IN RE: T.N. GODAVARMAN THIRUMULPAD versus UNION OF INDIA AND ORS.
[2022] 17 S.C.R. 1122, Supreme Court of India, 2022
Outcome: Disposed off
Segment: Issues
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IN RE: T.N. GODAVARMAN THIRUMULPAD
v.
UNION OF INDIA AND ORS.
(I.A. No.1000 of 2003)
(In Writ Petition (Civil) No. 202 of 1995)
JUNE 03, 2022
[L. NAGESWARA RAO, B.R. GAVAI AND
ANIRUDDHA BOSE, JJ.]
Environment Law – Wild Life (Protection) Act, 1972 – Wildlife
sanctuaries and National parks – The present set of applications
arise out of a report of the Central Empowered Committee (CEC)
specifically pertaining to Jamua Ramgarh wildlife sanctuary in State
of Rajasthan – Report stated about exploitation of protected forest
mainly by private miners mostly with temporary working permits
obtained from the Governmental agencies – Supreme Court had
converted the report with its set of recommendations into an
Interlocutory Application – Recommendations made in the second
report by the CEC, went beyond the Jamua Ramgarh Sanctuary
and dealt with creation of identification and declaration of safety
zones around protected forests all across the country – In the present
order Supreme Court dealt with two issues i.e. Scope of mining
activities in and around a wildlife sanctuary in the State of Rajasthan
(Jamua Ramgarh) and prescribing Eco sensitive zones (ESZ)
surrounding the wildlife sanctuaries and national parks – Held:
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 – For Jamua Ramgarh
wildlife sanctuary, it shall be 500 metres – If the ESZ is already
prescribed as per law that goes beyond one kilometre buffer zone,
the wider margin as ESZ shall prevail – Mining within the national
parks and wildlife sanctuaries shall not be permitted – If any activity
is already being undertaken within the one kilometre or extended
buffer zone (ESZ) of any wildlife sanctuary or national park that
does not come within the ambit of prohibited activities, such activities
may continue with permission of the Principal Chief Conservator
of Forests of each State or Union Territory – The minimum width of
the ESZ may be diluted in overwhelming public interest but for that
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purpose the State or Union Territory concerned shall approach the
CEC and MoEF&CC and both these bodies shall give their respective
opinions/recommendations before Court – In respect of sanctuaries
or national parks for which the proposal of a State or Union
Territory has not been given, the 10 kilometres buffer zone as ESZ
shall be implemented – The CEC shall quantify the compensation to
be recovered from each miner indulging in mining activities within
the Jamua Ramgarh sanctuary in violation of any statutory provision
or order of this Court – Specific recommendations for compensatory
afforestation, reclamation, clearing overburden dumping as also
compensation in monetary units for degradation of forest resources
shall also be made – A further set of recommendations concerning
confiscation of earth moving equipments and other machineries lying
within or in the periphery of the said sanctuary shall be made by
the CEC.
Disposing the I.A., the Court
HELD : 1. The role of the State cannot be confined to that
of a facilitator or generator of economic activities for immediate
upliftment of the fortunes of the State. The State also has to act
as a trustee for the benefit of the general public in relation to the
natural resources so that sustainable development can be
achieved in the long term. Such role of the State is more relevant
today, than, possibly, at any point of time in history with the threat
of climate catastrophe resulting from global warming
looming
large. This Court has highlighted the Public Trust Doctrine in
the case of M.C. Mehta v. Kamal Nath and Others and opined that
the Public Trust Doctrine is part of the law of land. [Para 28][1152-
D-F]
2. In this Court’s opinion, the Guidelines framed on 9th
February 2011 appears to be reasonable and accept the view of
the Standing Committee that uniform Guidelines may not be
possible in respect of each sanctuary or national parks for
maintaining ESZ. This Court is of the opinion, however, that a
minimum width of 1 kilometre ESZ ought to be maintained in
respect of the protected forests, which forms part of the
recommendations of the CEC in relation to Category B protected
forests. This would be the standard formula, subject to changes
in special circumstances. This Court has considered CEC’s
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
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recommendation that the ESZ should be relatable to the area
covered by a protected forest but the Standing Committee’s view
that the area of a protected forest may not always be reasonable
criteria also merits consideration. It was argued before that the
1 km wide “no-development-zone” may not be feasible in all cases
and specific instances were given for Sanjay Gandhi National Park
and Guindy National Park in Mumbai and Chennai metropolis
respectively which have urban activities in very close proximity.
These sanctuaries shall form special cases. [Para 42][1162-B-E]
3. Turning specifically to Jamua Ramgarh Sanctuary, the
first report of the CEC proposed 100 metres as ESZ. In the second
report, however, one kilometre width has been recommended
for all protected forests falling under category ‘B’. Having regard
to its area, the said sanctuary comes in that category. In the order
of this Court passed on 4th August 2006, the same margin, i.e.
one kilometre as buffer zone has been prescribed. In the given
facts concerning the Jamua Ramgarh Sanctuary, in our opinion
the margin of 25 metres as contemplated in the 1994 Mineral
Policy of the State of Rajasthan is grossly inadequate. This Court,
however, treat Jamua Ramgarh sanctuary as a special case for
fixing the ESZ as in the past, the buffer zone varied from 25 metres
to 100 metres. In opinion of this Court, ESZ of 500 metres would
be a reasonable buffer zone, within
which subsisting activities
which does not come within the prohibited list as per the
Guidelines of 9th February 2011 could be carried on. But for
commencing of any new activity which would be otherwise
permissible, the ESZ norm of one kilometre shall be maintained
for Jamua Ramgarh sanctuary. [Para 43][1162-E-H; 1163-A]
4. This Court directed:
(a) 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 9th
February 2011 shall be strictly adhered to. For Jamua Ramgarh
wildlife sanctuary, it shall be 500 metres so far as subsisting
activities are concerned.
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(b) In the event, however, the ESZ is already prescribed as
per law that goes beyond one kilometre buffer zone, the wider
margin as ESZ shall prevail. If such wider buffer zone beyond
one kilometre is proposed under any statutory instrument for a
particular national park or wildlife sanctuary awaiting final decision
in that regard, then till such final decision is taken, the ESZ
covering the area beyond one kilometre as proposed shall be
maintained.
(c) Mining within the national parks and wildlife sanctuaries
shall not be permitted.
(d) 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 9th
February 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.
(e) The minimum width of the ESZ may be diluted in
overwhelming public
interest but for that purpose the State or
Union Territory concerned shall approach the CEC and
MoeEF&CC and both these bodies shall give their respective
opinions/recommendations before this Court. On that basis, this
Court shall pass appropriate order.
(f) In the event the CEC, MoEF&CC, the Standing
Committee of National Board of Wildlife or any other body of
persons or individual having special interest in environmental
issues consider it necessary for maintaining a wider or larger
ESZ in respect of any national park or wildlife sanctuary, such
body or individual shall approach the CEC. In such a situation
the CEC shall be at liberty to examine the need of a wider ESZ in
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
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respect of any national park or wildlife sanctuary in consultation
with all the stakeholders including the State or Union Territory
concerned, MoEF&CC as also the Standing Committee of
National Board of Wildlife and then approach this Court with its
recommendations.
(g) In respect of sanctuaries or national parks for which
the proposal of a State or Union Territory has not been given, the
10 kilometres 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.
(h) The CEC shall quantify the compensation to be
recovered from each miner indulging in mining activities within
the Jamua Ramgarh sanctuary in violation of any statutory
provision or order of this Court. Specific recommendations for
compensatory afforestation, reclamation, clearing overburden
dumping as also compensation in monetary units for degradation
of forest resources shall also be made. A further set of
recommendations concerning confiscation of earth moving
equipments and other machineries lying within or in the periphery
of the said sanctuary shall be made by the CEC.
Recommendations shall be made within a period of four months
before this Court in the form of an
application. This Court shall
consider passing appropriate order upon going through such
application. The exercise concerning such reparation, including
quantifying compensation shall be undertaken upon giving the
mining operator, State and MoEF&CC opportunity of hearing.
(i) In the event there is any subsisting order of any High
Court or any Court subordinate to such High Court covering any
of the issues dealt with by this Court in this order, this order
shall prevail over any such order which may be contrary to these
directions. [Para 44][1163-B-D, G-H; 1164-A-H; 1165-G-H; 1166-
A-C]
Goa Foundation v. Union of India (2011) 15 SCC 79;
M.C. Mehta v. Kamal Nath and Others (1997) 1 SCC
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388 : [1996] 10 Suppl. SCR 12; Goa Foundation v.
Union of India and Others (2014) 6 SCC 590 : [2014]
5 SCR 302 – referred to.
Case Law Reference
[2011] 15 SCC 79
referred to
Para 4
[1996] 10 Suppl. SCR 12
referred to
Para 28
[2014] 5 SCR 302
referred to
Para 30
Civil Original Jurisdiction : I.A. No.1000 of 2003
(Recommendation Of Cec Dated 20.11.2003) With  I.A. Nos.
982-984 of 2003 And I.A. Nos.1026-1028 of 2004 And I.A. Nos. 1123-
1124 of 2004 And I.A. Nos.1197-1199 of 2004 And I.A. Nos. 1210-
1211of 2004 And I.A. Nos.1250-1251 of 2004 And I.A. 
No. 1412 of 2005 And I.A. No. 1512 of 2006 And I.A. No. 1992 of  2007
And I.A. No. 3880 of 2015 And I.A. No. 96949 of 2019 And
I.A. No. 117831 of 2019 And I.A.  No.  65571  of  2021.
Writ Petition (Civil) No. 202 of 1995.
(Under Article 32 of The Constitution of India)
Balbir Singh, ASG, Saurabh Mishra and Nikhil Goel, AAGs, A.D.N.
Rao, Sr. Adv. [A.C.], Ms. Aparajita Singh, Sr. Adv. [A.C.], Nalin Kohli,
Dr. Manish Singhvi, Siddharth Bhatnagar, V. K. Shukla, Sr. Advs.,
Siddhartha Chowdhury, Adv. [A.C.], Rahul Mishra, Amit P. Sahi, D.
Shiva Shankar, Ms. Ananya Khandhelwal, Agrimaa Singh, M R. Chanchal
Kumar Ganguli, Syed Mehdi Imam, T. Harish Kumar, M/S. Mitter &
Mitter Co., M/S. Lawyer S Knit & Co, Mrs. Anil Katiyar, Shuvodeep
Roy, Ankit Roy, Ishaan Borthakur, Ms. Nimisha Menon,. Shri.
Gaichangpou Gangmei, Raj Kishor Choudhary, Umesh Bhagwat, E. C.
