HOSPITALITY ASSOCIATION OF MUDUMALAI versus IN DEFENCE OF ENVIRONMENT AND ANIMALS AND ORS. ETC.
[2020] 10 S.C.R. 273, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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HOSPITALITY ASSOCIATION OF MUDUMALAI
v.
IN DEFENCE OF ENVIRONMENT AND
ANIMALS AND ORS. ETC.
(Civil Appeal No. 3438-3439 of 2020)
OCTOBER 14, 2020
[S. A BOBDE, CJI, S. ABDUL NAZEER AND
SANJIV KHANNA, JJ.]
Wildlife (Protection) Act, 1972– Elephant Corridor notified
in Sigur Plateau of Nilgiris District – Resort owners/other private
land owners directed to vacate the lands falling within the notified
elephant corridor – Notification challenged – Upheld by High Court
– On appeal, held: State Government empowered to take measures
to protect forests and wildlife falling within its territory in light of
Entries 17A, 17B in the concurrent list and its power under the
Wildlife Act – State Government empowered to protect the habitats
situated on the appellants’ land by notifying an elephant corridor
thereupon – Environmental Law – Constitution of India – Concurrent
List- Entries 17A, 17B.
Environmental Law – Precautionary Principle – Held:
Precautionary Principle makes it mandatory for the State
Government to anticipate, prevent and attack the causes of
environmental degradation.
Disposing of the appeals, the Court
HELD: 1.1 The Wildlife Trust of India terms elephants as
a “keystone species” because their nomadic behavior is
immensely important to the environment. Herds of roaming
elephants play several important roles in the ecosystem:
(i) Landscape architects: Elephants create clearings in the
forest as they move about, preventing the
overgrowth of certain
plant species and allowing space for the regeneration of others,
which in turn provide sustenance to other herbivorous animals.
(ii) Seed dispersal: Elephants eat plants, fruits and seeds,
releasing the seeds when they defecate in other places as they
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travel. This allows for the distribution of various plant species,
which benefits biodiversity.
(iii) Nutrition: Elephant dung provides nourishment to
plants and animals and acts as a breeding ground for insects.
(iv) Food chain: Apex predators like tigers will sometimes
hunt young elephants. Further, elephant carcasses provide food
for other animals.
(v) The umbrella effect: By preserving a large area for
elephants to roam freely, one provides a suitable habitat for many
other animal and plant species of an ecosystem.
Elephant corridors allow elephants to continue their
nomadic mode of survival, despite shrinking forest cover, by
facilitating travel between distinct forest habitats. Corridors are
narrow and linear patches of forest which establish and facilitate
connectivity across habitats. In the context of today’s world,
where habitat fragmentation has become increasingly common,
these corridors play a crucial role in sustaining wildlife by reducing
the impact of habitat isolations. In their absence, elephants would
be unable to move freely, which would in turn affect many other
animal species and the ecosystem balance of several wild habitats
would be unalterably upset. It would also eventually lead to the
local extinction of elephants, a species which is widely revered
in our country and across the world. To secure wild elephants’
future, it is essential that their uninterrupted movement between
different
forest habitats is ensured. For this, elephant corridors
must be protected. [Para 34][292-A-G]
1.2 Legal intervention in preservation of these corridors
has been necessitated because wildlife corridors are threatened
by various social, economic and anthropogenic factors, as noted
above. Commercial activities such as running of private resorts
and construction of new buildings with barbed and electric fences
within elephant corridors pose a serious threat of fragmentation
and destruction of habitats. The long-term survival of the species
depends on maintaining viable habitats and connecting corridors
which maintain variance in the species’ gene pool and avoid other
risks associated with habitat fragmentation and isolation of
species. Overtime, several environmental legislations including
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the Indian Forest Act, 1927 and the Wildlife Act have been enacted
to provide for the protection of forests and wild animals, with a
view to ensuring ecological balance and preserving natural
habitats including such corridors. The corridor in the Sigur Plateau
of Tamil Nadu connects the Western and the Eastern Ghats and
sustains elephant populations and their genetic diversity. The
Sigur Plateau has the Nilgiri Hills on its south-western side and
the Moyar River Valley on its north-eastern side. Depending on
the monsoon, the elephants migrate in search of food and water
and during the course of their migration, they have to cross the
Sigur Plateau. This migratory path is considered to be very crucial
as it connects several contiguous forest areas forming the Nilgiri
Biosphere Reserve in the states of Tamil Nadu, Karnataka and
Kerala, the largest protected forest area in India. [Paras 35-
37][292-H; 293-A-C; 294-B-C]
State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 :
[1988] 3 Suppl. SCR 455 – relied on.
1.3 Conflicting maps of this corridor were presented before
the Madras High Court, which thus directed the State
Government to choose between: (i) the elephant corridors
identified in the Wildlife Trust of India’s book titled “Right of
Passage – Elephant Corridors of India” which were referred to
by the Central Government in its letter dated 11.08.2006 to the
State Government; or (ii) the single elephant corridor identified
by the Expert Committee
appointed by the High Court. As per
the aforesaid book titled “Right of Passage”, the following 4
corridors lie in the Sigur Plateau region: (i) Avarahalla – Sigur,
(ii) Kalhatti – Sigur at Glencorin, (iii) Moyar – Avarahalla and (iv)
Kalmalai – Singara and Avarahalla. The Expert Committee
examined all the elephant corridors in the area and identified a
single elephant corridor comprising of various elephant corridors
in the Sigur Plateau region. The State Government, vide the
impugned G.O., notified this single elephant corridor, along the
lines of the recommendations made by the Expert Committee.
