few examples concerning the conduct of Essar Group which shows why they are not trusted by the communities.
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a) The present coal allocation with which the suit is concerned is part of the coal mine allocation scam which is under the scrutiny of the Supreme Court. In fact the CBI has questioned Essars Executive Director Vikas Saraf about the projects of Navbharat Power Private Limited (NPPL) after allocation of a coal block. The NPPL has inflated its net worth to Rs.2000 crore to acquire the coal block in violation of the eligibility norms. Under investigation is the issue whether NPPL was a front company set up to acquire the coal block for Essar. Copy of a report which appeared in the Times of India concerning this is annexed hereto and marked as Exhibit-A. It needs to be mentioned here that no defamation case has been filed in respect of this report. 12
b) Essar is also one of the companies which is named in the 2G spectrum scam. In fact some of the functionaries such as Ravi Ruia (Vice Chairman, Essar Group), Anshuman Ruia (Director, Essar Group), Vikas Saraf (Director Strategy and Planning, Essar Group) as also the Essar group itself are named in the charge sheet which is filed and in the proceedings which are pending before the Special CBI court. Essar is said to have got this spectrum allocation through a front company called Loop Telecom, the promoters have been named as accused in the spectrum allocation case. The various accused from the Essar group have tried to disassociate themselves from this case. However, the Supreme Court has rejected this plea by a reported judgement in 2013 8 13
SCC Page 1. A copy of this judgement is annexed hereto and marked as Exhibit-B.
c) In 2011 the General Manager of Essar Steel in Kirandul Chhattisgarh, Dantewada was arrested on the charge of cash payment to Naxalites. The First Information Report in respect of this case registered by the Kuakonda police Station of Dantewada Dist of Chhattisgarh, FIR No 26/2011 dated 09-09-2011 is annexed hereto along with English Translation and marked as Exhibit- C.
d) Essar Steels was using the Indian Railways as freight carriers for its steel products. The Comptroller and Auditor General of India and Central Bureau of Investigation noted clear 14
lapses on tariffs related to iron ore consignment on Indian railways by Essar. Fearing the repercussions Essar Steel Limited admitted lapses in tariffs and account and it appears it has that it has paid Rs.89 crores to the railways. A copy of the relevant page from the Indian Railways web site reflecting the above is annexed hereto and marked as Exhibit-D. It needs to be mentioned here that no defamation case has been filed in respect of this report.
e) In Chhattisgarh, Essar tried to set up a pipeline by destroying forest. In fact the Chhattisgarh Government (DFO of Sukna) fined Essar Rs. 95 lakhs and only upon paying the fine were the criminal cases dropped and Essar allowed to continue work. This was reported by the Central 15
Empowered Committee appointed by the Supreme Court. Relevant extract of the Minutes are annexed at Exhibit-E. The Supreme Court in this case imposed a further fine of Rs.15 lakhs. Copy of the order of the Supreme Court dated 28.11.2008 in WP (C) 202/1995, is annexed hereto and marked as Exhibit-E1.
f) It was further reported in the Hindu on August 12 th , 2013 (http://www.thehindu.com/todays- paper/tp-national/tp-newdelhi/court- admits-sevenyearold-pil-plea-issues- notice-to-tata-essar- steel/article5014261.ece) that the land acquired for the plant by Essar Steel in Chhattisgarh in a scheduled area was allotted in complete violation of the PESA (Panchayat Extension to Scheduled Areas) Act 16
without consulting the respective gram Sabha and also proper compensation for land acquisition was not paid. It was further noted that the amount of water already committed to Essar and another Company was 60 millions gallons per day, which will adversely affect the tribal population in the downstream of Indravati river. This has been brought out in a public interest litigation which is presently pending before the Chhattisgarh High Court. I crave leave to refer to and rely upon the relevant documents in this regard when produced.
