1

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
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
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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
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
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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
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
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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
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
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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 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
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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
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
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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
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
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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 23
rd
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 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
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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 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.
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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
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
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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 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.
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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 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
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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 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
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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
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

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 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.

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 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

Before me,
Identified by me

MIHIR DESAI
Advocate for the Defendant No.3