[Para 38][294-D-F]
1.4 The State Government is empowered to take measures
to protect forests and wildlife falling within its territory in light of
Entries 17A ‘Forest’ and 17B ‘Protection of wild animals and
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birds’ in the concurrent list and the power of the State Government
under the Wildlife Act to notify Sanctuaries and other protected
areas. It is an admitted position that the land of the appellants
has also been notified as private forest in 1991 under the Tamil
Nadu Preservation of Private Forests Act, 1949, which prohibits
cutting of trees in private forests. Given that the classification of
the appellants’ land as private forest land is not in dispute here,
there is no difficulty in holding that the State Government was
empowered to protect the habitats situated on the appellants’
land by notifying an elephant corridor thereupon. [Para 39][294-
H; 295-A-C]
1.5 Furthermore, since the impugned decision of the High
Court, the Ministry of Environment, Forest and Climate Change
vide its Notification S.O. 4498(E) dated 13.12.2019 has declared
the entire area in question and adjoining areas around the
Mudumalai Tiger Reserve as an Eco-Sensitive Zone. Under this
Notification, the State Government of Tamil Nadu has been
expressly directed to regulate land use generally, as well
commercial establishment of hotels/resorts specifically, in the
Eco-Sensitive Zone so established. The “Precautionary Principle”
has been accepted as a part of the law of the land. Articles 21, 47,
48A and 51A(g) of the Constitution of India give a clear mandate
to the State to protect and improve the environment and to
safeguard the forests and
wild life of the country. It is the duty of
every citizen of India to protect and improve the natural
environment including forests and wild life and to have compassion
for living creatures. The Precautionary Principle makes it
mandatory for the State Government to anticipate, prevent and
attack the causes of environmental degradation. In order to
protect the elephant population in the Sigur Plateau region, it
was necessary and appropriate for the State Government to limit
commercial activity in the areas falling within the elephant
corridor. [Para 40][295-D-G]
M.C. Mehta v. Union of India and Ors. (1997) 3 SCC
715 : [1996] 7 Suppl. SCR 465 – relied on.
1.6 The second limb of the appellants’ submissions
comprises of questions about the scientific accuracy of the Expert
Committee’s Report and contentions that the dimensions as well
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as the location of the single corridor identified therein are at odds
with authoritative scientific publications. It has been argued by
the appellants that their resorts and other establishments do not
fall within the historic corridors identified in these publications.
These assertions were dealt with by the High Court which held
that there was material on record to show presence of elephants
as well as a past incident of human-elephant conflict, which
resulted in the death of a French tourist, in the region where the
appellants’ resorts are located. The High Court also held that
any absence of elephants from the areas surrounding the
appellants’ resorts was, in fact, due to the construction activities
of the appellants whereby access of the elephants has been
restricted through erection of electric fencing. The Court sees
no reason to interfere with the above factual findings of the High
Court and also do not find fault in the State Government’s adoption
of the recommendations of the High Court-appointed Expert
Committee, through the impugned G.O. [Para 41][296-A-D]
1.7 The appellants have contended that there has been
substantial variance between the acreage recommended for
acquisition by the Expert Committee Report and the acreage in
the impugned G.O. It is further alleged that the acreage in the
newspaper advertisement by the State Government inviting
objections to notification of the corridor is also different from the
acreage in the impugned G.O.
As all the objections received
pursuant to the said newspaper advertisement were rejected by
the State Government and since the impugned G.O. purported to
adopt the recommendations of the Expert Committee, the
appellants allege that the said variance in acreage is arbitrary
and unreasonable. It has also been alleged that the District
Collector, Nilgiris has acted arbitrarily in sealing their resorts
after rejecting the documents submitted by the appellant resorts
purporting to show approvals and title. Similarly, it has been
alleged that the District Collector went beyond the scope of this
Court’s order dated 24.12.2018 wherein immediate removal of
electric fences and barbed wire was directed. It is the appellants’
case that non-electric fences as well as fences beyond the notified
elephant corridor area were removed by the District Collector.
It is just and proper to hold an inquiry to establish the veracity of
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the above factual objections of the appellants. Therefore, a 3-
member Inquiry Committee is appointed to decide the individual
objections of the appellants and any other persons claiming to be
aggrieved by the actions of the District Collector, Nilgiris
pursuant to the impugned G.O. and as recorded before the Court
through her Plan of Action Report and her twin Action Taken
Reports, as also the allegations regarding arbitrary variance in
acreage of the elephant corridor under the impugned G.O.  [Paras
42, 43][296-E-H; 297-A-D]
T. N. Godavaraman Thirumulkpad v. Union of India
(1997) 2 SCC 267 : [1996] 9 Suppl. SCR 982 – referred
to.
Case Law Reference
[1988] 3 Suppl. SCR 455
relied on
Para 36
[1996] 9 Suppl. SCR 982
referred to
Para 39
[1996] 7 Suppl. SCR 465
relied on
Para 40
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3438-
3439 of 2020.
From the Judgment and Order dated 07.04.2011 of the High Court
of Judicature at Madras in Writ Petition Nos. 10098 of 2008 and 23939
of 2010.
With
Civil Appeal Nos. 3437, 3440, 3442-3443, 3444, 3445, 3447, 3448-
3449, 3450-51, 3446, 3452, 3453, 3454, 3455, 3456, 3457, 3458, 3459,
3460, 3461, 3462, 3463, 3464, 3465, 3466, 3467, 3468, 3469, 3476, 3477,
3470, 3471-3472, 3473, 3475, 3474 Of 2020.
Jayant Muthuraj, Sr. Adv. (AAG), Raju Ramachandran, Sr. Adv.,
Rahul Shyam Bhandari, Senthil Jagadeesan, Sridhar Potaraju, Ms. Shiwani
Tushir, Vishnu Tulashi Menon, Trideep Pais, Ms. Sanya
Kumar, N.K.
Verma, Ms. Anjana Chandrashekar, Ms. Diksha Rai, P. Soma Sundaram,
Naveen Kumar, Vikas Mehta, Zulfiker Ali P. S, V. Balachandran,
Kaustubh Shukla, Abhay Singh, S. Ravi Shankar, Ms.Yamunah Nachair,
Shashi Bhushan Kumar, Deepayan Mandal, Janmejay Giridhar, Shakil
Ahmed Syed, K. V. Mohan, K.V. Balakrishnan, M.F. Philip, Ms. Purnima
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Krishna, Sudarsh Menon, Mrs. Lalita Kaushik, Ms. N. Annapoorani,
G. Balaji, M. Yogesh Kanna, Rajarajeswaran, Ms. Aparna Bhat, Gurmeet
Singh Makker, B. Balaji, B. Krishna Prasad, Vinodh Kanna B., K. V.