g) The very power plant for which coal is supposed to be mined by Essar and which is the subject matter of the present suit, has been ordered to be shut down for various 17
environmental violations and this is reflected in a report which appeared in the Hindu on 28 th January 2014 which is annexed hereto and marked as Exhibit-F. h) Essar group, even in the USA, has been subjected to a law suit by the Federal Environmental Project Agency accusing them of violating the Clear Water Act and Mountain Removal mines in 2005 and 2007. A copy of the report concerning this is annexed hereto and marked as Exhibit-G. To the best of my information no defamation case has been filed by Essar concerning this Report. i) In Gujarat, Essar was seeking to set up an oil pipeline through a marine national park and marine sanctuary destroying the marine life and a petition concerning this is pending in 18
the Gujarat High Court. A copy of the report from Down to Earth concerning this is annexed hereto and marked as Exhibit-H. 12. The above are only a few examples of Essar being accused of scams and acting in violation of environmental protection and ethical standards in many projects which it takes up. It is in this context that the resistance of the people to the Mahan coal mining project needs to be viewed.
BACKGROUND TO THE PRESENT PROJECT 13. The present dispute pertains to a project which is a proposed coal mining project in Singarauli district of Madhya Pradesh. The allocation of coal block is in favour of Mahan Coal Limited (referred to as MCL henceforth) which is a joint venture of Hindalco and Essar Power 19
Limited with Essar Power Limited holding 50% shareholding but deriving benefit of 60% of the coal that will be mined by MCL. The Mahan Coal block is of 967.65 hectares forest land, as per the Stage 1 Forest Clearance letter) and 17.65 hectares of revenue land is also part of the mining project. In order to carry out the mining activity the tree cover will have to be removed. The total number of trees in this area which will need to be cut is more than 5 lakhs if the mine is cleared. It is contended that there will be reforestation about 400 km. away in Sagar district of Madhya Pradesh. However, the experience of afforestation across the country is that most of the time effective afforestation does not take place.
14. In any event the impact of this coal project is going to be on 54 villages (within the 10km radius of the proposed 20
coal mine according to the EIA report of MCL) which will be affected. These villages are dependent on Mahan forest for seasonal non-traditional forest produce including Mahua, Tendu, Char, Chiraunji, Harra and many other products. This forest is a significant source of livelihood for villagers. These villages also have cremation grounds, local traditions and many other cultural associations with the Mahan forest.
15. It needs to be borne in mind the Mahan forest area is not just any forest but one so valuable that it was designated by the Ministry of Environment and Forests in 2010-11 as a "no go" zone which means that it is so dense and valuable that it should not be touched for mining activities. (Subsequently at the cost of environment and forests this 'no go' policy has been withdrawn but that 21
does not take away the significance of the fact that the area is a dense forest area and a wild life corridor). Besides it is part of a wildlife corridor. Therefore both from the point of environment and wildlife protection it is a crucial area. In addition, the rights of tribal communities to the forests that they depend on have been recognised as paramount under the Forest Rights Act which has been enacted in 2006. Thus, no action can be taken in respect of such forest areas contrary to the interest and without following due processes laid down for forest land diversion, which includes consent of forest dwelling communities. It is in this context that the conduct of the Plaintiff and the resistance of it by the tribals and other forest dweller communities need to seen.
16. In April, 2006 the Union Coal Ministry allocated Mahan Coal Block to Mahan Coal 22
Limited which is a joint venture between Hindalco and Essar. This apparently was one of the tainted allocations which is presently being investigated by the Supreme Court in the coal scam case. In November 2007 Mahan Coal Limited sought environmental clearance to start the project. 17. It is also important to mention that while the M/s Essar Power Ltd sought for present coal block allocation, Government of Madhya Pradesh did not support the proposal for allocation of the block to anyone except the Madhya Pradesh Mineral Development Corporation, however they changed the stand soon thereafter. The copies of the relevant document will be produced and defendant seeks liberty to rely on such documents at a later stage. 18. On 23 rd December 2008 Union Environmental Ministry granted 23
environmental clearance for the project. A copy of the environmental clearance is annexed hereto and marked as Exhibit-I
REFUSAL OF FOREST CLEARANCE PERMISSION AND OPPOSITION TO THE PROJECT BY ENVIRONMENTAL MINISTER
19. It needs to be stressed that various permissions are needed before work can be started on a project such as this. Apart from the environmental clearance which the company received on 23 rd December 2008, there was phase-wise clearance needed under the Forest Conservation Act 1980 which had to be obtained through FAC. On 20 th July 2009 again the FAC refused to grant approval and sought more information from the State Government. On 23 rd July 2008 the Forest Advisory Committee (FAC) of the Ministry 24
of Environment and Forest considered the request for permission but did not grant the same and sought maps of the mining and status of the environmental clearance. On 10 th October 2008, the FAC again considered the request of the first phase clearance and did not grant approval seeking clarification on afforestation. Copies of the aforesaid letters along with typed copy are annexed hereto and marked as Exhibit-J1.
