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Judgment
(PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE)
The petitioner has filed the present petition impugning an endorsement dated 05.01.2023 [impugned endorsement] issued by respondent No.6 - the Deputy Conservator of Forest [DCF], declining to issue a ‘No Objection Certificate [NOC] for grant of quarrying lease for clay over an area measuring one acre, out of the lands falling in Sy.No.243/122, Plot No. 485 of Ramnagar (Akrali) Village, Joida Taluk, Uttara Kannada District. The petitioner’s request for the quarrying lease was rejected on the ground that the subject land is at a distance of 9.5 kms. from the Kali Protected Area and therefore quarrying was not permissible. The impugned endorsement also states that the ecosystem for the Kali Protected Area is to be recognised as an Eco Sensitive Zone [ESZ] and therefore permission for commercial mining cannot be granted.
The impugned endorsement was issued on the premise that the area within 10 kms. of the boundary of the Kali Tiger Reserve [the KTR] constitutes its ESZ, and, therefore, commercial mining within that zone is impermissible. The petitioner challenges the premise that an area of width 10 kms. surrounding the boundary of the KTR is an ESZ, where mining is proscribed.
The respondents filed a statement of objections supporting the stand that no commercial mining is permissible within the zone of 10 kms. from the boundaries of KTR, pending final declaration of the ESZ of the said Reserve.
In view of the above, the only question to be addressed is whether the ESZ of KTR extends to a distance of 10 kms. from the boundaries of KTR and whether commercial mining is prohibited within the said zone.
Ms. Akbar, the learned Additional Government Advocate, referred to the guidelines dated 09.02.2011 issued by the Ministry of Environment and, Forests (now the Ministry of Environment, Forest and Climate Change), Government of India [MoEF]. The said guidelines, inter alia, provide that “The width of the Eco-sensitive Zone and type of regulations will differ from Protected Area to Protected Area. However, as a general principle the width of the Eco-sensitive Zone could go up to 10 kms. around a Protected Area as provided in the Wildlife Conservation Strategy 2002”.
The respondents also referred to the judgment dated 03.06.2022 passed by the Supreme Court in I.A. 1000/2003 and other connected applications in WP.No.(C) 202 of 1995. titled In Re: T.N. Godavarman Thirumulpad v Union of India & Ors1, [Godavarman-I], wherein the Supreme Court, inter alia, directed as under:
"56.8In respect of sanctuaries or national parks for which the proposal of a State or Union Territory has not been given, the 10 kilo-meters buffer zone as ESZ, as indicated in the order passed by this Court on 4th December 2006 in the case of Goa Foundation (supra) and also contained in the Guidelines of 9th February 2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till a final decision in that regard is arrived at."2
In addition to the aforesaid directions, the respondents also relied on the directions issued by the Supreme Court in the subsequent judgment dated 26.04.2023 passed in various interim applications in the same proceedings - In Re: T.N. Godavarman Thirumulpad v Union of India3 [Godavarman-II] - whereby it was directed as under:.
" 61. We are therefore inclined to allow the present I.A. The direction in paragraph 56.1 of the order dated 3rd June 2022 (supra) is modified and clarified that the directions contained therein would not be applicable to the ESZs in respect of which a draft and final notification has been issued by the MoEF & CC and in respect of the proposals which have been received by the Ministry.
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"66.We also modify the directions contained in paragraph 56.5 of the order dated 3rd June 2022 (supra) and replace the same as under:
"(i)The MoEF & CC and all the State/Union Territory Governments shall strictly follow the provisions in the said Guidelines dated 9th February 2011 and so also the provisions contained in the ESZs notifications pertaining to the respective Protected Areas with regard to prohibited activities, regulated activities and permissible activities;
(ii)We further direct that while granting Environmental and Forest Clearances for project activities in ESZ and other areas outside the Protected Areas, the Union of India as well as various State/Union Territory Governments shall strictly follow the provisions contained in the Office Memorandum dated 17th May 2022 issued by MoEF & CC."