Agrawala, Ranjan Mukherjee, Gopal Singh, Jitendra Mohan Sharma,
Ms. C. K. Sucharita, Mrs. B. Sunita Rao, Ejaz Maqbool, M/S. Corporate
Law Group, Himanshu Shekhar, P. N. Gupta, Ms. K. Enatoli Sema,
Amit Kumar Singh, Ms. Chubalemla Chong, Raghvendra Kumar, Anand
Kr. Dubey, Ms. Rajlakshmi Singh, Nishant Verma, Rajiv Kumar Sinha,
Simanta Kumar, Sunil Saraogi, Narendra Kumar, Mahfooz A. Nazki,
Polanki Gowtham, Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy,
K.V. Girish Chowdary, Ms. Rajeswari Mukherjee, Ms. Aruna Gupta,
Ms. Sumita Hazarika, Abhimanyu Tewari, Ms. Eliza Bar, Suhaan Mukerji,
Nikhil Parikshith, Vishal Prasad, Abhishek Manchanda, Sayandeep Pahari,
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND ORS.
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Tanmay Sinha, PLR Chambers & Co., Avijit Mani Tripathi, T.K. Nayak,
Upendra Mishra, P.S. Negi, S.R. Kochhar, Ms. Jyoti Mendiratta, Ms.
Madhu Moolchandani, Mohd. Irshad Hanif, Naresh K. Sharma, Jai
Prakash Pandey, Mrs. Manik Karanjawala, C. L. Sahu, Ms. Abha R.
Sharma, S. R. Setia, Rajat Joseph, Mrs. Nandini Gore, M/S. M. V. Kini
& Associates, Pradeep Kumar Bakshi, Ms. Divya Roy, Radha Shyam
Jena, Ms. Charu Mathur, T. V. George, Neeraj Shekhar, E. M. S. Anam,
Ms. S. Janani, Surya Kant, Amit Anand Tiwari, Mrs. Bina Gupta, M/S.
K J John And Co, S. C. Birla, Ms. K. V. Bharathi Upadhyaya, Punit
Dutt Tyagi, Ratan Kumar Choudhuri, Ms. Binu Tamta, Tejaswi Kumar
Pradhan, Pawan Kumar Sharma, Dharmendra Kumar Sinha, Ms. Sujata
Kurdukar, Shibashish Misra, Mrs. M. Qamaruddin, Ms. Baby Krishnan,
B V Deepak, Sudhir Kumar Gupta, Irshad Ahmad, Rauf Rahim, Rajeev
Singh, Ramesh Babu M. R., Shiva Pujan Singh, K. V. Vijayakumar, Sarad
Kumar Singhania, Hitesh Kumar Sharma, S. K. Rajora, Akhileshwar
Jha, Vivek Sharma, Ms. Meenakshi Kamble, Kuldip Singh, Mrs. Rekha
Pandey, Avijit Bhattacharjee, Ms. Malini Poduval, Mrs. Anjani Aiyagari,
Kamal Mohan Gupta, Rajesh,. Lakshmi Raman Singh, Ashok Mathur,
Gopal Prasad, S. Udaya Kumar Sagar,  Ms. Hemantika Wahi, P. V.
Yogeswaran, Ms. A. Sumathi, Ajit Pudussery, M. C. Dhingra, Ms. Sumita
Hazarika, Abhishek Chaudhary, T. Mahipal, M/S. Arputham Aruna And
Co, Raj Kumar Mehta, K. L. Janjani, Tarun
Johri, Ram Swarup Sharma,
A. Venayagam Balan, Krishnanand Pandeya, Ms. Asha Gopalan Nair,
Rakesh K. Sharma, Mrs. Kanchan Kaur Dhodi, E. C. Vidya Sagar, Ish
Karan Singh Chhabra, Shiv Singh Yadav, Ms. Saifali Mitra, Mrs. Rani
Chhabra, V. Balachandran, P. R. Ramasesh, Rajiv Mehta, Rathin Das,
Sudhir Kulshreshtha, Ms. Pratibha Jain, Prashant Kumar, P.
Parmeswaran, E.R. Kumar, Lalit Chauhan, Abhiram Naik, Ms. Nitika
Pandey for M/S Parekh and Co., H. S. Parihar, Ms. Bina Madhavan, T.
N. Singh, A. N. Arora, G. Prakash, Ms. Sharmila Upadhyay, Sudarsh
Menon, Vikrant Singh Bais, Rajesh Singh, M. Yogesh Kanna, Somesh
Chandra Jha, Adarsh Nain,  Ms. Ruchira Goel, Mrinal Gopal Elker, Ms.
Samridhi Jain, Sunny Choudhury, Ms. Seita Vaidyalingam, Siddhartha
Jha, V.N. Raghupathy, P. K. Manohar, Nishanth Patil, Vinod Sharma,
Arpit Parkash, Sandeep Kumar Jha, D.L.Chidananda, Ms. Suhasini Sen,
Ms. Archana Pathak Dave, Salvador Santosh Rebello, Shyam Gopal,
Sughosh Subramanyam, Neeraj K. Sharma, Harsh Singhal, Ms. Priyanka
Sharma, Manish Tiwari, Prahil Sharma, Ms. Manjula Chaurasia,
Harender Singh, Mukesh Verma, Ms. Indira Bhakar, G. S. Makker,
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Sandeep Dubey, Ambuj Saraswat, James P. Thomas, Ms. Vanshaja
Shukla, Dr. Joseph Aristotle S., Sarojanand Jha, Karan Sharma, Ms.
Precheta Kar, Aditya Sidhra, Nadeem Afroz, M. R. Shamshad, Ms.
Shalini Kaul, Rajeev Kumar Dubey, Ashiwan Mishra, Kamlendra Mishra,
S. Gowthaman, Guntur Pramod Kumar, Shubhranshu Padhi, P. S. Sudheer,
D. K. Garg, Dinesh K. Garg, Dhananjay Garg, Abhishek Garg, Abhinav
Mukerji, Mrs. Pragya Baghel, Dr. Monika Gusain, Harim Om Yaduvanshi,
Nishe Rajen Shonker, Ms. Anu K. Joy, Alim Anvar, Anando Mukherjee,
Gopal Balwant Sathe, Naveen Kumar, Ms. Archana Pathak Dave, Ms.
Deepanwita Priyanka, P. Venkat Reddy, Prashant Tyagi, P. Srinivas
Reddy, M/s. Venkat Palwai Law Associates, Kaushik Choudhury, Sachin
Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Ms. Shwetal Shepal,
Ms. Nupur Sharma, Shobhit Dwivedi, Sanjeev Kumar Mahara, B. K.
Pal, Saket Singh, Ms. Sangeeta Singh, Ms. Somyashree, Ms. Niranjana
Singh, Chirag M. Shroff, Amandeep Mehta, Abhishek Atrey, Ajay
Marwah, Sarvam Ritam Khare, Narendra Kumar, M/S. Cyril Amarchand
Mangaldas Ms. Mayuri Raghuvanshi, Aravindh S., Ms. C. Rubavathi,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
ANIRUDDHA BOSE, J.
These proceedings originate from the Writ Petition under Article
32 of the Constitution of India registered as W.P. (Civil) No. 202 of 1995
(T.N. Godavarman Thirumulpad v. Union of India and Ors.), which is in
the nature of a public interest litigation. It
was instituted for protection of
forest lands in the Nilgiris district of the State of Tamil Nadu. Subsequently,
the scope of that writ petition was enlarged so as to protect such natural
resources throughout the country. The original writ petitioner has since
passed away (on 1st June 2016) but in an order passed on 3rd February
2017, this Court opined that being a public interest litigation, there was
no requirement for bringing on record the legal representatives of the
deceased petitioner. The writ petition, in substance, continued with the
cause title “in Re: T.N. Godavarman Thirumulpad v. Union of India &
Ors”. Various Orders have been passed from time to time in this writ
petition to ensure preservation of forest resources of this country in
balance with economic activities. By an Order of this Court dated 9th
May 2002, a Central Empowered Committee (“CEC”) was directed to
be formed primarily for monitoring implementation of this Court’s orders
and to place the incidents of non-compliance before us. Subsequently,
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by a notification issued on 17th September 2002 by the Ministry of
Environment and Forest in exercise of power under Section 3(3) of the
Environment (Protection) Act, 1986, this committee was constituted under
statutory provisions. CEC has been bringing to the notice of this Court
the steps taken for removal of encroachment, implementation of working
plans, compensatory afforestation, plantation and other conservation
issues. In this order, we shall be mainly dealing with two sets of issues.
The first set relates to mining activities in and around a wildlife sanctuary
in the State of Rajasthan- known as “Jamua Ramgarh” (also spelt as
Jamwa Ramgarh). The second set of issues is wider in scope, and involves
prescribing eco-sensitive zones (ESZ) surrounding the wildlife sanctuaries
and national parks. The subject of mining and other commercial activities
within the wildlife sanctuaries and national parks (protected forests) shall
also be dealt by us in this order. The applications before us require
examination in the perspective of a set of recommendations made by
the CEC and we have been urged by a set of applicants to make certain
modifications of this Court’s earlier directions concerning steps to be
taken for protection of forest resources. The applicants seeking
modifications of our earlier orders include a set of miners, and, in some
cases, the State Governments asking for opening up of the protected
forest areas
and their buffer zones, on which restrictions have been
placed in by our earlier orders, for commercial exploitation. There is
dispute as to what would constitute the buffer zones on ESZ in respect
of national parks and wildlife sanctuaries, as there are divergence of
views among the various stakeholders.
2. The present set of applications arise out of a report of the CEC
dated 20th November 2003. This report specifically pertains to Jamua
Ramgarh wildlife sanctuary. This sanctuary covers an area of about 300
square kilometres. The said report gives a horrific picture of ravaging of
a protected forest mainly by private miners mostly with temporary working
permits obtained from the Governmental agencies. Following
recommendations were made in this report:-
“17……… (i) all mining leases which wholly or partly fall
within the forest area inside the Jamua Ramgarh Sanctuary
and also within the safety zone, should be immediately
cancelled. The mining activity can be allowed to be resumed
only after the new/amended mining leases, after excluding
the forest area and the safety zone are sanctioned by the
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competent authority and the conditions mentioned herein
under are fully complied with;
(ii) presently a safety zone of twenty five meter has been fixed
for Jamua Ramgarh Sanctuary and other sanctuaries in
Rajasthan as against 500 meter for Ranthambhore National
Park in Rajasthan itself. In Madhya Pradesh safety zone of
250 meter for all the 20 forest area has been fixed. The CEC
is of the view that minimum 500 meter safety zone around
National Parks and Sanctuaries is necessary where no mining,
construction and other projects should be allowed. Without a
reasonable safety zone the habitat and wild life in the National
Parks and Sanctuaries are adversely affected. Although
stringent conditions are imposed at the time of the sanction
of the mining leases, none are practically complied with due
to weak enforcement of the laws. The mining causes heavy
disturbance in the area due to blasting, removal of over
burden, chiseling, transportation, flying debris and movement
of a large number of labourers and other persons. The safety
zone of twenty five meter presently prescribed by the Rajasthan
Forest Department is totally in adequate as the rocks torn
apart during blasting can travel much beyond the present
safety zone. However, increasing the safety zone to the desired
level of 500 meter will result in closure of large number of
mines. Taking a holistic overall view of the situation, the CEC
recommends that for the Jamua Ramgarh wild life sanctuary,
for the
“existing” mines the safety zone may be fixed as 100
meter wherein no mining should be permitted. “For new”
mining leases the safety zone may be fixed as 500 meter.