20. On 11.12.2009 again the proposal was put before the FAC and even on this occasion no permission was granted and the FAC recommended that a Sub Committee should visit the area. Copies of the aforesaid documents are downloaded from ministry of Environment website and along with the typed copy annexed hereto and marked as Exhibit- J-2. 25
21. The coal ministry was very keen to grant as many as permissions and licences for fresh coal mines as possible. In fact this keenness is presently under the active scrutiny of the Supreme Court. However the Environmental Ministry was not clearing the coal mines as expeditiously as the Coal Ministry wanted it to. The coal ministry therefore requested the environment ministry to prepare maps in respect of 9 coal fields in Central India which maps would clarify as to in which area coal mining could be permitted and in which area it could not be permitted. This exercise was carried out in January / February 2010 and Mahan coal block was declared as a No go area after a joint exercise carried out by the Ministry of Environment and Forest and the Central Mine Planning and Development Institute of the Ministry of Coal. We have obtained the document available on the ministry 26
website which shows the Mahan coal block area as a no go area for coal mining. Copy of the relevant document along with Typed copy is annexed hereto and marked as Exhibit-J6.
22. Since the project involves cutting of 5 lakh trees in a dense forest area it was further required that sanction of the forest division of the MoEF including the Forest Advisory Committee was required. On 4 occasions i.e. on 23.8.2008, 10.10.2008, 20.7.2009 and 11.12.2009 the Forest Advisory Committee considered the proposal of Essar. However, given the complexity of the issues no final decision was taken. In January / February 2010 the Mahan Coal block was notified as a no go zone In view of this ordinarily no permission ought to have been given or can be given to Essar for any mining of coal in this area. No go zone is based on 27
extreme density of forest and vibrant wild life presence.
ESSAR GROUPS USE OF POLITICAL CONNECTIONS TO PUSH THE PROJECT
23. Mr. Shashi Ruia, the Chairman of Essar wrote to the Prime Minister on 5 th
March 2010 asking to expedite the forest clearance for the Mahan coal block. The Prime Minister in turn addressed a note to the then Minister of Environment and Forest Mr. Jairam Ramesh on 12 th March 2010. On 17 th March 2010 Mr. Jairam Ramesh replied to the Prime Ministers letter. In this letter Mr. Jairam Ramesh pointed out that Mr. Shashi Ruia was trying to misguide the Prime Minister. It was mentioned in this letter that the area has dense vegetation and very good bio- diversity and involved diversion of 1182.35 hectares of excellent forest land. Mr. Jairam Ramesh also mentioned Mr. 28
Shashi Ruia says that the coal mining should be cleared because 65% of the power plant is ready. I cannot agree to this logic. I have repeatedly raised my objection to such fait accompli argument in cabinet meetings if you kindly recall.