It is also relevant to note that pursuant to the recommendations made by the Deputy Conservator Forests (Kali Tiger Reserve), the State Government had forwarded a proposal for establishment of ESZ for KTR to the Central Government. Pursuant thereto, the Central Government published a draft notification [S.O. 3369(E)] on 02.11.2016, inviting objections and suggestions from the public to the proposal of notifying an area of 7 kms. around the boundary of the Dandeli -Anshi Tiger Reserve as “the Dandeli-Anshi Tiger Reserve Eco-Sensitive Zone”. It is stated that the said notification has not been approved as yet and, therefore, till its approval, a zone of 10 kms. from the boundaries of KTR is required to be considered as ESZ of KTR.
The issue whether there is a ‘default Eco-Sensitive Zone’ of 10 kms. fell for consideration before a Co-ordinate Bench of this Court in M/s. Bhushan Enterprises v. State of Karnataka4. In the said case, the petitioner had sought for a declaration of deemed extension of the lease in terms of Rule 8A(4) of the Karnataka Minor Mineral Concession Rules, 1994 [KMMC Rules]. The lease lands were located at a distance of 7.4 kms. from Kamasandra Wildlife Sanctuary. The respondents did not process the extension of the lease on the ground that the lease was within the ‘default Eco-Sensitive Zone’ of the width of 10 kms. of the Kamasandra Wildlife Sanctuary. The respondents relied upon the guidelines dated 09.02.2011 issued by MoEF and the order dated 4.12.2006 passed by the Supreme Court in Goa Foundation v Union of India and Others5 [Goa Foundation-I], which reads as under:
“3.The order earlier passed on 30-1-2006 [Goa Foundation v. Union of India, (2011) 15 SCC 793] refers to the decision which was taken on 21-1-2002 to notify the areas within 10 km of the boundaries of national parks and sanctuaries as eco-sensitive areas. The Letter dated 27-5-2005 is a departure from the decision of 21-1-2002. For the present, in this case, we are not considering the correctness of this departure. That is being examined in another case separately. Be that as it may, it is evident that the States/Union Territories have not given the importance that is required to be given to most of the laws to protect environment made after Rio Declaration, 1992.
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5.The MoEF would also refer to the Standing Committee of the National Board for Wildlife, under Sections 5-B and 5-C(2) of the Wildlife (Protection) Act, the cases where environment clearance has already been granted where activities are within 10 km zone".
In Bhushan Enterprises (supra), this Court noted that the aforesaid order was clarified by the Supreme Court by its subsequent order dated 21.04.2014 in Goa Foundation v. Union of India6 [Goa Foundation-II]. In regard to the Guidelines, this Court held as under:
“9.The learned Additional Government Advocate also relied upon the guidelines for declaration of Eco-Sensitive Zones around National Parks and Wildlife Sanctuaries. The Guidelines note that in response, some of the State Governments had raised concerns over the applicability of radius of 10 Km. wide Eco-Sensitive Zone from the Protected Area Boundary. Thereafter, the Guidelines refer to National Wildlife Action Plan and the decision of National Board for Wildlife etc. Guideline No.4 is in respect of the extent of Eco-Sensitive Zones. Clause (1) thereof clearly indicates that defining of the extent of Eco-Sensitive Zones around the Protected Areas will have to be kept flexible and Protected Area specific. The width of the Eco-Sensitive Zone and the type of Regulations will differ from Protected Area to Protected Area. It is observed that as a general principle, the width of the Eco-Sensitive Zone could go up to 10 Kms. around a Protected Area. Sub-clause 2 of clause 4 refers to cases where Eco-Sensitive Zone can be extended beyond 10 Kms. Thus, the guidelines relied upon by the learned Additional Government Advocate itself makes it clear that the same does not provide for a straight jacket formula that in case of every Wildlife Sanctuary, the radius of 10 Kms. around it should be construed as Eco-Sensitive Zone. Thus, the said Guidelines would not help the learned Additional Government Advocate to support the concept of "Default Eco-Sensitive Zone" of 10 Kms.”