Vijayakumar, P. A. Noor Muhamed, Annam D. N. Rao, B. Krishna
Prasad, Ms. Mayuri Raghuvanshi, Advs. for the appearing parties.
Caveator-in-person.
The Judgment of the Court was delivered by
S. ABDUL NAZEER, J.
1. Leave granted.
2. The appellants in these appeals have assailed the final judgment
and order dated 07.04.2011 of the High Court of Judicature at Madras,
passed in Writ Petition (PIL) No. 10098 of 2008 along with several
other writ petitions including Review Application No. 131 of 2010 and
Writ Petition No.23939 of 2010 filed by the Hospitality Association of
Mudumalai. The High Court by the impugned judgment has upheld the
validity of the Tamil Nadu Government Notification G.O.(Ms.) No.125,
dated 31.08.2010 which had notified an ‘Elephant Corridor’ in the Sigur
Plateau of Nilgiris District and has further directed resort owners and
other private land owners to vacate and hand over the vacant possession
of the lands falling within the notified elephant corridor to the District
Collector, Nilgiris within three months from the date of the judgment.
3. The appellant in Civil Appeal Nos._________2020 (arising
out of SLP (C) Nos.17313-17314 of 2011), is the Hospitality Association
of Mudumalai, registered under the Tamil Nadu Societies Registration
Act,
1975, situated in the Nilgiris District of Tamil Nadu. The members
of this association have established resorts/guest houses in the Nilgiris
forest area. The other appellants are either the owners of the resorts/
guest houses or the owners of the lands in and around the Nilgiris forest
area. Some of them have built dwelling houses on their lands, some of
them have encroached upon government lands and put up constructions
thereon and some of them are cultivating the said lands.
4. Before referring to the proceedings before the High Court and
this Court,as well as the submissions made by the learned counsel for
the parties, it would be helpful to refer to the background facts and the
prevailing ecological context in which the impugned G.O. was notified.
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A. BACKGROUND
5. Despite being a figure of traditional cultural reverence, today
the elephant species is severally threatened in India. The crux of the
problem is one that affects all wildlife in the country: land. As India’s
human population has grown exponentially in the past several decades,
so has its demand for resources. At its essence, that demand boils down
to the requirement for more land – for agriculture to grow more food
and for construction of roads, dams, mines, railways and housing. This
demand for land has led to the degradation and fragmentation of the
country’s forest cover. The elephant, being a large agrarian animal, may
weigh upto 4-5 tons and requires about 200-300 kgs. of fodder comprising
of various plant species daily. It, therefore, needs large areas, which it
uses by rotation, so that it may not overgraze an area and in the process
destruct it altogether. This allows the natural vegetation of the habitats a
chance to re-generate.
6. However, the ever-growing need for land, infrastructure and
energy requirements of our large population have slowly fragmented the
elephant’s natural spaces which are now surrounded by human habitation,
agriculture, mining, roads and railways. The more forest habitat is
fragmented, the farther an elephant herd has to roam in search of food
and water. Increasingly, elephants have to move farther and farther afield,
even from one forest area to another, often
through small patches of
forests called corridors. As forest lands continue to be lost, these relatively
narrow and linear patches of vegetation form vital natural habitat linkages
between larger forest patches. They allow elephants to move between
secure habitats freely, without being disturbed by humans. Further,
elephants are genetically programmed by nature to never inbreed within
their birth family and thus need to move around between gene pools to
reproduce. These corridors aid this process by helping different elephant
populations to intermingle, which is essential for retaining the vigour of
the species and ensuring its long-term survival. By identifying and nurturing
such corridors, deadly confrontations between humans and elephants
can be avoided, in addition to safeguarding the welfare of the wildlife.
Unfortunately, in most areas, the existing corridors are repeatedly being
destroyed which will block migration routes of the elephants and would
result in the fragmentation of the habitats as well as increased human-
elephant conflict.
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7. To prevent such conflict and protect elephants, the Government
of India through the then Ministry of Environment and Forests launched
a centrally sponsored scheme ‘Project Elephant’ to provide financial
and technical support to the wildlife management efforts by States for
their free ranging populations of wild elephants. The ‘Project Elephant’
document was released in the year 1993. It admits that elephants are
facing serious threat due to large scale destruction and fragmentation of
their habitat due to increase in human and cattle populations, felling of
natural forest and replacing them with single species, commercial
plantation, excessive grazing, forest fires and shifting cultivation,
destruction or capture for crop raiding, human killings, encroachments
and man-made barriers/destructions such as roads, railway lines, dams,
canals, tea gardens, agriculture and industry etc. The ‘Project Elephant’
was to provide financial and technical support to major elephant bearing
States in the country. The project aims to ensure long term survival of
viable conservation reliant population of elephants in their natural habitats
by protecting the elephants, their habitats and migration corridors. Other
goals of the ‘Project Elephant’ are addressing issues of human-animal
conflict and providing for welfare of captive elephants.The main activities
under this project include the following:
1. Ecological restoration of existing natural habitats and migratory
routes of elephants;
2. Development of scientific management planning for
conservation of elephant habitats and viable elephant
populations in India;
3. Promotion of measures for mitigation of human-elephant
conflict in crucial habitats;
4. Moderating impact of human and domestic livestock activities
in crucial elephant habitats;
5. Strengthening of measures for protection of wild elephants
from poachers and unnatural causes of death;
6. Research on elephant management related issues;
7. Public conservation education and awareness programmes
about elephants;
8. Eco-development of elephant habitats; and
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9. Provision of improved veterinary care for elephants.