24. On 12 th May 2011 Shri Shashi Ruia met Shri Jairam Ramesh followed by Shri Kumaramangalam Birla (from Hindalco). On 12 th May 2010 Mr. Ramesh communicated the difficulty of the MOEF in giving forest land to Mahan Coal Limited and a communication to this effect was sent to the Principal Secretary of the Prime Minister on 13 th May 2010. 25. On 24 th May 2010 Mr. Jairam Ramesh proposed a compromise formula by which the MOEF would consider coal block allocation even if it is a no go zone if it is meant for a power plant which is 60 to 70% complete. However, he said that he 29
would allot this permission most reluctantly only if the Prime Minister directs. He still stated that he would plead for an alternate coal linkage. An inter-ministerial meeting was thereafter called on cases of power projects which were well on their way to completion but which would get affected by the no go concept. In this meeting the Mahan Coal block allocation was discussed and it was said that as far as the Mahan coal block is concerned it could be considered for forest clearance. This meeting took a decision that MOEF has been directed to take appropriate action for forest clearance for mining of coal inter alia in respect of Mahan coal block. It was further mentioned that Mahan falls in wildlife corridor in Singrauli coal fields. Thereafter Mr. Shashi Ruia wrote to the Prime Minister again on 16 th August 2010 requesting for expediting the forest 30
clearance at the earliest. Similar letter was also addressed to Mr. Jairam Ramesh. 26. On 15.1.2011 Shri Shashi Ruia and Kumaramangalam Birla wrote to the Finance Minister asking for a quick decision on the Mahan block. Finally on 30 th June 2011 Mahan coal limited submitted an alternate forest clearance plan reducing marginally the area of forest which would be required to be cleared. On 8 th July 2011 Jairam Ramesh, Minister for Environment and Forest wrote a detailed note which ultimately would go to the Prime Minister setting out the history as narrated above and pointing out three factors weighing in favour of the clearing of the forest and on the other hand 4 factors clearing against the proposal. He mentioned that the coal block is in a bio- diversity region and would destroy the only forest and interfere with the wild life habitat. He further mentioned that 31
clearing this coal block would open the doors for allowing large number of coal mines to be opened in the un-fragmented forests of Mahan. This would permanently destroy the area both in terms of quality and quantity. The third objection he raised was that the power plants do not have the redeeming feature of being super critical units that generate 5 to 8% lesser amounts of carbon dioxide. The fourth point he mentioned was that the Forest Advisory Committee had not given its clearance since 2008 even before go/no go zone issue gained prominence. 27. Mr. Jairam Ramesh further stressed that Mahan Coal block would meet the coal requirement of the end use projects for only 14 years and stated I am not entirely clear why such a good quality forest area should be broken up for such a partial requirement. Sal is the predominant species in the forest. Sal is a 32
good coppicer but is very difficult to grow through raising plantations." Mr. Ramesh also mentions that the FAC subcommittee visited the area, filed a report on 7 th July 2011 and found that the quality of the forest and tree cover was much higher than that being claimed by Essar / Hindalco and the State government. He further stressed that the sub committees observation that the Mahan coal block was allocated in the catchment area of Rihand reservoir and that there is a high degree of probability of excessive siltation due to denudation of the slopes and hills when they are mined for coal. He also mentioned that implicit in the recommendation of the FAC sub committee to withhold the permission for forest clearance is a need to carry out more detailed environmental impact studies. He finally concluded by saying that in this background he was unable to 33
agree to consider the Mahan coal block for Stage I Forest Clearance. A copy of the letter dated 8.7.2011 of Mr. Jairam Ramesh along with all the annexure and typed copy is annexed hereto and marked as Exhibit-J1 to J-11 collectively. 28. Within three days i.e. 12 th July 2011 it was announced that Mr. Jairam Ramesh would resign as Minister for Environment and Forest. Thereafter Ms. Jayanthi Natarajan was brought in to this place.
29. On 30 th May 2012 Group of Ministers (GoM) in their 7 th Meeting held under the chairmanship of Finance Minister decided to grant Stage one Clarence. The File notings of Ms Jayanthi Natarajan indicated that she has not willingly given the consent and explicitly stated that MoEF expressed reservation against diversion of the dense forest land, but agreed to the view expressed by the GoM 34
and the fact that the entire civil work and construction of the plant is already complete after procurement of EC. Thereafter on 30 th October 2012 the MoEF has granted the stage I clearance to the project with some conditions. Copy of the minutes of the meeting along with the typed copy and the Stage one clearance is produced and marked as Exhibit-K1 and K2 Colly. 30. It appears that thereafter Mrs. Jayanthi Natarajan stepped down as Minister of Environment and Forests and Mr. Veerappa Moily has been appointed as the Minister (holding additional charge of the Ministry). It is further reported in newspapers and magazines that Mr. Moily was asked to take charge to fast track the clearance of various projects and in this process the environmental safeguards have been given a go bye to. I crave leave to refer to and rely upon the various 35
newspaper and magazine pieces to support this contention. 31. In view of the abovementioned documentary evidence, the statement regarding Essars use of high-level political connections to push the project through, is well justified.