This Court rejected the contention that there was any 'default Eco-sensitive Zone’ and concluded as under:
“11.Thus, the impugned endorsements/orders at Annexures-A and C are based on a non-existing concept of "Default Eco-Sensitive Zone" of radius of 10 Kms. around every Wildlife Sanctuary. Therefore, only on the basis of the concept of "Default Eco-Sensitive Zone", the prayer for grant of deemed extension made by the petitioner could not have been rejected and the said prayer ought to have been considered within the four corners of law.”
The aforesaid decision covers the issues raised in the present petition.
As noted above, the order dated 04.12.2006 in Goa Foundation-I (supra) was clarified by the Supreme Court in Goa Foundation-II (supra), wherein it was held as under:
“50.When, however, we read the order dated 4-12-2006 of this Court in Goa Foundation v. Union of India [Goa Foundation v. Union of India, (2011) 15 SCC 791], we find that the Court has not prohibited any mining activity within 10 kilometre distance from the boundaries of the national parks or wildlife sanctuaries. The relevant portion of the order dated 4-12-2006 [Goa Foundation v. Union of India, (2011) 15 SCC 791] is quoted hereinbelow: (SCC pp. 792-93, paras 4-5)
“4.The Ministry is directed to give a final opportunity to all States/Union Territories to respond to its Letter dated 27-5-2005. The State of Goa also is permitted to give appropriate proposal in addition to what is said to have already been sent to the Central Government. The communication sent to the States/Union Territories shall make it clear that if the proposals are not sent even now within a period of four weeks of receipt of the communication from the Ministry, this Court may have to consider passing orders for implementation of the decision that was taken on 21-1-2002, namely, notification of the areas within 10 km of the boundaries of the sanctuaries and national parks as eco-sensitive areas with a view to conserve the forest, wildlife and environment and having regard to the precautionary principles. If the States/Union Territories now fail to respond, they would do so at their own risk and peril.
5.MoEF would also refer to the Standing Committee of the National Board for Wildlife, under Sections 5-B and 5-C(2) of the Wild Life (Protection) Act, the cases where environment clearance has already been granted where activities are within 10 km zone.”
It will be clear from the order dated 4-12-2006 [Goa Foundation v. Union of India, (2011) 15 SCC 791] of this Court that this Court has not passed any orders for implementation of the decision taken on 21-1-2002 to notify areas within 10 km of the boundaries of national parks or wildlife sanctuaries as eco-sensitive areas with a view to conserve the forest, wildlife and environment. By the order dated 4-12-2006 [Goa Foundation v. Union of India, (2011) 15 SCC 791] of this Court, however, the Ministry of Environment and Forests, Government of India, was directed to give a final opportunity to all States/Union Territories to respond to the proposal and also to refer to the Standing Committee of the National Board for Wildlife the cases in which environment clearance has already been granted in respect of activities within the 10 km zone from the boundaries of the wildlife sanctuaries and national parks. There is, therefore, no direction, interim or final, of this Court prohibiting mining activities within 10 km of the boundaries of national parks or wildlife sanctuaries.”
The said clarification was also noted by the Supreme Court in a later decision in Godavarman-II (supra), wherein the Court observed as under:
“24.It could thus be seen that the Court has specifically observed that this Court had not passed any orders for implementation of the decision taken on 21st January 2002 to notify areas within 10 kilometres of the boundaries of National Parks or Wildlife Sanctuaries as ESZs with a view to conserve the forest, wildlife and environment. The Court therefore clarified that there is no direction, interim or final, prohibiting mining activities within 10 kilometres of the boundaries of National Parks or Wildlife Sanctuaries.”
It is also necessary to refer to the order dated 11.12.2018, whereby the direction to maintain an ESZ of 10 kms., pending a proposal and declaration, was issued only in respect of 21 National Parks and Wildlife Sanctuaries or which no proposals had been furnished. Paragraphs 27 and 28 of the decision in Godavarman-II (Supra), which refer to the said order dated 11.12.2018, are reproduced below:
27.The next relevant order would be dated 11th December 2018. It will be relevant to refer to the following part of the said order:
"The learned ASG has informed us that there are 104 National Parks and 558 Wildlife Sanctuaries making a total of 662 National Parks and Wildlife Sanctuaries in the country.