(iii) reclamation and rehabilitation of the area mined inside
the sanctuary should be carried out in a time bound manner
at the cost of the user agency for which a detailed reclamation
and rehabilitation plan along with various items of work, cost
involved and time frame should be prepared and implemented
on priority basis. The plan presently prepared by the State
Government is totally in adequate. It does not provide for
reclamation and rehabilitation of the mining pits at all. No
provision for removal of stones and rocks scattered in the
sanctuary has been made. Intensive plantations and protection
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has not been provided. The revised plan should incorporate
the above and other necessary measures to provide a congenial
habitat for wild life. In the event adequate funds for this
purpose cannot be recovered from the erstwhile mine lease
owners, the same should be made available by the State
Government;
(iv) mining around the sanctuary should be allowed to restart
only after a fool proof mechanism is put in place to ensure
recovery of funds for implementation of reclamation and
rehabilitation plan by the State Government;
(v) exemplary compensation equivalent to the present market
value of the entire mineral removed by the respective mine
owners by mining inside the sanctuary in violation of the F.C.
Act and/or the W. P. Act should be recovered from them on the
basis of the recorded production or the estimated figures
mentioned in the F.C. Act applications. The money so
recovered should be used for protection and development of
the sanctuary to its full potential;
(vi) the left over minerals scattered inside the sanctuary should
be directed to be removed immediately.
(vii) the left over mining equipments such as cranes etc. should
be confiscated and removed outside the sanctuary at the cost
of the erstwhile mine lease holders;
(viii) no mining should be permitted adjoining the sanctuary
till the boundary of the sanctuary is demarcated on the ground
and the boundary pillars are verified with the fixed reference
points;
(ix) disciplinary action should be taken in a time bound
manner against the erring officials in the Mines and the Forest
Departments of the State of Rajasthan and the MoEF for
allowing mining in violation of the F.C. Act, the W. P. Act and/
or this Hon’ble Court’s order;”
(quoted verbatim from paperbook)
3. This Court had converted this report with its set of
recommendations into an Interlocutory Application and was allocated
registration number I.A. 1000 of 2003.
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4. On 20th September 2012, a second report was submitted by the
CEC. The recommendations made in the second report went beyond
the Jamua Ramgarh Sanctuary and dealt with creation of identification
and declaration of safety zones around protected forests all across the
country. The question of having ESZ around the protected forests was
examined by this Court earlier in another Writ Petition [W.P. (Civil) No.
460 of 2004] in Goa Foundation v. Union of India. In the said writ
petition, the following order was passed on 4th December 2006 [reported
in (2011) 15 SCC 791]: -
“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. Two writ petitions have been instituted titled as Goa Foundation
v. Union of India [W.P. (Civil) No.460 of 2004] and Goa Foundation
v. Union of India and Others [W.P. (Civil) No.435 of 2012], in relation
enforcement of various circulars issued for enforcement of environmental
laws and to prevent illegal mining in different States including the State
of Goa. There are certain overlapping issues involved in the present writ
petition and the cases of Goa Foundation (supra). The directions which
we propose to issue in this judgment/order shall take into account the
orders passed in the cases of Goa Foundation (supra) and such directions
shall be supplemental to the orders passed in any of the aforesaid two
writ petitions if our directions passed in this order relate to areas or
subjects covered by any mandate passed in the said two writ petitions.
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6. A set of Guidelines for Declaration of Eco-Sensitive Zones
(ESZ) around National Park and Wildlife Sanctuaries had been formulated
by the Ministry of Environment, Forest and Climate Change (MoEF&CC)
of the Government of India on 9th February 2011 [F. No.1-9/2007 WL –
I (pt)]. These Guidelines deal with the process and procedures to be
adopted for declaring ESZ. In Clauses 3 and 4 of these Guidelines, it has
been stipulated: -
“3. Purpose for declaring Eco-Sensitive Zones:
The purpose of declaring Eco-sensitive Zones around National
Parks and Sanctuaries is to create some kind of “Shock
Absorber” for the Protected Areas. They would also act as a
transition zone from areas of high protection to areas involving
lesser protection. As has been decided by the National Board
for Wildlife, the activities in the Eco-sensitive zones would be
of a regulatory nature rather than prohibitive nature, unless
and otherwise so required.
4. Extent of Eco-Sensitive Zones:
4.1 Many of the existing Protected Areas have already
undergone tremendous development in close vicinity to their
boundaries. Some of the Protected Areas actually lying in the
urban setup (Eg. Guindy National Park, Tamil Nadu, Sanjay
Gandhi National Park, Maharashtra, etc). Therefore, defining
the extent of eco-sensitive zones around Protected Areas will
have to be kept flexible and Protected Area specific. 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.
4.2 In case where sensitive corridors, connectivity and
ecologically important patches, crucial for landscape linkage,
are even beyond 10 kms width, these should be included in
the Eco-sensitive Zone.
4.3 Further, even in context of a particular Protected Area,
the distribution of an area of Eco-sensitive Zone and the extent
of regulation may not be uniform all around and it could be
of variable width and extent.”
(quoted verbatim from paperbook)
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7. In Clauses 6 and 7 of the said Guidelines, it has been specified:-
“6. The procedure to be adopted:
6.1 As has been indicated in the forgoing paras, the basic
aim is to regulate certain activities around National Park and
Wildlife Sanctuary so as to minimize the negative impacts of
such activities on the fragile ecosystem encompassing the
Protected Area. As a first step towards achieving this goal, it
is a pre-requisite that an inventory of the different land use
patterns and the different types of activities, types and number
of industries operating around each of the Protected Area
(National Parks, Sanctuaries) as well as important Corridors
be made. The inventory could be done by the concerned Range
Officers, who can take a stock of activities within 10 km of
his range.
6.2 For the above purpose, a small committee comprising the
concerned Wildlife Warden, an Ecologist, an official from the
Local Self Government and an official of the Revenue
Department of the concerned area, could be formed. The said
committee could suggest the:
(i) Extent of eco-sensitive zones for the Protected Area being
considered.
(ii) The requirement of such a zone to act as a shock absorber.
(iii) To suggest the best methods for management of the eco-
sensitive zones, so suggested.
(iv) To suggest broad based thematic activities to be included
in the Master Plan for the region.
6.3 Based on the above, the Chief Wildlife Warden could group
the activities under the following
categories (an indicative
list of such activities is attached as ANNEXURE-1):-
(i) Prohibited
(ii) Restricted with safeguards.
(iii) Permissible
6.4 Once the proposal for Eco-sensitive zones has been
finalized, the same may be forwarded to the Ministry of
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Environment and Forests for further processing and
notification. Here, it may be noted that, the State/ Union
Territory Forest Department could forward the proposals to
the respective authority in the State Government with copy to
the Ministry of Environment and Forests, as and when the
proposals (even if it is for single Protected Area) are complete.
An indicative list of details that need to be submitted along
with the proposals is at ANNEXURE-2.
6.5 It is to mention here that in cases where the boundary of
a Protected Area abuts the boundary of another State/Union
Territory where it does not form part of any Protected Area, it
shall be the endeavour of both the State/ Union Territory
Governments to have a mutual consultation and decide upon
the width of the ecosensitive zone around the Protected Area
in question.
6.6 The State Government should endeavour to convey a very
strong message to the public that ESZ are not meant to hamper
their day to day activities, but instead, is meant to protect the
precious forests/Protected Areas in their locality from any
negative impact, and also to refine the environment around
the Protected Areas. A copy of the notification of the Sultanpur
Eco-sensitive Zone issued by the Ministry is attached herewith
at ANNEXURE-3 for reference and guidance.
7. These guidelines are indicative in nature and the State /
Union Territory Governments may use these as basic
framework to develop
specific guidelines applicable in the
context of their National Parks, Wildlife Sanctuaries,
important corridors, etc. with a view to minimizing and
preferably eliminating any negative impact on protected
areas.”
(quoted verbatim from paperbook)
8. As per the said Guidelines, commercial mining, setting up of
saw mills and industries causing pollution, commercial use of firewood,
establishment of major hydro-electric projects, use of production of any
hazardous substances, undertaking activities related to tourism like over-
flying the national park area by any aircraft, hot-air balloons, discharge
of effluents and solid waste in natural water bodies or terrestrial areas
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have been proposed to be made prohibited activities. Certain other
activities having lesser environment damaging potential have been
proposed to be regulated.
9. By an order passed on 4th August 2006, this Court had, inter-
alia, restrained grant of temporary working permits for mining within
safety zones around any national park/wildlife sanctuary declared under
Sections 18, 26-A or 35 of the Wild Life (Protection) Act, 1972. As an
interim measure, direction was issued to maintain one kilometre safety
zone, which was subject to the orders that may be made in the present
IA (I.A. No.1000 of 2003).
10. The second report of the CEC dated 20th September 2012
makes the following recommendations as regards identification and
declaration of ESZ. This report entitled “Note regarding safety zones
(Eco-sensitive zones) around National Parks and Wildlife
Sanctuaries” makes the following recommendations:-
“10. After considering that during the last ten years no
significant progress has been made regarding identification
and declaration of Safety Zones around protected areas and
considering the matter in its totality, an implementable scheme
has been prepared by the CEC and which has been dealt with
in subsequent paragraphs.
11. For the purpose of identification and declaration of the
Safety Zones around National Parks/Wildlife Sanctuaries
(hereinafter referred to as protected areas), the protected
areas based on their areas, are classified into four categories:
i)
CATEGORY-A - the protected areas having an area of 500
sq. km. or more. The total number of such protected areas is
73 and their total area is about 1,01,389 sq. km (63.44 % of
total area of protected areas);
ii) CATEGORY-B - the protected areas having an area
between 200 sq. km. to 500 sq. km. The total number of such
protected areas is 115 and their total area is about 38942 sq.
km. (24.37 % of total area of protected areas);
iii) CATEGORY-C - the protected areas having an area
between 100 sq. km. to 200 sq. km. The total number of such
protected areas is 85 and their total area is about 12,066 sq.
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
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km (about 7.55 % of total area of protected areas); and
iv) CATEGORY-D - the protected areas having an area up to
100 sq. km. The total number of such protected areas is 344
and their total area is about 7,422 sq. km (about 4.65 % of
total area of all protected areas).