8. Specifically in the context of elephant preservation in Tamil
Nadu, on 14.06.2006, the State’s Principal Chief Conservator of Forests
and Chief Wildlife Warden (‘PCCF’) had requested that the private/
patta lands forming the traditional movement corridors of elephants
between the Mudumalai Wildlife Sanctuary and National Park to other
parts and also between Eastern and Western Ghats be brought under
the control of the Forest Department, by acquiring the lands after paying
compensation to the owners. The PCCF had highlighted the use of these
patches of private forest land, which serve as vital migratory routes, for
non-forestry use as a serious threat to free movement of elephants.The
PCCF addressed another letter dated 6.11.2006 to the State Government,
proposing the Survey Nos. of the patta land to be acquired for the purpose
of the elephant corridors. Similarly, the Ministry of Environment and
Forests, Government of India, by its letter dated 11.08.2006 to the State
Government of Tamil Nadu had noted that 88 elephant corridors had
been identified by the Wildlife Trust of India’s book titled “Right of Passage
– Elephant Corridors of India” and requested that necessary action be
taken for notification and protection of the elephant corridors situated in
Tamil Nadu, as identified in the aforesaid publication.
9. Pursuant to this communication, the Government
of Tamil Nadu
issued a Government Order dated 21.08.2007, appointing an Exploratory
Committee with Collector of Nilgiris as the Chairman and four other
members consisting of District Forest Officer, Nilgiris North Division,
Wildlife Warden, Ooty, Officer of the Revenue Department, Ooty and
the concerned Tehsildar. This Committee was constituted for exploring
the possibility of acquiring the patta lands with the willingness of farmers
who could spare their lands for acquisition for elephant corridors.
B. Proceedings before the Madras High Court
10. During this period, an organization called ‘In Defence of
Environment and Animals’, represented by its Managing Trustee
‘Elephant’ G. Rajendran, filed Writ Petition No.10098 of 2008 before the
Madras High Court seeking issuance of a Writ of Mandamus directing
the official respondents therein to keep the elephant corridors free from
encroachment and to prevent any other disturbances to the free
movement of elephants and other animals. It was the specific case of
the petitioner therein that the elephant corridor was being disturbed by
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some encroachers and builders. Due to mushrooming of resorts, elephant
corridors were either closed or becoming narrow. It was further contended
that the Forest Department had not taken any stringent action to evict
the encroachers from the elephant corridor. On 02.02.2009, the High
Court passed an interim direction to the District Collector, Nilgiris to file
a status report showing the steps taken to remove the encroachers from
the lands falling under the elephant corridor.
11. Certain other writ petitions were filed by the Schedule Tribes
and other Traditional Forest Dwellers contending that they were not
encroachers and that they had a right to occupy the land in question
under the Schedule Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006. It was further contended that
on the strength of the order dated 02.02.2009 in Writ Petition No.10098
of 2008, the District Collector had directed them to stop the cultivation
of these lands and that they were being prevented from collection of
minor forest produce and grazing their cattle. These writ petitions were
clubbed together for hearing before the Madras High Court.
12. At this stage, Hospitality Association of Mudumalai, the
appellant herein, filed an impleadment application in the said case. It
was contended that this association consisted of residents of the Masingudi
Bokkapuram area and that they had been providing hospitality services
to tourists who visit the area to
see the wildlife and that there was a
misguided sense of hostility towards the people who own and run guest
houses in this area from the authorities and self-proclaimed
environmentalists dwelling outside the area. It was also contended that
the members of the said association had been living in the said area for
more than 50-60 years and that there had been virtually no human-animal
conflict in the area since there is little to no agriculture and the elephants
can freely move around throughout the area.
13. During the course of hearing, the District Forest Officer of
Nilgiris North Division made a presentation before the High Court to
highlight the importance of the forests and corridors in the region. The
District Collector, Nilgiris also appeared before the High Court and showed
certain slides on his computer depicting a map of the corridor of elephants.
He stated that to allow the elephants to pass through the corridor, the
unauthorized occupants hadto be evicted. Similarly, the State’s PCCF
also made submissions before the High Court to highlight the necessity
of preservation of the elephant corridor by acquisition of patta lands.
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Considering the rival contentions of the parties, on 30.09.2008, the High
Court issued the following directions:
“(i)
forest department, which has the knowledge of
movement of elephant in the corridor, may identify and
inform the same;
(ii)
the State Government may publish the information
regarding the elephant corridor and the area, in leading
newspapers and also by drum beating/tom tom, calling
for objections of locals, if any, in the area in question;
(iii)
after hearing the locals, particularly those who may be
affected, they may finalize the elephant corridor from
which unauthorized occupants are to be evicted;
(iv)
to ensure that schedule tribes and other forest
traditional dwellers are not affected, it is required to
identify the other traditional forest dwellers in terms
with Schedule Tribes and other Traditional Forest
Dwellers (Recognition of Forest Tribes) Rules, 2007;
(v)
only after the recommendation and recording their names
in the appropriate register, they may proceed with
eviction, by giving notice in the newspaper, by drum
beating/tom tom and by giving individual notice to the
unauthorised occupants.
(vi)
So far as the acquisition of the land is concerned, if
any private land is required to be acquired, they will
have to follow the procedure under the Land Acquisition
Act. Prima facie, as the tribals and other forest dwellers
cannot be evicted from the unauthorized lands, their
lands need not
required to be acquired, if it is a forest
land. Learned counsel for the parties are requested to
give further suggestion in the matter, in the interest of
public and elephants.”
14. Since there was opposition to the map prepared by the District
Collector by the contesting parties, the Court felt it necessary that a
team of experts of the Environment and Forest Department be constituted
to identify the elephant corridor and submit a report after taking into
consideration different books published with regard to elephant corridors.
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15. In pursuance of the directions of the High Court, an Expert
Committee was constituted by the Government. The Expert Committee
visited the elephant corridor area in the Nilgiris twice, enquired with the
field officers and tribals of the area and obtained opinions from experts
before submitting its report on 04.11.2009. A map of the elephant corridor
in the Sigur Plateau in Nilgiris region was also filed by the said expert
Committee before the High Court. Noting that the State Government
was responsible for notifying elephant corridors within its territory, the
High Court on 01.12.2009 directed the State Government to choose one
of the maps for the elephant corridor out of either the one identified by
the Expert Committee or the one identified by the Wildlife Trust of India’s
publication “Right of Passage – Elephant Corridors of India”, which
was referred to in the Central Government’s abovementioned letter dated
11.08.2006. This order also directed the State Government to file an
affidavit disclosing the actions it intends to take against resort owners
and residents of the elephant corridor. In accordance with the High Court’s
directions,the State Government came forward with a decision that it
will ensure that no illegal construction takes place in the area shown as
‘elephant corridor’ in the report of the Expert Committee and that no
person will be allowed to put up fresh solar/electrical fencing within the
proposed area of the elephant corridor.