The proposals for declaring areas around these National Parks and Wildlife Sanctuaries as Eco Sensitive Zone have been received from State Governments/UT Administrations for 641 National Parks and Wildlife Sanctuaries. No proposals have been received in respect of 21 National Parks and Wildlife Sanctuaries.
The proposals have been accepted and Notification has been issued in respect of 289 National Parks and Wildlife Sanctuaries as on 26.11.2018 and draft Notification has been prepared in respect of 206 National Parks and Wildlife Sanctuaries.
The declaration with regard to Eco Sensitive Zone is under process with the Ministry of Environment, Forests and Climate Change (MoEF) as well as with the State Governments in respect of 4146 National Parks and Wildlife Sanctuaries.
We expect the Ministry of Environment, Forests and Climate Change to actively pursue the preparation of the draft Notification and to issue a final Notification at the earliest.
The proposals for 21 National Parks and Wildlife Sanctuaries in respect of which proposals have not yet been received by the MOEF are as follows:-
It is submitted by the learned Amicus that this issue has been pending since sometime in December, 2006. 12 years have gone-by but no effective steps have been taken by the State Governments in respect of the National Parks and Wildlife Sanctuaries mentioned above.
Under the circumstances, we direct that an area of 10 Kms around these 21 National Parks and Wildlife Sanctuaries be declared as Eco Sensitive Zone by the MoEF. The declaration be made by the MoEF at the earliest.
Liberty is granted to the State Governments to move an application for modification of this order along with proposal only two weeks after submission of the proposals to the MoEF."
28.It can be seen that this Court has recorded the submissions of the learned ASG that there were 104 National Parks and 558 Wildlife Sanctuaries making a total of 662 National Parks and Wildlife Sanctuaries in the country. It was further recorded that the proposals for declaring areas around these National Parks and Wildlife Sanctuaries as ESZs had been received from the State Governments/Union Territories. It can further be seen that no proposals have been received in respect of 21 National Parks and Wildlife Sanctuaries. It further recorded that the proposals had been accepted and notification had been issued in respect of 289 National Parks and Wildlife Sanctuaries as on 26th November 2018 and draft notification had been prepared in respect of 206 National Parks and Wildlife Sanctuaries. The Court therefore expected the MoEF & CC to actively pursue the preparation of the draft Notification and to issue a final Notification at the earliest. The Court then recorded 21 National Parks and Wildlife Sanctuaries in respect of which proposals have not yet been received by the MoEF & CC alongside its anguish that though 12 years had been passed, no effective steps have been taken by the State Governments in respect of the National Parks and Wildlife Sanctuaries named in the said order. Therefore, the Court directed that an area of 10 kilometres around these 21 National Parks and Wildlife Sanctuaries be declared as ESZs by the MoEF & CC. Liberty was granted to the State Governments to move an application for modification of the said order. However, it further directed that the application should be along with the proposal for declaration of ESZs."
It is apparent from the above that there is no direction issued by the Supreme Court providing for an ESZ of 10 kms. in respect of sanctuaries or national parks where proposals delineating the ESZ have been submitted or notifications have been issued.
It is also relevant to refer to the following directions issued by the Supreme Court in Godavarman-I (supra):
"56.1.Each protected forest, that is, national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9-2-2011 shall be strictly adhered to. For Jamua Ramgarh Wildlife Sanctuary, it shall be 500 m so far as subsisting activities are concerned.
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56.4.Mining within the national parks and wildlife sanctuaries shall not be permitted.
56.5.In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as per the 9-2-2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ.
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56.8.In respect of sanctuaries or national parks for which the proposal of a State or Union Territory has not been given, the 10 km buffer zone as ESZ, as indicated in the order passed by this Court on 4-12-2006 in Goa Foundation [Goa Foundation v. Union of India, (2011) 15 SCC 791] and also contained in the Guidelines of 9-2-2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till a final decision in that regard is arrived at.”
