In Re: T.N. Godavarman Thirumulpad vs Union of India and Others

HELD: 1.1 If the direction as issued by this Court in paragraph 56.5 of the order dated 3rd June 2022 is continued, then no permanent structure would be permitted to come up for whatsoever purpose in the Eco-sensitive zones-ESZs. Hundreds of villages are situated within the ESZs in the country. If no permanent construction is to be permitted for any purpose, a villager who is desirous to reconstruct his house would not be permitted. Similarly, if there is an extension in their family and some additional construction is required for accommodating the enlarged family, the same would also not be permitted. Similarly, if the Government decides to construct schools, dispensaries, anganwadis, village stores, water tanks and other basic structures for improvement of the life of the villagers, the same would also not be permitted. The effect of the order would be to prevent the State or the Central Government from constructing roads and provide other facilities to the villagers. [Para 48][629-C-E]

1.2 If the order dated 3rd June 2022 is not modified, it would also be impossible for the Forest Departments to conduct eco-development activities around National Parks and Sanctuaries. The said activities are required with the dual objectives of protection of wildlife and provision of benefits for the local communities. MoEF & CC provides financial assistance to the States under the Centrally Sponsored Scheme-Integrated Development of Wildlife Habitats, which includes assistance for eco-development activities. These activities often involve construction of small structures which are permanent in nature in areas including ESZs. [Para 49][629-E-G]

1.3 There are various regulated and permissible activities. There are also certain projects of national and strategic importance such as construction of National Highways, Railways, Defence related infrastructure etc. The effect of the direction in

56.5 of the order dated 3rd June 2022 is that all such activities would be permanently prohibited. In this respect, it is to be noted that MoEF & CC has issued an Office Memorandum dated 17th May 2022 which required that any activity listed in Schedule of the EIA Notification 2006, when conducted in a notified ESZs, or in the case of National Parks and Sanctuaries for which no ESZ has been finally notified, when conducted within 10 kilometres of such National Park or Sanctuary, requires the consideration and recommendation of the NBWL or its Standing Committee in addition to the Environment Clearance under the Environment (Protection) Act, 1986. Additionally, activities which are regulated as per the specific ESZ notification, require approval as per that notification. As such, there are inbuilt safeguards for preventing rampant construction and abuse of process which may be detrimental to the development and maintenance of wildlife habitats. If the direction as contained in paragraph 56.5 of the order dated 3rd June 2022 that even for continuation of existing activities, the permission of the PCCF of each State or Union Territory would be necessary, remains unmodified, taking into consideration that in each State or Union Territory there would be hundreds of villages wherein millions of people would be residing, the PCCF would be left with no other job except to consider such applications for permission to continue such activities. Even a farmer desirous to continue farming activities would be required to seek such permission. Such a direction is impossible to be implemented. [Para 50][630-B-G]

1.4 If such a direction is continued, rather than avoiding man-animal conflict, it would intensify the same. As observed in the said guilelines, the requirement of declaring ESZs is not to hamper day to day activities of the citizens but is meant to protect the precious forests/Protected Areas from any negative impact, and to refine the environment around the Protected Areas. [Para 51][630-G-H]

1.5 The necessity to have ESZs is to provide a buffer zone around the Protected Areas. The rights of the villagers residing in the Protected Areas are required to be settled in accordance with the provisions contained in the Wild Life (Protection) Act, 1972 and such villagers are rehabilitated outside the Protected Areas. However, no such settlement of rights is available to the villagers residing in the ESZs areas. As stated in the said Guidelines, the purpose of declaring ESZs is not to hamper the day to day activities of the citizens. If the direction as issued is continued, it would certainly hamper the day to day activities of the citizens residing in ESZs. As such, the said direction needs to be modified. [Para 52][631-A-C]

1.6 Insofar as direction in paragraph 56.1 of the order dated

3 rd June 2022 is concerned, a perusal of various orders would reveal that this Court has not directed any minimum area from the demarcated boundary of such Protected Areas. The area to be declared as ESZ cannot be uniform and would be Protected Area specific. In some cases, it may be 10 kilometres on one side and 500 meters on the other side. In certain cases, it may not be possible to have a uniform minimum area by virtue of interstate boundaries or a sea or a river beyond one side of the Protected Area. In any case, a detailed procedure is required to be followed as prescribed under Rule 5 of the 1986 Rules. Once such a notification is issued after following the procedure prescribed under the Environment (Protection) Rules 1986, the ESZs would have to be as per the said notification. [Para 55][631D-F]