Taking into account the materials
on record, the High Court passed a fresh order dated 03.12.2009 as
under:
“(i)
The State Government will have to decide as to which
Elephant Corridor has to be identified, i.e. corridor
identified by the Central Government in the letter dated
11.08.2006, with the help of the State Forest Department
and NGOs, or the proposed Elephant Corridor as
identified by the Expert Committee in the present cases,
preferably within one month.
(ii)
Thepublication of such map showing the Elephant
Corridor, should be made by the State through the Forest
Department, in two local newspapers, one in English
and another in vernacular Tamil, giving the details of
Survey Numbers of private lands which are falling
within the proposed Elephant Corridor. The persons may
be asked to submit their objections within a time frame,
say one month.
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(iii)
The intimation of such proposed Elephant Corridor
along with a copy of the report of the Expert Committee,
should be also forwarded to each local Panchayats,
which fall within the proposed Elephant Corridor, so
that the local persons can have the knowledge of the
corridor of their own, if they so choose.
(iv)
No separate individual hearing is required to be given
to any person, though a mass hearing may be given as
generally given in the “Land Acquisition” cases and
on hearing such objections, the proposed Elephant
Corridor including the map containing the different
Survey Numbers should be finalized and be also
published at an early date, say maximum within six
months.
(v)
No individual or any Association generally should
intervene in the case. If they have any objection, they
may raise before the authorities concerned.
23. On such finalization, it will be open for the State to decide:
(a)
Whether the private lands which are falling within the
Elephant Corridor, do not belong to Schedule Tribe and
other traditional forest dwellers, who have a right under
the provisions of the Schedule Tribes and other
Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006, and whether such lands should be
acquired. If the decision is taken to acquire the lands,
they will follow the regular procedures as laid down
under the provisions of the Land Acquisition Act.
(b)
If the State Government, in the meantime, wants
to take
over the management of the private forest, it may do so
in terms of Section 3 of the Tamil Nadu Private Forest
(Assumption of Management) Act (LV of 1961), so as to
enable the elephants to pass through the corridor
without any hindrance till the lands are acquired.”
16. Here, it may be noted that the aforesaid order of 03.12.2009
passed by the High Court was challenged before this Court through
Special Leave Petition (Civil) Nos. 14416–14422 of 2010 which was
disposed vide order dated 30.04.2010 in the following terms:
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“Permission to file special leave petitions is granted.
Delay condoned.
Heard learned counsel for the petitioner and learned counsel
for respondent no.1.
The learned counsel for the petitioner contends that if
proposed Elephant Corridors established, the petitioner would
be seriously effected as his land falls in that area.
The petitioner would be at liberty to approach the Committee
which is likely to finalize the Elephant Corridors and also
would be at liberty to approach the High Court and seek
intervention proceedings though the division Bench has
already indicated under other proceeding that no intervention
is allowed.
With the above directions, the special leave petitions are
disposed of.”
17. In pursuance of the directions of the High Court, the State
Forest Department issued a public notice dated 07.01.2010, thereby
publishing a proposed elephant corridor, as identified by the Expert
Committee, and requiring the persons whose private lands are falling
within the proposed corridor to submit objections. Public hearings were
also held by the authorities concerned and the objections raised by various
persons were rejected. Thereafter, the State Government issued the
impugned G.O., thereby confirming the elephant corridor map as published
on 07.01.2010 and also specifying the boundaries of the elephant corridor
and the Survey Nos. falling within the said corridor.
18. Several writ petitions were filed before the High Court
challenging the impugned G.O.
These were clubbed with the other pending
writ petitions and PIL and came to be decided by the High Court’s
impugned order dated 07.04.2011.
19. The High Court rejected the appellant’s contentions regarding
the propriety of constitution of the Expert Committee given that the Wildlife
(Protection) Act, 1972(‘Wildlife Act’) does not envisage the same and
rather provides for constitution of State and National Boards for Wildlife.
It was held that the Expert Committee’s mandate did not impinge upon
that of the Boards under the Wildlife Act. The High Court also did not
find merit in the appellant’s contention that the State Government lacked
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the power to notify an elephant corridor. For this, the High Court relied
upon Entries 17A ‘Forest’ and 17B ‘Protection of wild animals and birds’
in the concurrent list and the power of the State Government to notify
Sanctuaries, National Parks, Conservation Reserves and Community
Reserves under Chapter IV of the Wildlife Act.
20. Before the High Court, the appellant had also contended that
the impugned G.O. sought to create an “artificial corridor” in an area
through which elephants do not traditionally pass. In rejecting this
contention, the High Court held that the material on record clinchingly
showed that the animals were already moving through the said area.The
High Court observed that the appellant and others have constructed
holiday resorts and are carrying on commercial activities in the area
despite only holding permissions for construction of dwelling houses.
The mushrooming of such resorts, which were bounded by electric fencing
and barbed wires, had severally restricted the movement of elephants
and caused an increase in incidents of human-elephant conflict.
Accordingly, the High Court passed the following directions which are
under challenge before us:
“The resort owners and other private land owners are directed
to vacate and hand over the vacant possession of the lands
falling within the notified ‘elephant corridor’ to the District
Collector, Nilgiris within three months from today. In the
meanwhile,
the Government of Tamil Nadu is permitted to go
on with the implementation of the project as has been notified
in G.O.M.s. No. 125, dated 31.08.2010, in the best interest of
the wildlife, particularly elephants so as to notify and improve
the elephant corridor.”
21. The High Court also directed the State to strictly adhere with
the provisions of the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006 and in case any forest
dwellers are evicted from the elephant corridor, they be provided alternate
accommodation or compensation as per the procedure contemplated
under law.
22. A Review Application No. 157 of 2011 was filed against the
above decision of the High Court. The same was dismissed by the High
Court vide its order dated 16.11.2011 on the ground that the impugned
judgement was a reasoned order which did not suffer from any error
apparent on the face of the record.