A plain reading of Para 56.8 of Godavarman-I (supra) (which is numbered as paragraph 44 (h) of the judgment as available on the website of the Supreme Court) indicates that the direction for a 10 kms. buffer zone as ESZ, was premised on the order dated 04.12.2006 in Goa Foundation-I (supra). However, as noted above, the said order was clarified in Goa Foundation-II (supra), and the Court explained that no such directions had in fact been issued. This position was amply re-iterated by the Supreme Court in Godavarman-II (supra). The directions for a 10 kms. ESZ was, essentially, confined to 21 National Parks and Wildlife Sanctuaries, in respect of which no proposal for an ESZ had been submitted.
In the present case, the draft notification dated 02.11.2016 has been issued delineating the proposal for an ESZ for KTR. The said proposal was considered in the 26th Meeting of the Expert Committee on Eco-Sensitive Zones held on 07.07.2017. The relevant extract of the said minutes of the said meeting is set out below:
"C. KARNATAKA
5. Eco-sensitive Zone around Dandeli Anshi Tiger Reserve, Karnataka:
Shri P Ravi, Addl. Chief Secretary, Govt. of Karnataka and Shri C. Jayaram, APCCF (WL), Govt. of Karnataka apprised the Committee about the proposal. The draft Notification was published on 03.11.2016. The salient features of the draft Eco-sensitive Zone (ESZ) are as follows:
Area of PA : 814.88 Sq. Km Proposed ESZ area : 1201.94 Sq. Km Proposed Extent : 7 Km.
Comments received for removing the Joida Taluka from the ESZ were discussed by the Committee. It was informed that Anshi National Park and Dandeli Wildlife Sanctuary were together granted the status of Project Tiger Reserve, and declared as 'Anshi Dandeli Tiger Reserve' in January, 2007. In December 2015, Dandeli Anshi Tiger Reserve was renamed as Kali Tiger Reserve. The Kali Tiger Reserve (KTR) is a part of 8,800 Sq Km of tiger conservation landscape comprising Protected Areas and reserved forests of Dandeli Wildlife Sanctuary towards north of KTR abutting Bhimghad Wildlife Sanctuary and further connects Radhanagari and Koyna Wildlife Sanctuaries in Maharashtra. To the west, five Protected Areas in Goa State abuts KTR. Similarly reserve forests on the northeast of KTR forms permeable landscapes for tigers. The reserved forests in the south, connects KTR with Bedthi and Aghanashini Conservation Reserves and further down to Mookambika and Sharavathi Valley Wildlife Sanctuaries.
Shri C. Jayaram informed that the State Govt. has reduced the ESZ area from 1201.94 square kilo meter to 312.52 square kilo-meters due to public demand and the Cabinet Sub Committee (State Government.) meeting held on 10-02-2017. No Eco-sensitive Zone is proposed on the western side due to interstate boundary with Goa and on the northern side also no Eco-sensitive Zone is proposed as it borders Bhimgad Wildlife Sanctuary. The extent of Eco-sensitive Zone varies between zero to 4.5 kilo-meters. The Committee suggested that the Wildlife Division of the Ministry may examine the proposal of State Govt. to reduce the ESZ and take a view and suggest the revised extent/boundary of Eco-sensitive Zone. Committee also suggested to include Community Nature Conservancy as a promoted activity. The Committee after detailed deliberation recommended for finalization of draft Notification with above said changes."
As can be seen from the above, the State Government had proposed a further reduction of the ESZ from that delineated under the draft notification dated 02.11.2016, and the Expert Committee had recommended finalisation of the draft notification after examination of the said proposal.
In view of the above, the default Eco-Sensitive Zone of 10 kms. is not applicable for KTR. Thus, the impugned endorsement has been issued on an ex- facie erroneous premise that there is a default ESZ of 10 kms. from the boundaries of KTR.
The impugned endorsement is accordingly set aside, and the respondents are directed to examine the petitioner's application afresh.