12. Wherever two or more protected areas are contiguous to
each other, such protected areas will be placed in the
appropriate category based on the sum total of their areas
(and not on the basis of area of individual protected area).
The details of some of the contiguous protected areas are
given below:
i) Corbett National Park (520 sq. km.) and Sonanadi
Sanctuary (301 sq. km) - total area is 821 sq. km and
therefore both will fall in Category-A;
ii) Gir National Park (258 sq. km.) and Gir Sanctuary
(1,153 sq. km.) - total area is 1,411 sq. km. and therefore
both will fall in Category-A;
iii) Periyar National Park (350 sq. km.) and Periyar
Sanctuary (427 sq. km.) - total area is 777 sq. km. and
therefore both will fall in Category-A;
iv) Satpura National Park (585 sq. km.), Bori Sanctuary
(485 sq. km.) and Pachmarhi Sanctuary (417 sq. km.) -
total area is 1488 sq. km. and therefore all three will fall in
Category-A;
iv) Valmiki National Park (335 sq. km.) and Valmiki
Sanctuary (545 sq. km.) - total area is 880 sq . km. and
therefore both will fall in Category-A;
vi) Tadoba National Park (116 sq. km.) and Andhari Wildlife
Sanctuary (509 sq. km.) -
total area is 625 sq. km. and
therefore both will fall in Category-A; and
vii) Sariska National Park (273 sq. km.) and Sariska
Sanctuary (219 sq. km.) - total area is 492 sq. km. and
therefore both will fall in Category-B;
13. The Safety Zone, in respect of protected areas falling in
‘Category-A and Category-B, may comprise of all the areas
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including non-forest areas falling within a distance of two
kilometers and one kilometer respectively from the boundaries
of the protected area. Such distances, in respect of protected
areas falling within Category-C and Category-D, may be kept
at 500 meter and 100 meter respectively.
14. The grant/renewal of mining leases (excluding for
collection of boulders, gravel and sand from river beds),
setting up of hazardous industries, brick kilns, wood based
industries (except MDF/Particle Boards Plants) will be treated
as prohibited activities within the Safety Zone (eco-sensitive
zones). The activities such as setting up of industries (other
than those included in the list of prohibited activities), hotels
and restaurants including resorts, commercial helicopter
services, hydel projects, irrigations projects, canals, laying
of transmission lines and distribution lines above 33 KV, roads
of more than five meter width and collection of boulders,
gravel and sand from the river beds will be treated as regulated
activities and which will be permissible only after obtaining
environment clearance and clearance of the Standing
Committee, National Board for Wildlife. All other activities
which are not prescribed as prohibited activities or regulated
activities will be treated as permissible activities.
15. The concerned State/UT will be at liberty to shift a
protected area from a lower category to higher category (say
from Category-C to Category-B) after considering
the
importance of the protected area on account of:
i) presence of flagship species/endangered species such as
Tiger, Lion, Elephant, Rhino, Snow Leopard, Red Panda,
Hangul, Musk deer, Great Indian Bustard, Lion Tailed
Macaque, floricans;
ii) fragile eco-system such as Western Ghats, North Eastern
States, areas having high altitude flora and fauna, rain forest,
mangroves, marine eco-system;
iii) World Heritage sites; and
iv) Wetland eco-systems
16. The concerned State/UT Governments may after detailed
examination of the status of habitation, existing industries
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and other activities and other relevant factors, and, if found
desirable and in public interest forward the proposal(s) for
shifting a protected area from a higher category to a lower
category. They may also forward the proposal(s) for exclusion
of the areas of cities falling within the Safety Zone. The MoEF
thereafter will examine such proposals and place such
proposals before the Standing Committee of the National
Board for Wildlife for its consideration. The proposals cleared
by the Standing Committee of the NBWL will be placed before
this Hon’ble Court for seeking its permission. It is only after
obtaining the permission of this Hon’ble Court that a protected
area may be shifted from a higher category to a lower category.
17. The Safety Zones (eco-sensitive zones) around National
Parks and Wildlife Sanctuaries will be in addition to the
following eco-sensitive zones notified by the MoEF (and by
other notifications, if any):
i) S.O. 20(E), (6/1/1989) - Prohibiting industries on Murud-
Janijira, District Raigadh, Maharashtra;
ii) S.O. 102(E), (1/2/1989) - Restricting location of industries,
mining & other activities in Doon Valley (UP);
iii) S.0. 416(E), (20/6/1991) - Dahanu Taluka, District Thane
(Maharashtra) to declare as Ecologically Fragile Area,
amended 1999;
iv) S.0.319(E), (7/5/1992) - Restricting certain activities
causing environmental degradation at Aravalli Range;
v) S.0. 481 (E), (5/7/1996) - No
Development Zone at
Numaligarh, East of Kaziranga;
vi) S.0. 884(E), (19/12/1996) - Dahanu Taluka Environment
Protection Authority, 1996, amended 2001 ;
vii) S.0. 350(E), (13/5/1998) - Order constituting the Taj
Trapezium Zone Pollution (Prevent and Control) Authority;
viii) S.0. 825(E), (17.9.1998) - Pachmarhi Region as an Eco-
Sensitive Zone;
ix) S.0. 52(E), (17/1/2001) Mahabaleswar Panchgani Region
as an Eco-Sensitive Zone;
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x) S.0. 133 (E), (4/2/2003) - Matheran and surrounding
region as an Eco-Sensitive Zone
1. S.0. 83 (E), (16/01/2004) - Amendments to S.O. 133(E)
dated 4/2/2003;
xi) S.0. 1545(E), (25/06/2009), Mount Abu as Eco-Sensitive
Zone.
xii) S.0. 1260(E), (31/05/2012) - Girnar Reserve Forest as
Eco-Sensitive Zone.
18. It is respectfully submitted that the above proposals are
submitted in the back-drop of inordinate delay that has taken
place in the identification and declaration of Safety Zones
around National Parks/ Wildlife Sanctuaries and so as to
ensure that the process of such declarations do not remain
pending indefinitely.”
(quoted verbatim from paperbook)
11. To the said report, another supplementary note dated 18th
January 2013 has been submitted. This report is also in connection with
notifying the ESZ around protected forests. The following passage from
this report is relevant: -
“4. After considering the inordinate delay which has already
taken place in notifying the safety zone around National
Parks/ Wildlife Sanctuaries and considering the ground
situation as it exists, the CEC is of the considered view that it
may be appropriate that an early decision is taken regarding
the safety zones around National Park/ Sanctuaries. The
proposal submitted by the CEC while ensuring that effective
restrictions and regulations are put in place immediately and
implemented in an objective manner also, after detailed
examination, provides for adequate flexibility to
modify the
areas of the safety zones.”
(quoted verbatim from paperbook)
12. In connection with the I.A. No.1000 of 2003, several other
applications have been filed, mainly by miners concerning the Jamua
Ramgarh wildlife sanctuary. The order passed on 4th August 2006 by
this Court [reported in (2010) 13 SCC 740] in relation to grant of
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temporary working permits was made subjecting them to compliance of
certain pre conditions. These preconditions, inter-alia, were: -
“19. (i) TWPs can only be granted for the renewal of mining
leases, and not where the lease is being granted for the first
time to the applicant user agency;
(ii) The mine is not located inside any national park/sanctuary
notified under Sections 18, 26-A or 35 of the Wild Life
(Protection) Act, 1972;
(iii) The grant of TWP would not result in any mining activity
within the safety zone around such areas referred to in
Precondition (ii) above (as an interim measure, one kilometre
safety zone shall be maintained subject to the orders that may
be made in IA No. 1000 regarding Jamua Ramgarh
Sanctuary);
(iv) The user agency who has broken up the area of the mine
(in respect of which TWP is being sought) has or had the
requisite environmental clearances and at no time prior to
the grant of the TWP was any mining being carried on by the
user agency in relation to the mine in question, in violation of
the provisions of the Forest (Conservation) Act (for short “the
FC Act”). In cases involving violation of the FC Act, a formal
decision on merit should be taken under the FC Act after
considering the gravity of the violation. However, the grant
of a TWP may be considered where past violations have been
regularised by the Ministry of Environment and Forests (for
short “MoEF”) by the grant of an
approval under the FC Act
with retrospective effect;
(v) The conditions attached to the approval under the FC Act
for the grant of the mining lease (or the renewal of the mining
lease) have been fulfilled, particularly those in respect of (but
not limited to) compensatory afforestation, reclamation plan
and overburden dumping on the specified site;
(vi) The user agency has, within the stipulated time, already
filed a proposal in conformity with the Forest (Conservation)
Rules, 1980 for seeking an approval under the FC Act along
with the complete details as are required to be furnished. An
application for the grant of TWP in favour of the user
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agencies, who have either not filed a proper proposal and/or
have not provided complete information, particularly in
respect of (but not limited to) compensatory afforestation,
phased reclamation plan, felling of trees, details of minerals
extracted in the past, etc. should not be entertained;
(vii) A TWP shall be granted only limited to working in the
area broken up legally and during the validity of the lease.
No TWP can be granted in respect of, or extending to either
unbroken area or the areas which have been broken after
the expiry of the mining lease or have been broken in violation
of the FC Act or any other law for the time being in force;
(viii) In no circumstances can the duration of a TWP extend
beyond the period of one year. Where an application for the
grant of permission under the FC Act is not disposed of during
the currency of TWP, the applicant, on the strength of the
same TWP, may continue to operate for a period not exceeding
three months unless specific orders are obtained from this
Court; and
(ix) A valid lease under the MMRD Act exists [including by
way of a deemed extension in terms of Rule 24-A(6) of the
Mineral Concession Rules] in respect of the area of the TWP.”
13. We shall now briefly refer to the individual I.A.s filed in
connection with I.A No. 1000 of 2003:-
(i) Applicants in I.A. Nos. 982-984 of 2003, 1026-1028 of 2004,
1123-1124 of 2004, 1197-1199 of 2004, 1210-1211 of 2004, 1250-
1251 of 2004 and 1512 of 2006 are firms
who claim to be mining
lease holders or their representative bodies seeking impleadment
in I.A. No. 1000 of 2003 as also other reliefs. All these applicants
(barring the applicant in I.A. No.1512, i.e. M/s. Andhi Marbles)
seek impleadment in the present proceeding. All of them also seek
certain direction that might allow them to carry on mining activities.
Among them, M/s. Jaipur Mineral Development Syndical Private
Limited (I.A. Nos.1123-1124 of 2004) has taken a plea that Section
66(4) of the Wild Life (Protection) Act, 1972 was not applicable
to it and in that regard a pending Writ Petition instituted by them in
the High Court of Rajasthan (Writ Petition No. 570 of 2002) has
been cited. In the said application permission has been sought for
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restarting the mining activities in non-forest area. Directions have
also been asked to prevent initiation of penal proceedings against
the applicant under the Wild Life (Protection) Act, 1972.
