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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION Lodg. NO. 159 OF 2014

IN

SUIT Lodg. NO. 55 OF 2014

Essar House Limited .. Applicant Orig. Plaintiff In the matter between Essar House Ltd Plaintiff Versus Clear Sweep & Ors. .. Defendants

AFFIDAVIT IN REPLY ON BEHALF OF DEFENDANT NO.3

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

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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

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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

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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 22nd July, 2002 and re-

registered on 17th 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

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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

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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

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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

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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

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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.

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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

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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

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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

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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 12th, 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

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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

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environmental violations and this is

reflected in a report which appeared

in the Hindu on 28th 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

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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

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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

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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

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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

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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 23rd December 2008 Union

Environmental Ministry granted

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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 23rd December

2008, there was phase-wise clearance

needed under the Forest Conservation Act

1980 which had to be obtained through

FAC. On 20th July 2009 again the FAC

refused to grant approval and sought

more information from the State

Government. On 23rd July 2008 the Forest

Advisory Committee (FAC) of the Ministry

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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 10th 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.

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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

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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

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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 5th

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 12th March

2010. On 17th 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.

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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 12th May 2011 Shri Shashi Ruia

met Shri Jairam Ramesh followed by Shri

Kumaramangalam Birla (from Hindalco).

On 12th 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 13th May 2010.

25. On 24th 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

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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 16th August 2010

requesting for expediting the forest

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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

30th 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 8th 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

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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

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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 7th 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

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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. 12th 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 30th May 2012 Group of Ministers

(GoM) in their 7th 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

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and the fact that the entire civil work and

construction of the plant is already

complete after procurement of EC.

Thereafter on 30th 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

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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

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(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,

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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

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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

39

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 6th

March Gram Sabha Resolution Copy)

voters in their gram sabhas. On 15th

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 16th

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 16th 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 6th 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 18th 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 11th 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 7th 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 7th March 2013. We crave leave

to refer to and rely upon the said voice

record as well as its transcription when

produced.

39. On 10th 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.

48

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 4th January 2014 a villager

was picked up by police and detained

without being charged. A copy of a letter

protesting this dated 4th 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 4th 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 12th August

2012 and the same was acknowledged by

the plaintiff by email on 10th September

57

2012. Again on 28th October 2013 and to

Mr. Kumar Mangalam Birla on 30th

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

Before me,

Identified by me

MIHIR DESAI

Advocate for the Defendant No.3