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C. Proceedings before this Court
23. During the pendency of the present appeals, this Court was
informed that large scale construction was underway in the elephant
corridor in Tamil Nadu. In its order dated 12.07.2018, this Court had
made it clear that no construction is allowed in the elephant corridor in
Tamil Nadu and directed District Collector, Nilgiris to prepare and present
a plan of action on how to identify the constructions that have been
made, when they have been made and for what purpose the constructions
are being utilized. This plan of action was to be with respect to the
elephant corridors as mentioned in the Report of the Elephant Task Force
titled “Gajah” as well as the elephant corridor as notified by the impugned
G.O.
24. In compliance with this order, the District Collector, Nilgiris
filed a Plan of Acton Report which identified the following constructions
in the elephant corridor areas:
Sl. No.
Nature of the construction
Total 
number 
of 
constructions 
01. 
Total No. of Buildings within Resort Complexes (numbering 
39) 
309 
02. 
Houses 
390 
03. 
Other Common Buildings (Schools, Water Tank, Community 
Halls, Temple, Public Toilet etc.) 
27 
04. 
No. of Estates/Plantations 
9 
05. 
No. of Cultivation Fields 
77 
06. 
Other Constructions 
9 
Total
821
Specifically in respect of the resorts, the District Collector
submitted that all 39 of them were operating illegally as 27 of them had
obtained approvals only for residential purpose
whereas 12 of them had
not obtained any approval at all.
25. At the next hearing on 09.08.2018, this Court noted that only
advocates on behalf 12 out of the 39 resorts were present before the
Court and thus deemed that the remaining 27 resorts had accepted the
Collector’s above-mentioned report. Accordingly, this Court directed that
these 27 resorts be closed down/sealed by the Collector and granted 48
hours to the other 12 resorts to produce documents showing approvals
and title for running of their resorts before the Collector. If the Collector
were to find the documentation incomplete, she was directed to
immediately close down/seal the premises. Further, the non-resort
dwellers who were identified by the Collector’s report to be occupying
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land in the corridor area, were granted a period of 2 months to produce
necessary documents for verification before the Collector.
26. Thereafter, the District Collector, Nilgiris filed an Action Taken
Report dated 23.10.2018 stating that 27 resorts had been sealed as per
this Court’s above direction and documents were received from the other
12 resorts. The Collector submitted that out of these 12 resorts, only 1
resort owner could show proof of use of his premises for residential
purpose while the remaining 11 resort owners did not have valid
documents. Accordingly, these 11 resorts were also sealed by the
Collector in accordance with the above order of this Court. In this Report,
the Collector additionally highlighted that the Forest Department had
directed the sealed resorts to remove solar, electric and barbed wire
fences erected around their premises as the same hinder the free
movement of elephants in the corridor. However, only a few of the resort
owners had complied with the Forest Department’s directive. In this
connection, on 24.10.2018, this Court directed that electric fences and
barbed wire, wherever installed by there sort owners, should be removed
immediately. The District Collector, Nilgiris filed another Action Taken
Report dated 29.11.2018 reporting that she had ensured removal of
electric fences and barbed wire from the premises of the aforesaid resorts
in the corridor area.
27. During this time,
in addition to the 12 resorts which were
initially represented before this Court, several other owners of resorts/
guest houses as well as the owners of cultivated lands, dwelling houses
and other constructions in and around the elephant corridor area have
sought to be impleaded before us, being aggrieved by the actions of the
District Collector, Nilgiris and also the impugned High Court decision.
D. Contentions of the Parties
28. Appearing for the appellants, Shri Salman Khurshid, learned
Senior Counsel argues that the appellants’ lands do not fall within an
elephant corridor and that the area notified under the impugned G.O.
does not fall within any scientifically recognized elephant corridor and
seeks to cover areas which are not traversed by elephants. It is further
contended that the identification of elephant corridors is a scientific process
and that the impugned G.O., which was issued in pursuance of the
recommendations of the Expert Committee appointed by the High Court,
was erroneous and untenable in law. The resort owners claim that they
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run small resorts which are compatible with the environment and are
essentially for tourists who want to be close to nature and wildlife. It is
also asserted that these resorts help tourists acquire sensitivity towards
animals and the environment, while preventing any exploitation or damage
by their presence. Some of the other appellants have also contended
that their lands do not fall within the elephant corridor from which the
removal of encroachment was sought.
29. It is further argued that the areas which have been notified as
elephant corridor by the State Government through the impugned G.O.,
are in variance with all authoritative studies on historic elephant corridors
in Sigur Plateau from 1972 till date. It is also submitted that there is a
variance in acreage between the recommendations of the Expert
Committee formed by the High Court and the impugned G.O. issued by
the State Government. It is contended that the unilateral addition and
deletion of private/Government lands in the said G.O. is arbitrary and
illegal. The expansion of the corridor areas under the G.O. amounts to
creation of a new elephant corridor which does not presently exist and
the same is unlawful.
30. Learned counsel for some of the other appellants have made
similar submissions. It was argued that the lands of the appellants do not
fall within the elephant corridor. It was also argued that the Plan of
Action Report filed by the District Collector, Nilgiris before this Court is
clearly fallacious and the actions of the District Collector in pursuance
thereof are illegal. Some of the appellants have further alleged that the
District Collector, Nilgiris has illegally removed fencing from
establishments outside the notified elephant corridor area as well.
31. On the other hand, learned advocate appearing for the
contesting respondents, has sought to justify the impugned judgment of
the High Court, so also the Plan of Action Report and Action Taken
Reports filed by the District Collector, Nilgiris.
32. Learned advocate appearing as Amicus Curiaehas supported
the submissions of the contesting respondents and the Reports submitted
by the District Collector, Nilgiris.
E. Our Analysis
33. We have carefully considered the submissions of the learned
counsel made at the Bar and perused the materials on record.
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34. At the very outset, it must be noted that the Wildlife Trust of
India terms elephants as a “keystone species” because their nomadic
behavior is immensely important to the environment. Herds of roaming
elephants play several important roles in the ecosystem:
(i)
Landscape architects: Elephants create clearings in the forest
as they move about, preventing the overgrowth of certain
plant species and allowing space for the regeneration of others,
which in turn provide sustenance to other herbivorous animals.