(ii) The applicant in I.A. Nos.982-984 of 2003 is one Smt. Magan
Devi Meena. Her case is that she was allotted mining area which
is outside the reserve forest/sanctuary in Thali village and falls
outside Pillar no. 407 (the demarcation point of forest/sanctuary
area). She essentially questions legality of the letter dated 30th
May 2003 issued by the Mining Engineer Jaipur, office of Mining
Engineer & Geology Department, Jaipur, Rajasthan stopping mining
operation in the disputed area of Jamua Ramgarh Wildlife
Sanctuary and pending completion of demarcation.
(iii) In I.A. Nos. 1210-1211 of 2004, the applicant is Madhu
Agarwal. Her prayer is for fresh demarcation of the Pillar no.1 to
Pillar no.428 around the said sanctuary and she has also sought
directions on the State Government to release the excess land
from the reserve forest area after fresh demarcation. The applicant
in this case has been involved in mining of dolomite in Jamua
Ramgarh Tehsil in the area known as Rayanwala of Digota Forest
Block 61.
(iv) I.A. Nos. 1250-1251 of 2004 has been taken out by Bhushan
Sharma, successor in interest of one Sharda Devi, who was the
original allottee of mining around the Jamua Ramgarh Wildlife
Sanctuary. It is the case of the
applicant that his operations have
been stopped by letter dated 30th May 2003 issued by the Mining
Engineer Jaipur, office of Mining Engineer & Geology Department,
Jaipur, Rajasthan in the disputed area of Jamua Ramgarh
Sanctuary. Survey had revealed that mining activities were being
carried on inside the wildlife sanctuary. The report of CEC dated
27th May 2003 found number of mines operating around or in two
villages, Sankotda and Thali, which were within the sanctuary
and the CEC also found that the earlier finding of a Committee
could not be taken as conclusive proof that the area involved was
a non-forest land and fell outside the sanctuary. The State of
Rajasthan, however, has taken a stand in their affidavit affirmed
on 15th April 2004 that delineation and demarcation of the
boundaries have already been done.
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(v) In I.A. No. 1512 of 2006, M/s. Andhi Marbles Pvt. Ltd are
the applicants. They have prayed for permission to resume mining
operations excluding the land to the extent of 100 metres from the
forest/sanctuary.
(vi) In I.A. No. 3880 of 2015, the applicant is the State of
Rajasthan. Prayer has been made in this application for appropriate
direction for issuing the ESZ of wildlife sanctuaries and national
parks and to keep in abeyance a letter issued by CEC on 21st
October 2014 by which one kilometre distance has been required
to be maintained in respect of mining activities from the boundaries
of the National Parks and Wildlife Sanctuaries. Certain other
clarifications have also been sought as regards the order of this
Court passed on 4th August 2006 and we shall deal with the said
issues later in this judgment. The State of Rajasthan has filed
several other affidavits and the common theme of these affidavits
is for lifting the restrictions and permit mining activities in and
around the protected forests to energise the economy of the State.
The State seeks permission for subsisting mining activities to
operate outside the protected forests and ESZ. It is also their
stand that most of the mining areas in Jamua Ramgarh Sanctuary
were sanctioned prior to coming into operation of Forest
(Conservation) Act, 1980 and declaration of the said sanctuary
on 31st May 1982.
14. Apart from mining activities in the Jamua Ramgarh Sanctuary,
applications have also been
taken out in relation to the CEC reports as
the said reports deal with protected forests all across the country and
contemplate uniform ESZ norms for their protection. On 14th July 2003,
the recommendations of CEC dated 27th December 2002 were accepted
by this Court in I.A. No.887 of 2003. The said application related to
wood based industries in the State of Maharashtra, and, inter-alia,
concerned 64 saw mills. That application was disposed of with a direction
for consideration of their cases within a period of two months and if they
were found eligible, their applications were directed to be sent to the
CEC. The latter was to submit a report and the State of Maharashtra
was directed to abide by the aforesaid recommendations.
(i) In I.A. No.1412 of 2005, the applicants are Maharashtra Timber
Laghu Udyog Mahasangha alongwith the Poona Timber Merchant
(owners of saw mills in the State of Maharashtra). They want
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clarification of the order of this Court passed in I.A. No.887 of
2003 for consideration of the cases of 64 saw mill owners for
grant for grant of license as per notification dated 16th July 1981
issued by the State of Maharashtra amending the Bombay Forest
Rules, 1942. This Court had directed in the aforesaid order (of
14th July 2003) that the cases of the applicants may be examined
by the State Government within a period of two months and if
they are found eligible, their applications could be sent to the CEC
who might submit a report to this Court. In the present application
the applicants want grant of license considering condition no.3 of
the Government’s Notification dated 16th July 1981.
(ii) Applicants in I.A. No. 117831 of 2019 are Maharashtra Timber
Laghu Udyog Mahasangha alongwith the Poona Timber Merchant
(64 saw mills owners) in connection with grant of licenses for
operating saw mills. In the present order, we are confining our
examination of proceedings arising out of I.A. No.1000 of 2003.
As such, the aforesaid applications ought to be listed independently
before the appropriate Bench.
15. The applicant in I.A. No. 96949 of 2019 is the State of
Maharashtra. On 11th December 2018, this Court had passed an order
in respect of 21 National Parks and Wildlife Sanctuaries, which included
Thane Creek Flamingo Sanctuary. This order, inter-alia, records and
directs: -
“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.
List the matters at the end of February, 2019.
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In the meanwhile, interim order to continue.”
(quoted verbatim from paperbook)
The prayer of the State of Maharashtra in this application is to the
following effect: -
“A) This Hon’ble Court be pleased to modify its order dated
11.12.2018 directing that an area of 10 kilometers around
Thane Creek Flamingo Sanctuary situated in the State of
Maharashtra be declared as Eco Sensitive Zone by the
Ministry of Environment and Forest; and
B) That this Hon’ble Court be pleased to direct that the area
of 0-3.5 kilometers as proposed in the proposal submitted by
the State Government on 22.05.2019 to the Ministry of
Environment and Forest be declared as Eco Sensitive Zone in
respect of the Thane Creek Flamingo Sanctuary; and
C) Pass any other order and or directions as this Hon’ble
Court may deem fit and proper in the facts and circumstances
of the present case.”
(quoted verbatim from paperbook)
16. The other applications in respect of the same sanctuary is by
an association of real estate developers, CREDAI-MCHI registered as
I.A. No.65571 of 2021. The main prayer in I.A. No.65571 of 2021 is:-
“(a) Modify the order dated 11.12.2018 passed by this Hon’ble
Court in I.A. No. 1000 in W.P. (C) No. 202 of 1995 inasmuch
as it relates to the Thane Creek Flamingo Sanctuary and direct
that the Eco Sensitive Zone around the said Sanctuary shall
be in terms of the proposal dated 10.03.2021 submitted by
the State Government and the Draft Notification dated
08.04.2021 published
by the Ministry of Environment &
Forests, Government of India; and / or
(b) Pass such other order(s) as this Hon’ble Court may deem
fit and proper in the circumstances of the case.”
(quoted verbatim from paperbook)
17. The order on 11th December 2018 was passed by this Court
as the proposals in respect of 21 National Parks and Wildlife Sanctuaries
had not yet been received by the Ministry of Environment, Forest and
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
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Climate Change. Recommendations of CEC as regards maintaining ESZ
were made in relation to wildlife sanctuaries and national parks on 20th
September 2012. As per the order passed on 11th December 2018, the
proposal of the State Government was to be made before the MoEF&CC
and it appears that a draft notification dated 8th April 2021 concerning
Thane Creek Flamingo Sanctuary has already been published by the
MoEF&CC. Let the MoEF&CC take final decision in relation to such
draft notification as per the provisions of law. Such decision, if already
taken, may be placed before this Court one week after reopening of the
Court on conclusion of the summer vacation. If such decision is not
taken, then the decision may be taken as per law within a period of six
weeks and be placed before us within the same timeframe. This Court
shall consider passing appropriate direction thereafter, upon going through
such decision.
18. In I.A. No.1992 of 2007, the M.P. State Mining Corporation
Limited has applied for the following reliefs:-
“i. grant permission to file present Application for
Clarification;
ii. clarify that the directions as contained in interim Order
dated 4.8.2006 of this Hon’ble Court in I.A. Nos.1413, 1414,
1454 in I.A. Nos. 1413, 1426, 1428, 1440, 1439, 1441 , 1444-
1445, 1459 and 1460 in Writ Petition (C) No.202 of 1995
(T.N. Godavarman Thirumulpad Vs. UOI & Ors. Pertains only
to mining activity in Temporary Working
Permission (TWP)
cases requiring approval under Forest Conservation Act, 1980
and that the said directions do not apply to the regular quarry
lease on a revenue land particularly when such quarry lease
is granted to the State owned Mining Corporation by the State
Government itself.”
(quoted verbatim from paperbook)
19. So far as this application is concerned, we repeat that in this
order, we are dealing with the issues arising out of IA No.1000 of 2003.
The scope of this application relates to mining and other activities within
the national parks and wildlife sanctuaries and maintaining ESZ around
individual protected forests. The reliefs asked for by the MP State Mining
Corporation Limited in IA No. 1992 of 2007 do not come within the
ambit of the subject we are addressing in this judgment/order. This
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application of the Mining Corporation company is in connection with
temporary working permits in non-forest areas. This application will also
have to be addressed separately.
20. There are two affidavits of M/s. Andhi Marbles Pvt. Ltd
affirmed on 19th February 2004 and 29th July 2004 pertaining to Jamua
Ramgarh Sanctuary. Complaint against said M/s. Andhi Marbles is in
relation to mining leases granted and operated by them. In the CEC
report which has been transformed into I.A. No.1000 of 2003, it has
been recorded that they were granted mining leases in violation of the
Forest (Conservation) Act, 1980 as well as the Wild Life (Protection)
Act, 1972. They had continued working on the temporary permits after
the order of this Court dated 12th December 1996. In the Order of this
Court reported in [(1997) 2 SCC 267] it has been inter-alia observed:-
“4. The Forest Conservation Act, 1980 was enacted with a
view to check further deforestation which ultimately results
in ecological imbalance; and therefore, the provisions made
therein for the conservation of forests and for matters
connected therewith, must apply to all forests irrespective of
the nature of ownership or classification thereof. The word
“forest” must be understood according to its dictionary
meaning. This description covers all statutorily recognised
forests, whether designated as reserved, protected or otherwise
for the purpose of Section 2(i) of the Forest Conservation
Act. The term “forest
land”, occurring in Section 2, will not
only include “forest” as understood in the dictionary sense,
but also any area recorded as forest in the Government record
irrespective of the ownership. This is how it has to be
understood for the purpose of Section 2 of the Act. The
provisions enacted in the Forest Conservation Act, 1980 for
the conservation of forests and the matters connected therewith
must apply clearly to all forests so understood irrespective of
the ownership or classification thereof. This aspect has been
made abundantly clear in the decisions of this Court in Ambica
Quarry Works v. State of Gujarat [(1987) 1 SCC 213], Rural
Litigation and Entitlement Kendra v. State of U.P. [1989 Supp
(1) SCC 504] and recently in the order dated 29-11-1996
(Supreme Court Monitoring Committee v. Mussoorie
Dehradun Development Authority [ WP (C) No 749 of 1995
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND ORS. [ANIRUDDHA BOSE, J.]