1.7 As required under sub-rule (3) of Rule 5 of the 1986 Rules, before any final notification is issued, a draft notification is required to be published in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time. Any person interested in filing any objection to such a draft notification is entitled to file objection within a period of

60 days from the date of publication of the draft notification in the Official Gazette. The Central Government can be directed to give a wide publicity to the draft notification so that all persons interested have knowledge about issuance of such draft notification. [Para 56][631-G-H; 632-A]

1.8 After following the said procedure, the matter is placed before the Expert Committee consisting of 13 organizations having expertise in the relative field. As such, before an ESZ area is specified, various factors are taken into consideration. There are various factors which would determine the ESZs for a particular Protected Area. The circumstances may differ from one Protected Area to another Protected Area. As such, the direction which prescribes a uniform one kilometre ESZ requires to be modified. [Para 57][632-B-C]

1.9 On the date of filing of the present application, final notifications have been issued in respect of 474 Protected Areas whereas draft notifications have been issued in respect of 102 Protected Areas. 73 proposals are pending. This Court has already found the said Guidelines to be reasonable and has accepted the same. The Court has also accepted the view of the Standing Committee of the NBWL that uniform guidelines may not be possible in respect of each Sanctuary or National Park for maintaining ESZs. Though the Court has observed that a minimum width of one kilometre in ESZ ought to be maintained, in paragraph 56.6 of the order dated 3rd June 2022 itself, it has observed that minimum width of the ESZ may be diluted in overwhelming public interest but for that purpose the State or Union Territory concerned is required to approach Central Empowered Committee (CEC) and MoEF & CC. Both these bodies shall give their respective recommendations before this Court and on that basis, the Court should pass appropriate order. [Para 58][632-C-F]

1.10 The ESZs are required to be notified after following the procedure as prescribed under the 1986 Rules and the said Guidelines. Such notifications cannot be issued unless a close scrutiny at various levels including the scrutiny by Expert Committee consisting of experts from 13 organizations. As such, the direction as contained in paragraph 56.6 of the order dated 3rd June 2022 also needs to be modified. [Para 59][632-G]

1.11 Insofar as the restriction on mining is concerned, it has been the consistent view of this Court that the mining activities within an area of one kilometre of the boundary of the Protected Areas would be hazardous for the wildlife. Though in the case of Goa Foundation’s case the said directions were issued in respect of State of Goa, such directions need to be issued on Pan-India basis. [Para 60][632-H; 633-A]

1.12 The direction in paragraph 56.1 of the order dated 3rd June 2022 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. However, the Central Government is directed that wide publicity should be given to the draft notification which is required to be published under the provisions of clause (a) of sub-rule (3) of Rule 5 of the 1986 Rules. The final notification to be published under clause (d) of sub-rule (3) of Rule 5 of the 1986 Rules shall not be given effect for a period of 30 days from the date of issuance thereof. It is further directed that any person who is aggrieved with such a final notification would be entitled to approach this Court directly by filing an application in the instant proceedings. [Para 61-63][633-B-D]

1.13 It is clarified that the direction contained in paragraph

56.1 of the order dated 3rd June 2022 would not be applicable where the National Parks and Sanctuaries are located on interState borders and/or share common boundaries. The direction contained in paragraph 56.4 of the order dated 3rd June 2022 is modified and directed that mining within the National Park and Wildlife Sanctuary and within an area of one kilometre from the boundary of such National Park and Wildlife Sanctuary shall not be permissible. [Para 64, 65][633-E-F]

1.14 The directions contained in paragraph 56.5 of the order dated 3rd June 2022 is modified and replaced 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) 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. [Para 66][633-G-H; 634-A-B]

T.N. Godavarman Thirumulpad Vs U.O.I (2006) 5 SCC 25; T.N. Godavarman Thirumulpad Vs U.O.I (2010) 13 SCC 740; Goa Foundation v. U.O.I. (2011) 15 SCC 791; Goa Foundation v. Union of India and Others (2014) 6 SCC 590 : [2014] 5 SCR 302 - referred to.