(ii) Seed dispersal: Elephants eat plants, fruits and seeds, releasing
the seeds when they defecate in other places as they travel.
This allows for the distribution of various plant species, which
benefits biodiversity.
(iii) Nutrition: Elephant dung provides nourishment to plants and
animals and acts as a breeding ground for insects.
(iv) Food chain: Apex predators like tigers will sometimes hunt
young elephants. Further, elephant carcasses provide food
for other animals.
(v) The umbrella effect: By preserving a large area for elephants
to roam freely, one provides a suitable habitat for many other
animal and plant species of an ecosystem.
Elephant corridors allow elephants to continue their nomadic mode
of survival, despite shrinking forest cover, by facilitating travel between
distinct forest habitats. Corridors are narrow and linear patches of forest
which establish and facilitate connectivity across
habitats. In the context
of today’s world, where habitat fragmentation has become increasingly
common, these corridors play a crucial role in sustaining wildlife by
reducing the impact of habitat isolations. In their absence, elephants
would be unable to move freely, which would in turn affect many other
animal species and the ecosystem balance of several wild habitats would
be unalterably upset. It would also eventually lead to the local extinction
of elephants, a species which is widely revered in our country and across
the world.To secure wild elephants’ future, it is essential that we ensure
their uninterrupted movement between different forest habitats. For this,
elephant corridors must be protected.
35. Legal intervention in preservation of these corridors has been
necessitated because wildlife corridors are threatened by various social,
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economic and anthropogenic factors, as noted above. Commercial
activities such as running of private resorts and construction of new
buildings with barbed and electric fences within elephant corridors pose
a serious threat of fragmentation and destruction of habitats.The long-
term survival of the species depends on maintaining viable habitats and
connecting corridors which maintain variance in the species’ gene pool
and avoid other risks associated with habitat fragmentation and isolation
of species.
36. Overtime, several environmental legislations including the Indian
Forest Act, 1927 and the Wildlife Act have been enacted to provide for
the protection of forests and wild animals, with a view to ensuring
ecological balance and preserving natural habitats including such corridors.
The object of the Wildlife Act was interpreted emphatically by this Court
in State of Bihar v. Murad Ali Khan1 in the following terms:
“8. … The policy and object of the Wild Life laws have a long
history and are the result of an increasing awareness of the
compelling need to restore the serious ecological-imbalances
introduced by the depredations inflicted on nature by man.
The state to which the ecological imbalances and the
consequent environmental damage have reached is so
alarming that unless immediate, determined and effective steps
were taken, the damage might become irreversible. The
preservation of the fauna and flora some species of which
are getting extinct at an
alarming rate, has been a great and
urgent necessity for the survival of humanity and these laws
reflect a last-ditch battle for the restoration, in part at least, a
grave situation emerging from a long history of callous
insensitiveness to the enormity of the risks to mankind that
go with the deterioration of environment.
xxx
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xxx
10. … Environmentalists’ conception of the ecological balance
in nature is based on the fundamental concept that nature is
“a series of complex biotic communities of which a man is an
inter-dependant part” and that it should not be given to a
part to trespass and diminish the whole. The largest single
factor in the depletion of the wealth of animal life in nature
1 (1988) 4 SCC 655
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has been the “civilized man” operating directly through
excessive commercial hunting or. more disastrously, indirectly
through invading or destroying natural habitats.”
37. Specifically in issue before us, is the corridor in the Sigur
Plateau of Tamil Nadu. It connects the Western and the Eastern Ghats
and sustains elephant populations and their genetic diversity. The Sigur
Plateau has the Nilgiri Hills on its south-western side and the Moyar
River Valley on its north-eastern side. Depending on the monsoon, the
elephants migrate in search of food and water and during the course of
their migration, they have to cross the Sigur Plateau. This migratory
path is considered to be very crucial as it connects several contiguous
forest areas forming the Nilgiri Biosphere Reserve in the states of Tamil
Nadu, Karnataka and Kerala, the largest protected forest area in India.
38. Conflicting maps of this corridor were presented before the
Madras High Court, which thus directed the State Government to choose
between: (i) the elephant corridors identified in the Wildlife Trust of India’s
book titled “Right of Passage – Elephant Corridors of India” which were
referred to by the Central Government in its letter dated 11.08.2006 to
the State Government; or (ii) the single elephant corridor identified by
the Expert Committee appointed by the High Court. As per the aforesaid
book titled “Right of Passage”, the following 4 corridors lie
in the Sigur
Plateau region: (i) Avarahalla – Sigur, (ii) Kalhatti – Sigur at Glencorin,
(iii) Moyar – Avarahalla and (iv) Kalmalai – Singara and Avarahalla.
The Expert Committee examined all the elephant corridors in the area
and identified a single elephant corridor comprising of various elephant
corridors in the Sigur Plateau region.The State Government, vide the
impugned G.O., notified this single elephant corridor, along the lines of
the recommendations made by the Expert Committee.
39. The first limb of the appellants’ contentions before us is that
there is no statutory power for creating/recognition of new corridors by
the State Government. We do not find merit in this argument and, in
principle, are in agreement with the findings of the High Court regarding
the power of the State Government to take measures, including issuance
of the impugned G.O., for protection of wildlife in Tamil Nadu. It is
undeniable that the State Government is empowered to take measures
to protect forests and wildlife falling within its territory in light of Entries
17A ‘Forest’ and 17B ‘Protection of wild animals and birds’ in the
concurrent list and the power of the State Government under the Wildlife
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Actto notify Sanctuaries and other protected areas. It is an admitted
position that the land of the appellants has also been notified as private
forest in 1991 under the Tamil Nadu Preservation of Private Forests
Act, 1949, which prohibits cutting of trees in private forests. Our attention
has also been drawn to the decision of this Court in T.N. Godavaraman
Thirumulkpad v. Union of India2 wherein felling of trees in the state
of Tamil Nadu was prohibited in all forests, including forests situated in
privately owned lands. The contesting respondents have argued that the
construction of the appellants’ resorts must have necessarily run afoul
of the above decision of this Court. Without commenting on the factual
accuracy of this assertion, given that the classification of the appellants’
land as private forest land is not in dispute here, we find no difficulty in
holding that the State Government was empowered to protect the habitats
situated on the appellants’ land by notifying an elephant corridor
thereupon.