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decided on 29-11-1996] ). The earlier decision of this Court
in State of Bihar v. Banshi Ram Modi [(1985) 3 SCC 643] has,
therefore, to be understood in the light of these subsequent
decisions. We consider it necessary to reiterate this settled
position emerging from the decisions of this Court to dispel
the doubt, if any, in the perception of any State Government
or authority. This has become necessary also because of the
stand taken on behalf of the State of Rajasthan, even at this
late stage, relating to permissions granted for mining in such
area which is clearly contrary to the decisions of this Court.
It is reasonable to assume that any State Government which
has failed to appreciate the correct position in law so far, will
forthwith correct its stance and take the necessary remedial
measures without any further delay.”
21. The CEC’s observation in I.A. No.1000 of 2003 is that no
mining activity was permissible inside the sanctuary as per this Court’s
Order dated 14th February 2000 and the temporary working permits
were granted in violation of the applicable statutory provisions and
guidelines as the area involved fell inside the sanctuary. M/s. Andhi
Marbles Pvt. Ltd. have taken a defence that their mining activities were
in terms of the temporary working permit issued and in compliance with
the specified conditions laid down by the MoEF&CC. A point has also
been taken that the limits of the sanctuary was not
notified and no
notification under Section 26A of the Wild Life (Protection) Act, 1972
was issued to declare the said area as sanctuary. They have also taken
a point that the mining lease covering forest has been deleted from the
lease document and they seek to operate two quarries, on non-forest
land beyond the safety zone of 25 metres, which has been specified as
part of the Mineral Policy, 1994 of the State of Rajasthan. They also, in
effect, seek resumption of mining activities in the area beyond 25 metres
from the forest boundary.
22. As regards the Guidelines of 9th February 2011, which has
been referred to in the affidavit of MoEF&CC affirmed/verified by Dr.
Subrata Bose, Scientist ‘F’ Ministry of Environment, Forest and Climate
Change, Government of India, stand of M/s. Andhi Marbles Pvt. Ltd. is
that no consensus has been reached as regards notifying the areas within
10 kilometres of the boundaries of National Parks and Wildlife Sanctuaries
as ESZ.
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23. In the affidavit filed on behalf of MoEF&CC, which we have
referred to in the preceding paragraph, it has been stated that the
Guidelines for Declaration of ESZ have been notified by the Ministry of
Environment, Forest and Climate Change, Government of India. For the
purpose of formulation of ESZ in relation of individual protected forest
area, Para 6 of the said Guidelines has been brought to our notice. A
detailed hierarchy has been prescribed for declaration of ESZ. Referring
to the case of the Goa Foundation (W.P. (C) No.435/2012), it has
been stated in this affidavit that mining activity is prohibited within a
distance of 1 kilometre or the specified ESZ, whichever is higher.
24. On the pleas of M/s. Andhi Marbles Pvt. Ltd. and another
leaseholder, Munni Devi, in subsequent affidavit verified on 29th April
2004 the MoEF&CC had justified granting of working permit to the said
firms.
25. The next affidavit of MoEF&CC was verified on 14th
September 2005 and this affidavit deals with fixing of buffer zones for
activities outside sanctuaries/forests. In this affidavit, it has been admitted
that with respect to the details given in the earlier affidavit dated 29th
April 2004 the decision taken by the Ministry at that point of time while
granting temporary working permission on already broken up area in
Jamua Ramgarh could not incorporate all factual details and thus might
not have been strictly compatible with the principles of the environmental
conservation. It has further been stated in this affidavit that the Ministry
directed the State Government to ensure phased closure of mines.
26. Altogether seven affidavits dated 15th April 2004, 17th
September 2004, 9th December 2004, 13th October 2006, 10th May 2007,
12th August 2008 and 1st November 2012 filed by the State of Rajasthan
are on record before us. The stand of the State of Rajasthan as reflected
in these affidavits are primarily in relation to the creation of ESZ. It is
their case that the decision of 25 metres safety zone in relation to Jamua
Ramgarh sanctuary has been conceived by the State and the State
Government has also taken a decision that in the vicinity of sanctuaries,
national parks and reserve forests, mining activities should not be
undertaken within 25 metres. As regards other forest areas, their position
is that mining ought to be undertaken in the immediate vicinity of the
forest areas. They have expressed difficulties over taking over or
acquisition of land around any sanctuary or other protected forest and
their ESZ without proper proceeding. As regards mining operations within
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
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sanctuary area of Jamua Ramgarh, it has been stated that all mining
activities within the sanctuary have been stopped. In their affidavit dated
12th August 2008, it has been disclosed by the State that mining activities
in non-forest areas within 100 metres of the Jamua Ramgarh sanctuary
has been closed. Their plea is for allowing mining activity in non-forest
areas within protected forests and beyond the ESZ of 100 metres for
economic activities, in the interest of local population as also the State’s
economy.
27. It has also been highlighted by the State that 25 sanctuaries, 2
national parks have been declared by the State comprising of a total
area of 9,07,070 hectares and an area of 23,29,659 hectares of area as
forest area or deemed forest is already existing as eco-sensitive/eco
fragile/buffer/safety zones in that State within which no non-forest
activities is allowed without proper permission under the Forest
(Conservation) Act, 1980. The State of Rajasthan has opposed the
proposal for declaring 10 kilometres beyond the boundary of sanctuaries
and national parks being declared as ESZ.
28.  The role of the State cannot be confined to that of a facilitator
or generator of economic activities for immediate upliftment of the
fortunes of the State. The State also has to act as a trustee for the
benefit of the general public in relation to the natural resources so that
sustainable development can be achieved in the
long term. Such role of
the State is more relevant today, than, possibly, at any point of time in
history with the threat of climate catastrophe resulting from global
warming looming large. This Court has highlighted the Public Trust
Doctrine in the case of M.C. Mehta v. Kamal Nath and Others
[(1997) 1 SCC 388] and opined that the Public Trust Doctrine is part of
the law of land. In Paragraph 25 of thesaid judgment, as reported,
thisdoctrine has been explained with reference to writings of Joseph L.
Sax, Professor of Law, University of Michigan, the proponent of Modern
Public Trust Doctrine:-
“25. The Public Trust Doctrine primarily rests on the principle
that certain resources like air, sea, waters and the forests have
such a great importance to the people as a whole that it would
be wholly unjustified to make them a subject of private
ownership. The said resources being a gift of nature, they
should be made freely available to everyone irrespective of
the status in life. The doctrine enjoins upon the Government
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to protect the resources for the enjoyment of the general public
rather than to permit their use for private ownership or
commercial purposes. According to Professor Sax the Public
Trust Doctrine imposes the following restrictions on
governmental authority:
“Three types of restrictions on governmental authority are
often thought to be imposed by the public trust: first, the
property subject to the trust must not only be used for a public
purpose, but it must be held available for use by the general
public; second, the property may not be sold, even for a fair
cash equivalent; and third the property must be maintained
for particular types of uses.”
29. Reliance has been placed on the said doctrine in earlier orders
of this Court in this very writ petition, passed on 30th October 2002, 26th
September 2005 and 13th February 2012.So far as the views of the State
of Rajasthan is concerned, as reflected in their affidavits and written
notes, their consideration for justifying mining in Jamua Ramgarh and its
periphery primarily stems from the prospect of immediate economic gains
and their role as a trustee of natural resources of the land has been
largely overlooked.
30. The Ministry of Environment, Forest and Climate Change
(MoEF&CC) is against having a uniform ESZ for all national parks and
reserved forests. Their view is that the ESZ area ought to be site-specific.
Our attention has been drawn to the Comprehensive Guidelines
formulated, to which we have
referred earlier in this Order. In the case
of Goa Foundation v. Union of India and Others [(2014) 6 SCC
590], the order passed in this proceeding [IA 1000 of 2003] on 4th August
2006 has also been referred to and relied upon. Affidavits have been
filed by the State of Goa affirmed on 19th September 2012 and 31st
October 2012. Main concern of the State of Goa is over creation of ESZ
of 10 kilometres from the boundaries of protected forests as buffer zone
and it is also contended on their behalf that such buffer zones should be
site-specific. It is highlighted that in the State of Goa vegetative aerial
cover of Goa is more than 59.99% (as per the Indian State Forest Report
of 2011) and protected forest areas constitute over 20% of the total
geographic area. On this basis, they seek appropriate directions. It has
also been brought to our notice that notifications have been issued in
respect of several sanctuaries stipulating the ESZ boundaries. Written
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
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submissions have also been filed by Goa Foundation [the petitioners in
W.P. (C) 460/2004] and W.P. (C) 435/2012 in which it has been urged
that minimum extent of ESZ ought to be as per the CEC recommendations
incorporating therein the modifications/suggestions by the learned Amicus
Curiae. So far as State of Goa is concerned, the scope of mining activities
is being dealt with in the case of Goa Foundation (supra). In the present
I.A., we would not address issues specific to the said case. But the
directives we shall make, as we have already indicated, which are not
covered by the issues involved in the case of Goa Foundation (supra)
shall apply to the protected forest and adjacent areas.
31. On the point of buffer zone for activities outside the sanctuaries/
national parks, the National Board of Wildlife in its 21st meeting held on
21st January 2002 adopted National Wildlife Conservation Strategy.
Paragraph 9 of the Strategy document concerns the buffer areas around
the national parks and sanctuaries. It has been recorded therein:-
“Lands falling within 10 kms of the boundaries of National
Parks and Sanctuaries should be notified as Eco-fragile Zones
under Section 3(v) of the Environment (Protection) Act and
Rule 5, Sub-rule 5(viii) and (x) of the Environment (Protection)
Rules.”
(quoted verbatim from paperbook)
But it does not appear from the said affidavit that said proposal of
notifying 10 kilometres as
boundaries of the national parks and sanctuaries
as Eco-fragile zone was finalised.