IMPACT OF THE PROJECT 32. In the meanwhile the Forest Rights Act came to be passed in 2006 and was notified in 2008. It flamed popular imagination in villages only after about 3- 4 years by which time the issue of community forest rights and the requisite consent of Gram Sabhas became an important issue.
33. I submit that the allotment and the proposed mining will affect large number of villagers. There are 54 villages within the 0- 10 km radius of proposed coal mine 36
(according to the EIA report submitted by Mahan Coal Ltd in September 2010 ) dependent to varying degrees on the Mahan forest for their livelihood. These villages depend on the Mahan forest for seasonal non-traditional forest produce including Mahua, Tendu, Chaar, Chiraunji, fire wood for cooking purpose, plants with medicinal value, and many others. The block which is sought to be allotted from within the Mahan forest to the Mahan Coal Limited houses tribal population including Khairwar, Panika, Kol, Baiga, Gond and Aagaria who are dependent on Mahan forest for their livelihood. The present allotment will affect directly the livelihood of 28 villages (falling within 0-7 Km radius of the proposed coal block, according to EIA report submitted by Mahan Coal Limited) that depend significantly on Mahan, which include Khanua Khas, Jamgadi, Bhaluyatola, 37
Budher, Suggo, Amiliya, Semua, Dhirauli, Phatpani, Jattha tola, Gora, Khanua Nawa, Lamidah, Deori, Bandha, Pidarwah, Suhira, Bandhaura, Khairahi, Karsualal, Nagwa, Amrai khoh, Amdand, Siraswah, Chalari, Gorwani, Bajaudi, Labdai. The reason for setting this out is that in 2006 the Forest Rights Act was enacted which gave certain very important rights to those residing in forests including Scheduled Tribes and those residing in the forest, who are not included in the Scheduled Tribes. This entire forest population has been given certain crucial rights under the Act. These rights include individual rights as well as community rights i.e. right to individual property as well as rights to the community property. These include rights to hold and live in the forest land, access to collect and use and dispose of minor forest produce, entitlement to fishing and other products 38
of water bodies, grazing, rights of access to bio-diversity as also any other traditional rights, customary rights enjoyed by the forest dwellers. Under the act there is an entire process of recognition of rights which is to be undertaken. Only after settlements of these rights can any non-forest activity take place in a forest area. What is even more important in the present case is that under this act unless the gram sabhas of concerned village gives consent for forest land diversion, forests cannot be diverted for non- forest use. Thus a free and informed consent of the gram sabha is absolutely essential before forest clearance can be granted by MoEF and therefore before any project can start.
FRAUD AND INTIMIDATION
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34. In the present case what is required is sanction of all villages that will be affected by this project. A large part of this project approximately 80% falls within the jurisdiction of the gram sabhas of Amelia village. There is of course overlapping of certain rights by several villages in respect of this eighty percent. However, in view of this it is crucial that Amelia gram sabha consent had to be taken. Amelia has 2050 (from the 6 th
March Gram Sabha Resolution Copy) voters in their gram sabhas. On 15 th
August, 2012 the two villages of Amelia and Suhira both of which are dependent on Mahan had their respective gram sabhas to pass a resolution on community forest rights. However, if these resolutions had been passed Mahan Coal Limited would have major problems and therefore on that day it appears that Mahan Coal Limited alongwith State 40
administrative representatives scuttled these resolutions through improper and deceitful means. The villagers submitted a written complaint to the Collector on 16 th
August, 2012 asking for another gram sabha in a free and fair manner to be conducted and strict action to be taken against the accused. A copy of the written complaint dated 16 th August, 2012 along with the typed copy is annexed hereto and marked as Exhibit-L. Greenpeace India also has written a letter to D.C asking action to be taken and enquiry initiated for scuttling Gram Sabha proceedings in Amelia and Suhira village. Copy of the Complaint is annexed hereto and marked as Exhibit-M. However, no action has been taken so far nor was fresh gram sabha held soon thereafter. 35. Subsequently on 6 th March 2013 a gram sabha was hastily conducted in Amelia village. This was attended only by 41
184 persons which was way below the number usually attending. On the evening of the same day the then Tahsildar Shri Vivek Gupta along with policemen made rounds in the village with the gram sabha records forcing people to sign on. After this, they went on to forge signatures in the Sarpanch's (Santosh Singhs) house. Following aspects of this gram sabha need to be noted:
A. The gram sabha was called by the Collector without any earlier announcement at all and no agenda was circulated or pasted in any public place. 184 persons who attended the said gramsabha are mostly supporters of Essar (people who have sold some land to the company under a private purchase agreement) and they knew about 42
the meeting and allegedly attended the meeting. B. All if not most of the signatures after the first 184 are forged or bogus ones. This is obvious from the minutes of the gram sabha resolution and the signatures that appear at the bottom of it. A copy of the Gram Sabha Resolution along with English Translation is annexed at Exhibit-N . C. The following persons were deceased at the time of the gram sabha but their signatures are appended on the gram sabha minutes. The list of the names and the numbers in the resolution is annexed hereto and marked as Exhibit-O. Copies of the death certificates along with English Translation are annexed hereto and marked as Exhibit P1 and P2 43
Colly. I crave leave to refer to and rely upon the balance death certificates when produced. One person called Shiva Kumar Saket i.e. Rishi Saket is in prison serving a life imprisonment and there is no way he could have signed this. However, his signature appears at Srl.No.284. Most of the villagers whose signatures appear after 184 have either been forged or obtained using threat and coercion. A complaint in this regard is given to DC by the Villager and copy of the Complaint along with English Translation is produced and marked as Exhibit-Q. On the basis of this forged resolution on 18 th March 2013 the District Collector issued a certificate stating that there are no pending forest rights claims of the villagers in Amelia neither 44
individual nor community rights. A copy of the certificate will be produced at later stage.
36. Obviously the beneficiary of this certificate is the Mahan Coal Limited, which needs this certificate in order to push through the final forest clearance. Given the closeness of the people involved to the plaintiff, the involvement of the plaintiff is a reasonable inference.
37. On 11 th April, 2013 some of the villagers pointed this out to the Minister for Tribal Affairs by writing a letter to him and later meeting him to appraise him of the ground realities. Copy of the letter dated 11.4.2013 is annexed hereto along with the English Translation and marked as Exhibit-R. What is significant is the correspondence and notice of the minister himself who constantly protested against 45
this by his letters dated 7th June 2013 to Shri Shivraj singh Chouhan, Chief Minister of Madhya Pradesh, 19th June 2013 to Smt. Sonia Gandhi, Member of Parliament and Honble Chairperson, United Progressive Alliance and another letter dated 19th June 2013 to Shri Ram Naresh Yadav, Governer of Madhya pradesh. Copies of the said letters which reflect the real situation along with Typed copy are annexed hereto and marked as Exhibit- S1 to S4 colly.
38. On 7 th March 2013 itself upon hearing that the company officials along with police authorities were trying to push through such a resolution our employees Pankaj Singh, Akshay Gupta reached Budher village. They were stopped by company people in the periphery of Budher village and told that the villagers 46
are organising gram sabhas in the presence of the Tahsildar and Patwari and the employees were not allowed to enter the village saying that outsiders are not allowed. Our employees informed them that if no outsiders were there including company officials, our employees were not interested in going inside the village to attend the gram sabha. In the meanwhile company official Mr.Shukla called upon the police and Mr. Khandelwal of the company started threatening our people saying that the company personnel could levy serious charges against our activists such as rape etc. Mr. Ashok Pandey the thane in charge of Sarai Thane, Singrauli also tried to threaten our people. Another policeman Mr. Singh also threatened members of the Mahan Sangharsh Samiti. Mr. Bechan Lal Shah was told that he will be picked up and kept inside for a long term. Mr. Pandey of Mada police 47
complained to the SDM against our activists and Mahan Sangharsh Samiti. MSS members met SDM of Mada We have voice recorded the conversation with the police and company officials which took place on 7 th March 2013. We crave leave to refer to and rely upon the said voice record as well as its transcription when produced. 39. On 10 th September 2013 Mahan Sangharsh Samiti addressed a letter to the then Environment and Forest Minister, Director of Tribal Development and Planning, Sri. K.C. Deo Minister of Tribal Affairs and Prof. Warjinis placing on record their objection in the manner in which things were taking place including lack of due process . A copy of the letter along with English Translation is annexed hereto and marked as Exhibit-T1 to X4 Colly.