40. Furthermore, since the impugned decision of the High Court,
the Ministry of Environment, Forest and Climate Change vide its
Notification S.O. 4498(E) dated 13.12.2019 has declared the entire area
in question and adjoining areas around the Mudumalai Tiger Reserve as
an Eco-Sensitive Zone. Under this Notification, the State Government
of Tamil Nadu has been expressly directed to regulate land use generally,
as well commercial establishment of
hotels/resorts specifically, in the
Eco-Sensitive Zone so established. As was held by this Court in M.C.
Mehta v. Union of India and Ors.3 the “Precautionary Principle” has
been accepted as a part of the law of our land. Articles 21, 47, 48A and
51A(g) of the Constitution of India give a clear mandate to the State to
protect and improve the environment and to safeguard the forests and
wild life of the country. It is the duty of every citizen of India to protect
and improve the natural environment including forestsand wild life and
to have compassion for living creatures. The Precautionary
Principlemakes it mandatory for the State Government to anticipate,
prevent and attack the causes of environmental degradation. In this light,
we have no hesitation in holding that in order to protect the elephant
population in the Sigur Plateau region, it was necessary and appropriate
for the State Government to limit commercial activity in the areas falling
within the elephant corridor.
2 (1997) 2 SCC 267
3 (1997) 3 SCC 715
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41. The second limb of the appellants’ submissions comprises of
questions about the scientific accuracy of the Expert Committee’s Report
and contentions that the dimensions as well as the location of the single
corridor identified therein are at odds with authoritative scientific
publications. It has been argued by the appellants that their resorts and
other establishments do not fall within the historic corridors identified in
these publications. These assertions were dealt with by the High Court
which held that there was material on record to show presence of
elephants as well as a past incident of human-elephant conflict, which
resulted in the death of a French tourist, in the region where the appellants’
resorts are located. The High Court also held that any absence of
elephants from the areas surrounding the appellants’ resorts was, in fact,
due to the construction activities of the appellants whereby access of
the elephants has been restricted through erection of electric fencing.
We see no reason to interfere with the above factual findings of the
High Court and also do not find fault in the State Government’s adoption
of the recommendations of the High Court-appointed Expert Committee,
through the impugned G.O.
42. This brings us to the last limb of the submissions of the
appellants, which is comprised of factual objections to the acreage of
the elephant corridor as notified by the impugned G.O. and the
actions
taken by the District Collector, Nilgiris in pursuance thereof. The
appellants have contended that there has been substantial variance
between the acreage recommended for acquisition by the Expert
Committee Report and the acreage in the impugned G.O. It is further
alleged that the acreage in the newspaper advertisement by the State
Government inviting objections to notification of the corridor is also
different from the acreage in the impugned G.O. As all the objections
received pursuant to the said newspaper advertisement were rejected
by the State Government and since the impugned G.O. purported to
adopt the recommendations of the Expert Committee, the appellants
allege that the said variance in acreage is arbitrary and unreasonable. It
has also been alleged that the District Collector, Nilgiris has acted
arbitrarily in sealing their resorts after rejecting the documents submitted
by the appellant resorts purporting to show approvals and title. Similarly,
it has been alleged that the District Collector went beyond the scope of
this Court’s order dated 24.12.2018 wherein immediate removal of electric
fences and barbed wire was directed. It is the appellants’ case that non-
electric fences as well as fences beyond the notified elephant corridor
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area were removed by the District Collector. We are of the view that it
is just and proper to hold an inquiry to establish the veracity of the above
factual objections of the appellants.
43. Therefore, we appoint a 3-member Inquiry Committee
consisting of: (i) Hon’ble Mr. Justice K. Venkatraman, Former Judge of
the Madras High Court (Chairman); (ii) Mr. Ajay Desai, Consultant to
World Wide Fund for Nature-India and Member of the Technical
Committee to come up with a National Elephant Action Plan (NEAP),
constituted by the Union Ministry of Environment, Forest and Climate
Change (MOEF&CC); and (iii) Mr. Praveen Bhargava, Trustee of
Wildlife First and Former Member of National Board for Wildlife to
decide the individual objections of the appellants and any other persons
claiming to be aggrieved by the actions of the District Collector, Nilgiris
pursuant to the impugned G.O. and as recorded before us through her
Plan of Action Report and her twin Action Taken Reports, as also the
allegations regarding arbitrary variance in acreage of the elephant corridor
under the impugned G.O. The State Government is directed to consult
the Chairman of the Inquiry Committee and pay remuneration to him
and the other Members of the Inquiry Committee. Further, we direct the
State Government to provide appropriate secretarial assistance and
logistical support to the Inquiry Committee for holding the inquiry within
four weeks from today.
44. We leave it to the discretion of the
Inquiry Committee to decide
the location for its inquiry proceedings. We also authorize the Inquiry
Committee to appoint requisite staff on temporary basis to assist the
Committee in the inquiry and to fix their salaries. The State Government
is directed to pay their salaries. The State Government and the district
level authorities are directed to provide their full cooperation and produce
any and all files/documents required by the Inquiry Committee to address
the grievances of the appellants and any other persons claiming to be
similarly aggrieved. The appellants and other persons claiming to be
aggrieved by the plan of action/actions of the District Collector, Nilgiris
pursuant to the impugned G.O. and the allegations regarding variance in
acreage under the impugned G.O, are permitted to file objections
containing their grievances before the Inquiry Committee within a period
of four months from today.The Inquiry Committee is directed to consider
the objections filed before it and pass appropriate orders thereon after
granting the parties a reasonable opportunity of being heard. The parties
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are also permitted to file documents in support of their respective
contentions before the Inquiry Committee.
45. The present appeals are disposed of in the aforesaid terms,
leavingthe parties to bear their own costs. All pending applications shall
stand disposed of.
Divya Pandey
Appeals disposed of.