32. The MoEF&CC essentially has argued in favour of having
ESZ to be site-specific and for that purpose they have invited proposals
from individual State Government in the aforesaid Guidelines. In cases
where such proposals have not come, they want 10 kilometres periphery
of protected forests to be preserved as ESZ. As regards activities
permissible within the buffer zone, certain works have been proposed to
be regulated and certain activities to be permitted within the ESZ. This
has been stipulated in Annexure-I to the Guidelines. We have already
referred to the prohibited activities. Among the regulated activities, as
per these Guidelines are:-
(i)
Felling of trees with permission from appropriate authority.
(ii)
Establishment of hotels and resort as per approved master
plan, which takes care of habitats allowing no restriction on
movement of wild animals.
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(iii)
Drastic change in agricultural systems.
(iv)
Commercial use of natural water resources including ground
water harvesting as per approved master plan, which takes
care of habitats allowing no restriction on movement of wild
animals.
(v)
Erection of electrical cables with stress on promoting
underground cabling.
(vi)
Fencing of premises of hotels and lodges.
(vii)
Use of polythene bags by shopkeepers.
(viii) Widening of roads with proper environmental impact
assessment.
(ix)
Movement of vehicular traffic at night for commercial
purposes.
(x)
Introduction of exotic species.
(xi)
Protection of hill slopes and river banks.
(xii)
Regulation of any form of air and vehicular pollution.
(xiii) Putting up of sign boards and hoardings.
Within permissible activities fall:-
(i)
Ongoing agricultural and horticulture practices by local
communities.
(ii)
Rain water harvesting
(iii)
Organic farming
(iv)
Use of renewable energy sources
(v)
Adoption of green technology for all activities.
33. In the affidavit of the Standing Committee of National Board
of Wildlife, the views of the non-official members of the Standing
Committee have been placed on record, which essentially contemplates
continuation of the 10 kilometres buffer zone. Order passed by this Court
on 4th December 2006 in the case of Goa Foundation (W.P. (C) 460/
2004) proposes following such a course if there is delay in site-specific
preparation of ESZ for individual States/Union Territories. On the
aspect
of having site-specific ESZ under the Environment (Protection) Act,
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1986, the view of the National Board of Wildlife, appears to be unanimous.
It is their opinion that some protected areas, because of their smaller
size, may require larger safety zone around it.
34. We shall deal first with the question of impleadment of firms
and individuals who had some kind of permission for carrying on mining
activities in Jamua Ramgarh sanctuary. The Interlocutory Applications
which we are dealing with arise out of a public interest litigation and
there is no doubt that orders passed in litigation of this nature could
affect a large body of persons who may not be included in the array of
parties at the time of institution of the proceeding. To an extent, litigations
of this nature assume an In-rem character. Ideally, for such a public
interest litigation, the procedure contemplated in Rule VIII of Order 1 of
the Code of Civil Procedure, 1908 could be followed to the extent of
issue of public notice or general intimation to public in such mode as the
Court may consider fit and proper, having regard to the nature and scope
of the proceeding. But in cases where such a course has not been taken,
persons affected or likely to be affected by any order passed in the
litigation would be entitled to join or participate in the proceeding. Thus,
the impleadment prayers in I.A. No. 984 of 2003, I.A. No. 1026 of 2004,
I.A. No. 1123 of 2004, I.A. No. 1197 of 2004 and I.A. No. 1251 of 2004
are allowed.
35.
The approach of the Court in dealing with complaints of
environmental degradation has been laid down by this very Bench in this
Writ Petition itself in an order passed on 9th May 2022 in connection
with another set of applications. In this Order, it has been observed and
held:-
“15. Adherence to the principle of sustainable development
is a constitutional requirement. While applying the principle
of sustainable development one must bear in mind that
development which meets the needs of the present without
compromising the ability of the future generations to meet
their own needs. Therefore, Courts are required to balance
development needs with the protection of the environment and
ecology. It is the duty of the State under our Constitution to
devise and implement a coherent and coordinated programme
to meet its obligation of sustainable development based on
inter-generational equity. While economic development should
not be allowed to take place at the cost of ecology or by
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causing widespread environment destruction and violation;
at the same time, the necessity to preserve ecology and
environment should not hamper economic and other
developments. Both development and environment must go
hand in hand, in other words, there should not be development
at the cost of environment and vice versa, but there should be
development while taking due care and ensuring the protection
of environment.
16. In Vellore Citizens’ Welfare Forum v. Union of India, this
Court held that the ‘Precautionary Principle’ is an essential
feature of the principle of ‘Sustainable Development’. It went
on to explain the precautionary principle in the following
terms: -
(i) Environmental measures — by the State Government and
the statutory authorities — must anticipate, prevent and attack
the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage,
lack of scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation.
(iii) The “onus of proof” is on the actor or the developer/
industrialist to show that his action is environmentally benign.
17. The principle of precaution involves the anticipation of
environmental harm and taking measures to avoid it or to
choose the least environmentally harmful activity. It is based
on scientific uncertainty. Environmental protection should not
only aim at protecting health, property and economic interest
but also protect the
environment for its own sake.
Precautionary duties must not only be triggered by the
suspicion of concrete danger but also by justified concern or
risk potential.
18. A situation may arise where there may be irreparable
damage to the environment after an activity is allowed to go
ahead and if it is stopped, there may be irreparable damage
to economic interest. This Court held that in case of a doubt,
protection of environment would have precedence over the
economic interest. It was further held that precautionary
principle requires anticipatory action to be taken to prevent
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harm and that harm can be prevented even on a reasonable
suspicion. Further, this Court emphasises in the said judgment
that it is not always necessary that there should be direct
evidence of harm to the environment.”
While dealing with the applications in the present set of
proceedings, we shall follow the same principles.
36. We shall now examine the prayers of the applicants for
continuing their mining activities within sanctuary. This relief has been
asked for by Smt. Magan Devi Meena (IA Nos. 982-984 of 2003), M/s.
Agarwal Marbles Centre Pvt. Ltd. & Ors. (IA Nos. 1026-1028 of 2004),
M/s. Jaipur Mineral Development Syndicate Private Limited (IA Nos.
1123-1124 of 2004), Federation of Mining Associations of Rajasthan (IA
Nos. 1197-1199 of 2004), Bhushan Sharma (IA Nos. 1250-1251 of 2004)
and M/s. Andhi Marbles Pvt Ltd. (IA No. 1512 of 2006). We must point
out here that in the affidavit of the State of Rajasthan, it has been stated
that they had formulated a policy of maintaining a distance of 25 metre
from the vicinity of important forest areas like game sanctuary, reserved
forest, mining activities to be prohibited. In other forest areas, mining
could be undertaken in the immediate vicinity of the forest area as per
the policy. This has been stated in the affidavit of the State of Rajasthan
filed on 9th December 2004 and such a stand appears to have had been
taken from the Mineral Policy of 1994. It, however,
appears that a new
Mineral Policy had been adopted by the State of Rajasthan in 2015.
37. There are also pleas for permitting some of the miners to
continue mining activities within 25 metre zone conceived by the State
of Rajasthan as Buffer Zone. In three applications, I.A. Nos.1123-1124
of 2004, I.A.Nos.1197-1199 of 2004 and I.A.Nos.1210-1211 of 2004,
M/s. Jaipur Mineral Development Syndicate Pvt. Ltd., Federation of
Mining Association of Rajasthan and Smt. Madhu Agarwalhave taken a
point that there was improper declaration of Jamua Ramgarh as a
sanctuary. The notification made under Section 18 of the Wild Life
(Protection) Act, 1972 bearing No. F.11(19) Raj.-8/81 Jaipur dated 31st
May 1982 has been annexed to the I.A. Nos. 982-984 of 2003 the
applicant therein, being Magan Devi Meena. Initially, there was declaration
of the said sanctuary as reserved forest under the Rajasthan Forest Act,
1953. Thereafter, the notification of 31st May 1982 came into operation
under the Wild Life (Protection) Act, 1972.
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38. In I.A. No.1000 of 2003, it has been disclosed that the
settlement of rights were completed by the District Collector Jaipur under
Sections 19 to 26 of the Wild Life (Protection) Act, 1972. So far as
Section 26A is concerned, which deals with declaration of area as
sanctuary the said provision was incorporated in the statute with effect
from 2nd October 1991. That amendment came by way of Act 44 of
1991. After amendment, Section 18 of the Act stipulates:-
“18. Declaration of sanctuary:—
(1) The State Government may, by notification, declare its
intention to constitute any area other than an area comprised
within any reserve forest or the territorial waters as a
sanctuary if it considers that such area is of adequate
ecological, faunal, floral, geomorphological, natural or
zoological significance, for the purpose of protecting,
propagating or developing wild life or its environment.
(2) The notification referred to in sub-section (1) shall specify,
as nearly as possible, the situation and limits of such area.
Explanation.—For the purposes of this section it shall be
sufficient to describe the area by roads, rivers, ridges or other
well-known or readily intelligible boundaries.”
Section 26A of the Act, which, again, was introduced by Act 44
of 1991 contemplates further declaration after compliance of certain
formalities. No other amendment has been brought to our notice. Section
18 of the Wild Life (Protection) Act, 1972 as it originally stood, reads:-
“18. (1) The State Government may, by notification, declare
any area to be a sanctuary if it considers that such area is of
adequate ecological, faunal, floral, geomorphological,
natural or zoological significance, for the purpose of
protecting, propagating or developing wild life or its
environment.
(2) The notification referred to in sub-section (1) shall specify,
as nearly as possible, the situation and limits of such area.
Explanation.—For the purposes of this section, it shall be
sufficient to describe the area by roads, rivers, ridges or other
well-known or readily intelligible boundaries.”
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39. The declaration was made by the State of Rajasthan in 1982
and we do not find any flaw in such declaration. The amended provisions,
thus, could not apply to the Jamua Ramgarh Wildlife Sanctuary. The
plea taken that it did not have the status of a sanctuary because no
declaration was there under Section 26A of the Wild Life (Protection)
Act, 1972 is without any basis. We shall proceed in this order on the
basis that Jamua Ramgarh is a subsisting sanctuary.
40. We have already indicated that CEC in I.A. No.1000 of 2003
has given a dreadful account of the condition of the sanctuary, ravaged
by mining activities. CEC in the same document has also outlined the
importance of the said sanctuary. These would appear from paragraphs
4 and 5 of the said I.A which read:-
“4. In stark contrast to the above during the site visits to the
Jamua Ramgarh Sanctuary the CEC came across a horrible
and unbelievable picture of devastated eco - system due to
indiscriminate mining activity in blatant violation of the Forest
(Conservation) Act, Wild Life (Protection) Act and even this
Hon’ble Court’s orders. The sanctuary is littered with
hundreds of deep mining pits, randomly scattered “over
burdens”, scores of cranes and mined boulders and stones
scattered all over the place. It is rare to see such a destruction
even in a non forest area, least of all inside a sanctuary. It is
a horror story that has to be seen to be believed. This is
a site
where all the laws and conventions that govern the natural
world have been violated for commercial gains. Instead of
being managed as a wild life sanctuary, it appears to have
been managed as a mining sanctuary. In the present form it
may be more appropriate to rename the area as “Jamua
Ramgarh Wild Life Graveyard”. A photographic report is
appended hereto at
ANNEXURE-A graphically showing the ground situation.