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40. In view of what is stated hereinabove the statement concerning forging and intimidation are fully justified, are bonafide and are in public interest. It needs to be mentioned that the coal block allocation is seen to be an issue of public interest and that is why the Supreme Court has entertained a public interest litigation in respect of the coal blocks allotment including the present one. Apart from this, retaining of forest is also seen as an issue of public importance which is the reason why the Supreme Court itself has been monitoring over more than 15 years the Godavarman (W.P(c):202/1995) case which pertains to various States in the country. Lastly the rights of forest dwellers are also seen as an issue of great public importance and that is why in 2006 a special legislation was enacted by the Union of India to protect their rights. Thus there can be no dispute on the 49
issues dealt by us concerning Mahan coal Limited are in public interest. It is further reiterated that we have exercised the freedom of speech bonafide and in a justifiable manner. I further submit that our organisation is a non governmental campaign organisation, in respect of which there is therefore a particular public interest in its freedom of expression, and in a greater leeway for it to criticise powerful bodies than would exist, say, for a commercial organisation. FURTHER INTIMIDATION 41. I submit that what is stated above is good enough to make out a case of intimidation also. However, there have been certain additional episodes of intimidation which need to be highlighted.
42. The plaintiff company and its associates have apparently been alarmed by the fact that we have been able to 50
provide proper information to the villages which enables them to understand their legal rights, the repercussions of what is happening vis a vis their rights over the Mahan forests and gives them the freedom to consent or not to consent to such activities which are closely linked to their rights. Our employees as well as certain villagers who have opposed the coal mining are regularly followed by persons in unnumbered vehicles (whose number plates have been removed). For instance on 13.8.2012 a white Tata sumo with no number plate followed our team in Amelia, Suhira and Budher villages. The vehicle was parked outside Mahan Coal Limited office in Amelia village after this. Obviously this was done to intimidate our team. This has been happening since January 2012. A police complaint was filed on 15.1.2012 citing details of the earlier incidents. A second complaint was 51
filed on 18.3.2012. On 14.8.2012 a letter was addressed to the Superintendent of Police pointing out these facts. However, till date no action has been taken in this complaint. A copy of the letter dated 14.8.2012 is annexed hereto and marked as Exhibit-U.
43. The intimidation has also been made in various other ways. For instance villagers have been picked up without any charges. On 4 th January 2014 a villager was picked up by police and detained without being charged. A copy of a letter protesting this dated 4 th January 2014 addressed to SP and DC of the dist., is annexed hereto along with English Translation and marked as Exhibit-V-1 and V-2 Colly. Similar letter dated 4.12.2013 addressed to State Human Rights Commission is also annexed hereto 52
along with English Translation and marked as Exhibit-W. 44. In fact without any permission from the MOEF concerning forest clearance the company had started using 25 labourers for digging up forest land in Jawaramba. A copy of the complaint dated 21.3.2013 along with the photographs are annexed hereto along with English Translation and marked as Exhibit-X
LOCAL OPPOSITION TO THE PROPOSED MAHAN COAL MINE 45. Mahan Sangharsh Samiti was formally formed in February 2013 though of course communities were active since 2 years prior thereto asserting their rights over Mahan forest. It consists of residents in villages in and around Mahan forest. These residents are entirely dependent on Mahan forest for their livelihood and are pushing hard for implementation of 53
community forest rights under the Forest Rights Act, 2006. MSS has support from more than 11 villages.
46. The community has been strongly opposing the allotment of forest land to Mahan Coal Limited and they have been holding large meetings from time to time. For instance in May 2012 in Budher there was a meeting attended by 500 villagers. There are video recordings and photographs of this meeting.. I crave leave to refer to and rely upon the video footages when produced. On 4 th August, 2013 a meeting was held in Amelia village with more than 1200 persons attending the same in respect of which there are photographs and video. Some of the photographs are annexed hereto and marked as Exhibit-Y Colly . I crave leave to refer to and rely upon the photographs and video graphs and other documents 54
when produced. . Large number of letters have been written expressing their protest. I am also annexing some of the pamphlets produced by Mahan Sangharsh Samiti during this period along with English Translation and marked as Exhibit-Z. There is correspondence concerning demand for implementation of the Forest Rights Act 2006 and copies of these letters are already annexed hereto and marked as Exhibit-T1 to T4 . 47. What is sought to be established is that there is clear conflict between the interest of Mahan Coal Limited on the one hand and the villagers and the forest dwellers on the other. In order to overcome this opposition the Mahan Coal Limited has resorted to intimidation carried out by its officials and agents, and also by district authorities with whom the company is in close collaboration to push the villagers into submission either 55
by falsity or by deceit or ultimately by even fabricating their signatures. Under the Forest Right Act it is mandatory for the Mahan Coal Limited to get clearance from the gram sabha in order to be given Stage II forest Clearance which will help them mine this forest. The only way they can get this clearance is by intimidation and by bogus and forged signatures . Besides it is obvious from the correspondence attached hereto and even otherwise that political influence is being used to not only get various permissions but also to force upon the villagers this project. In this context whatever statements we have made are true and bonafide and provable at the trial. Thus our pamphlets and our statements are completely justified in order to protect the rights of the villagers. There is nothing defamatory in those statements and assuming without admitting that there is 56
something defamatory the same cannot be injuncted in view of our plea of justification. In fact in the region we run what may be loosely called as a helpline on telephone called Radio Sangharsh wherein individuals in and around Mahan can call up and record their objections or their experience on issues of interest to them. A large number of persons from Mahan villages have called up and all these recordings are available wherein they narrate their experience of intimidation and protest. I crave leave to refer to and rely upon these recordings. 48. I also state that I had brought to the notice of the Mr.Shashi Ruia and Mr. Kumara Mangalam Birla some of the incident like intimidation threat and non- implementation of the FRA destruction of forest and the Plaintiff on 12 th August 2012 and the same was acknowledged by the plaintiff by email on 10 th September 57
2012. Again on 28 th October 2013 and to Mr. Kumar Mangalam Birla on 30 th
October 2013. However there is no response thereafter for the action taken there on. Copies of these latter is produced and marked as Exhibits-AA-1 to AA-4. PARAWISE RESPONSE 49. I shall now deal para-wise with the plaint and affidavit in support to the extent is necessary. 50. In respect of alleged act of trespass, the present defendant has agreed that they will not commit any trespass till further orders in respect of the plaintiffs property described at Exhibit A to the plaint. This is without prejudice to their contention that there was never any trespass as alleged. However, in view of the aforesaid statement in the present affidavit they are not dealing with the allegations pertaining to alleged trespass 58
and the actions pursuant to the alleged trespass. 51. I submit that any Dharna or distribution of pamphlets outside the Plaintiffs property cannot be objected to and no injunction should be granted in respect of such actions outside the plaintiffs property. 52. With reference to para 5(j) of the plaint I deny that the contents of the leaflets were false or malicious or offensive, insulting, distasteful, defamatory or libellous of the plaintiff and the Essar group of companies or any of them. In fact, as demonstrated above, the contents were true and published in the public interest. 53. With reference to para 7, I deny the statements referred in the said paragraph are offensive, insulting, distasteful or defamatory of anyone and likely to bring the plaintiff and / or the Essar group of 59
companies into disrepute, dislike, ridicule, contempt, disesteem as alleged or at all. I further deny that any of the statements have been made irresponsibly, maliciously or with oblique motive as alleged or at all or for furthering our narrow or otherwise political agenda at the cost of the plaintiffs and Essar s reputation, image and esteem at all. I deny that imputations and statements are false or in any event as harmed the plaintiffs and Essar and having further harmed Essar. I deny that we are required to pay any amount to Essar for any of our actions. 54. With reference to para 8 I deny that the plaintiffs are facing worldwide embarrassment. I deny that there is any lowering of image or goodwill of the plaintiff or our action has affected the reputation or goodwill of the plaintiff. I deny that any of the prayers as sought in the plaint or in the notice of motion ought 60
to be granted except whatever we have stated hereinabove.
Solemnly affirmed at Bombay ) Dated this 11th day of ) February,2014 )Defendant No. 3
Alan Scott - New Critical Writings in Political Sociology Volume Three - Globalization and Contemporary Challenges To The Nation-State (2009, Ashgate - Routledge) PDF