5. The forest of Jamua Ramgarh forms the critical catchment
area of the lake which is the main source of water supply to
the city of Jaipur. Notwithstanding this 69 mining leases were
sanctioned from time to time in Jamua Ramgarh after
enactment of the Forest (Conservation) Act 1980 i.e.
25.10.1980. Each and every mine was sanctioned in violation
of the provisions of the F.C. Act as well as
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the Wild Life (Protection) Act. No perceptible attempt was made
to regulate the mines as per the provisions of the F.C. Act and
the W.P. Act. No valid and satisfactory explanation was given
by the State Government for allowing the mining leases to
operate for years together except that it was a common
practice to allow mining leases in the forest area / sanctuary
without obtaining specific approvals under the F.C.Act or the
W.P.Act. The details of these mines are given in ANNEXURE-
B.”
(quoted verbatim from paperbook)
41. In their affidavits, the State of Rajasthan had referred to the
Mining Policy of 1994 which stipulated 25 metres to be safety zone
around the periphery of Jamua Ramgarh Wildlife Sanctuary but
subsequent thereto the Mining Policy of 2015 for the State of Rajasthan
has come and they do not seem to have any specified safety zone.
Moreover, in view of the order of this Court passed on 4th August 2006,
1 kilometre safety zone has been directed to be maintained as regards
Jamua Ramgarh Wildlife Sanctuary. Beyond Jamua Ramgarh Wildlife
Sanctuary, CEC itself has given its view on eco sensitive zone in their
report dated 20th September 2012. The recommendations have been
quoted in the earlier part of this order. In the affidavit of Standing
Committee of National Board of Wildlife filed on 26th November 2012,
the views of said Committee was expressed and the Committee was of
unanimous opinion that each State ought to delineate the outer limits of
ESZ on a site-specific, case by case basis, keeping in view the ecological
imperatives and the grounds realities of the protected area. It was also
the view of the said Committee that expert opinion and scientific inputs
ought to be obtained from individuals and institutions in that regard. In
substance the view of the Committee is that there should not be uniform
ESZ. We have also referred to the Guidelines dated 9th February 2011
which gives a detailed procedure for evolving ESZ and identification of
activities that could be carried on in such zones. The order of this Court
in the case of Goa Foundation [W.P. (C) No.460 of 2004]passed on
4th December 2006 also contemplated issue of direction for maintaining
a 10 kilometre wide safety zone from the boundaries in respect of
sanctuaries and national parks as there was lack of response from the
States and Union territories in relation to queries on various aspects in
respect of wildlife conservation. The proposal for having an ESZ of 10
kms from the boundaries of the national parks and wildlife sanctuaries
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was originally mooted on 21st January 2002 in the meeting of the Indian
Board for Wildlife, as it appears from the order passed by this Court in
the case of Goa Foundation [W.P. (C) No.460 of 2004] on 30th January
2006. We have to collate the views of these experts’ bodies including
the CEC, who have been assisting this Court through the different stages
of this litigation.
42. In our opinion, the Guidelines framed on 9th February 2011
appears to be reasonable and we accept the view of the Standing
Committee that uniform Guidelines may not be possible in respect of
each sanctuary or national parks for maintaining ESZ. We are of the
opinion, however, that a minimum width of 1 kilometre ESZ ought to be
maintained in respect of the protected forests, which forms part of the
recommendations of the CEC in relation to Category B protected forests.
This would be the standard formula, subject to changes in special
circumstances. We have considered CEC’s recommendation that the
ESZ should be relatable to the area covered by a protected forest but
the Standing Committee’s view that the area of a protected forest may
not always be a reasonable criteria also merits consideration. It was
argued before us that the 1 km wide “no-development-zone” may not be
feasible in all cases and specific instances were given for Sanjay Gandhi
National Park and Guindy National Park in Mumbai and Chennai
metropolis respectively which have urban
activities in very close proximity.
These sanctuaries shall form special cases.
43. Turning specifically to Jamua Ramgarh Sanctuary, the first
report of the CEC proposed 100 metres as ESZ. In the second report,
however, one kilometre width has been recommended for all protected
forests falling under category ‘B’. Having regard to its area, the said
sanctuary comes in that category. In the order of this Court passed on
4th August 2006, the same margin, i.e. one kilometre as buffer zone has
been prescribed. In the given facts concerning the Jamua Ramgarh
Sanctuary, in our opinion the margin of 25 metres as contemplated in the
1994 Mineral Policy of the State of Rajasthan is grossly inadequate. We,
however, treat Jamua Ramgarh sanctuary as a special case for fixing
the ESZ as in the past, the buffer zone varied from 25 metres to 100
metres. In our opinion, ESZ of 500 metres would be a reasonable buffer
zone, within which subsisting activities which does not come within the
prohibited list as per the Guidelines of 9th February 2011 could be carried
on. But for commencing of any new activity which would be otherwise
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permissible, the ESZ norm of one kilometre shall be maintained for Jamua
Ramgarh sanctuary.
44. We accordingly direct:-
(a)
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 9th February 2011 shall be strictly adhered
to. For Jamua Ramgarh wildlife sanctuary, it shall be 500
metres so far as subsisting activities are concerned.
(b)
In the event, however, the ESZ is already prescribed as per
law that goes beyond one kilometre buffer zone, the wider
margin as ESZ shall prevail. If such wider buffer zone
beyond one kilometre is proposed under any statutory
instrument for a particular national park or wildlife sanctuary
awaiting final decision in that regard, then till such final
decision is taken, the ESZ covering the area beyond one
kilometre as proposed shall be maintained.
(c)
The Principal Chief Conservator of Forests as also the Home
Secretary of each State and Union Territory shall remain
responsible for proper compliance of the said Guidelines as
regards nature of use within the ESZ of all national parks
and sanctuaries within a particular State or Union Territory.
The Principal Chief Conservator of Forests for each State
and Union Territory shall also arrange to make a list of
subsisting structures and other relevant details within the
respective ESZs
forthwith and a report shall be furnished
before this Court by the Principal Chief Conservator of
Forests of each State and Union Territory within a period
of three months. For this purpose, such authority shall be
entitled to take assistance of any governmental agency for
satellite imaging or photography using drones.
(d)
Mining within the national parks and wildlife sanctuaries
shall not be permitted.
(e)
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
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does not come within the ambit of prohibited activities as
per the 9th February 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.
(f)
The minimum width of the ESZ may be diluted in
overwhelming public interest but for that purpose the State
or Union Territory concerned shall approach the CEC and
MoEF&CC and both these bodies shall give their respective
opinions/recommendations before this Court. On that basis,
this Court shall pass appropriate order.
(g)
In the event the CEC, MoEF&CC, the Standing Committee
of National Board of Wildlife or any other body of persons
or individual having special interest in environmental issues
consider it necessary for maintaining a wider or larger ESZ
in respect of any national park or wildlife sanctuary, such
body or individual shall approach the CEC. In such a
situation the CEC shall be at liberty to examine the need of
a wider ESZ in
respect of any national park or wildlife
sanctuary in consultation with all the stakeholders including
the State or Union Territory concerned, MoEF&CC as also
the Standing Committee of National Board of Wildlife and
then approach this Court with its recommendations.
(h)
In respect of sanctuaries or national parks for which the
proposal of a State or Union Territory has not been given,
the 10 kilometres 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.
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(i)
I.A. No. 1412 of 2005 and I.A.No.117831 of 2019 do not
relate to the issues involved in I.A. No.1000 of 2003. These
applications may be placed before the appropriate Bench
to be heard independently.
(j)
For the same reason, I.A. No.1992 of 2007 shall also be
dealt with independently by the appropriate Bench and no
order is being passed concerning this application at this
stage.
(k)
The application of the State of Rajasthan registered as I.A.
No.3880 of 2015 relates to clarification of an order passed
in the case of Goa Foundation (W.P.(C) No.460 of 2004).
Let this application be placed before the Bench taking up
the case of Goa Foundation.
(l)
I.A.No.96949 of 2019 and I.A.No.65571 of 2021 are
disposed of with directions that the MoEF&CC as also CEC
shall proceed to take a decision in regard to the draft proposal
for ESZ made by the State of Maharashtra to the extent of
0-3.89 kilometres and the MoEF&CC shall take final
decision on that basis within a period of three months, if
said decision has not already been taken.
(m)
Prayers for impleadment of the applicants in I.A. Nos. 984
of 2003, 1026 of 2004, 1123 of 2004, 1197 of 2004 and 1251
of 2004 are allowed. Necessary amendments may be
carried out in these regards.
(n)
For the reasons already given, however, prayers of the
applicants in I.A. Nos.982 of 2003, 1027 of 2004, 1124 of
2004, 1198 of 2004, 1210 of 2004, 1250 of 2004 and 1512 of
2006 are rejected.
(o)
The CEC shall quantify the compensation
to be recovered
from each miner indulging in mining activities within the
Jamua Ramgarh sanctuary in violation of any statutory
provision or order of this Court. Specific recommendations
for compensatory afforestation, reclamation, clearing
overburden dumping as also compensation in monetary units
for degradation of forest resources shall also be made. A
further set of recommendations concerning confiscation of
earth moving equipments and other machineries lying within
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or in the periphery of the said sanctuary shall be made by
the CEC. Recommendations shall be made within a period
of four months before this Court in the form of an
application. This Court shall consider passing appropriate
order upon going through such application. The exercise
concerning such reparation, including quantifying
compensation shall be undertaken upon giving the mining
operator, State and MoEF&CC opportunity of hearing.
(p)
In the event there is any subsisting order of any High Court
or any Court subordinate to such High Court covering any
of the issues dealt with by this Court in this order, this order
shall prevail over any such order which may be contrary to
these directions.
(q)
We have already observed that there are certain overlapping
issues involved in this writ petition and the cases of Goa
Foundation (Writ Petition (C) No.460 of 2004) and (Writ
Petition (C) No.435 of 2012). We request the Hon’ble the
Chief Justice of India to consider having the present writ
petition i.e. In Re:T.N. Godavarman Thirumulpad v.
Union of India & Ors., W.P.(C) No.460 of 2004 (Goa
Foundation v. Union of India) as also W.P. (C) No.435
of 2012 (Goa Foundation v. Union of India & Ors.) be
heard together before the same Bench. The registry may
place this order before the Hon’ble the Chief Justice of
India.
45. This order disposes of I.A. No.1000 of 2003 in the above
terms.
46. Pending application(s), if any, shall
stand disposed of.
Ankit Gyan
I.A. disposed of
(Assisted by : Adnan Khan, LCRA)