In Re : T.N. Godavarman Thirumulpad vs Union Of India And Ors.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION I.A. NOS. 131377, 147102, 195467, 195468, 205092 OF 2022,

I.A. NOS. 162283 AND 162284 OF 2022 IN I.A. D. NO. 125746 OF 2022

WITH

I.A. NOS. 118604, 118606, 119400, 119401, 119404, 137132, 137138, 137140 AND 137143 OF 2022

I.A. NOS. 5764, 6804 AND 10911 OF 2023

IN THE MATTER OF:

WRIT PETITION (CIVIL) NO. 202 OF 1995

IN RE: T.N. GODAVARMAN THIRUMULPAD ...PETITIONER(S)

VERSUS UNION OF INDIA AND OTHERS ...RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

I.A. NO. 131377 OF 2022:

Signature Not Verified 1. The present I.A. is filed by the Union of India praying for Digitally signed by Narendra Prasad Date: 2023.04.26

modification/clarification of the order passed by this Court 12:44:10 IST Reason:

1 dated 3rd June 20221 in I.A. No. 1000 of 2003 in WP(C) No.

202 of 1995.

2. The applicant specifically seeks modification of the

directions contained in paragraphs 56.1 and 56.5 of the order

dated 3rd June 2022 (supra). The said paragraphs are

reproduced hereinbelow:

“56.1. Each protected forest, that is, national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9-2-2011 shall be strictly adhered to. For Jamua Ramgarh Wildlife Sanctuary, it shall be 500 m so far as subsisting activities are concerned. ……….

56.5. In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as per the 9-2-2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months.

Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were

1 (2022) 10 SCC 544

2 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.”

3. The clarification/modification of paragraph 56.1 of the

order dated 3rd June 2022 (supra) is sought to the extent that

the Eco-Sensitive Zones (for short, “ESZs”) which have

already been notified (final and draft) by the Ministry of

Environment Forests and Climate Change (for short, “MoEF &

CC”) or the proposals for which have been received in the

Ministry be exempted from the directions therein. The

applicant also sought modification to the extent that

paragraph 56.1 of the order dated 3 rd June 2022 (supra) may

not be made applicable where National Parks and Wildlife

Sanctuaries are located along inter-State boundaries and/or

common boundaries. Modification/clarification of the

directions in paragraph 56.5 of the order dated 3 rd June 2022

(supra) in its entirety is additionally sought.

4. We have heard Ms. Aishwarya Bhati, learned Additional

Solicitor General (for short, “ASG”) appearing on behalf of the

applicant, Shri K. Parameshwar, learned amicus curiae as

3 well as Senior Counsel appearing on behalf of various State

Governments.

5. It is submitted that the Government of India has already

issued Guidelines on 9th February 2011 (hereinafter referred

to as the “said Guidelines”) for declaration of ESZs around

National Parks and Wildlife Sanctuaries. The said Guidelines

were framed after consulting the National Board for Wildlife

(hereinafter referred to as “NBWL”), and all the State and

Union Territory Governments. The said Guidelines provide a

detailed procedure for submitting a proposal for declaration of

the areas around National Parks and Wildlife Sanctuaries as

ESZs. It is further submitted that the said Guidelines itself

contain various activities which have been categorized as

prohibited, regulated and permitted.

6. It is further submitted that the direction as contained in

paragraph 56.5 of the order dated 3 rd June 2022 (supra) is

likely to cause great hardship to the citizens residing in the

ESZs. It is further submitted that the said directions provide

that if any activity is already being undertaken within one

kilometre or extended buffer zone (ESZ), and which does not

4 come within the ambit of prohibited activities as per the said

Guidelines, such activities may continue with the permission

of the Principal Chief Conservator of Forests (for short,

“PCCF”) 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. The said

Guidelines further provide that such permission shall be

given once the PCCF is satisfied that the activities concerned

do not come within the prohibited list and were continuing

prior to passing of this Court’s order dated 3 rd June 2022

(supra) in a legitimate manner. It is further submitted that

the direction that no new permanent structure shall be

permitted to come up for whatsoever purpose within the

ESZs would also cause great hardship.

7. It is further submitted that insofar as the direction in

paragraph 56.1 of the order dated 3 rd June 2022 (supra) is

concerned, it mandates that 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

5 proscribed and prescribed in the said Guidelines shall be

strictly adhered to. Insofar as Jamua Ramgarh Wildlife

Sanctuary is concerned, it is directed that the ESZ shall be

500 meters so far as subsisting activities are concerned.

8. The learned ASG, amicus curiae and Senior Counsel

appearing on behalf of various States submitted that in

respect of various National Parks and Wildlife Sanctuaries,

already final notifications had been issued, prescribing the

boundaries for the ESZs. In some cases, the draft

notifications are pending and in some other cases, the

proposals for issuance of draft and final notifications are

pending with the Government of India.

9. It is submitted that there cannot be a uniform boundary

for all the National Parks and Wildlife Sanctuaries. It is

further submitted that there cannot also be a uniform

boundary for a particular National Park or Wildlife Sanctuary.

At times, it may be longer on one side and shorter on the

other side depending on various circumstances.

10. It is submitted that the rights of the citizens who are

residing in the Protected Areas are settled under the

6 provisions of Sections 18 to 25A of the Wild Life (Protection)

Act, 1972 (hereinafter referred to as “1972 Act”) whereas

there is no settlement of rights of citizens residing in ESZs.

The citizens therein continue to reside and are also

continuing with their daily avocation like farming etc. It is

submitted that various developmental activities like

construction of schools, dispensaries, anganwadis, public

health centres etc. are required to be undertaken in such

areas. Not only that, but if the direction not to make any

construction is continued, the persons residing therein would

not be in a position to construct or reconstruct houses on

their own land. It is submitted that the procedure prescribed

for obtaining the permission of the PCCF is very tedious. If

such a direction is issued, the PCCF would be left with no

other work but to consider the applications for continuation

of such activities.

11. It is further submitted that though this Court has

observed in paragraph 54 of the order dated 3 rd June 2022

(supra) that the said Guidelines are reasonable, it has

7 nevertheless issued directions which are in conflict with the

said Guidelines.

12. It is further contended that the issue in I.A. No. 1000 of

2003 was restricted to prohibition of mining activities in and

around Jamua Ramgarh Wildlife Sanctuary and prescribing

ESZs for the said Wildlife Sanctuary only. As such, various

State Governments did not have an opportunity to address

this Court.

13. Having considered the rival submissions, we find it

appropriate to refer to various orders passed by this Court on

the issue of ESZs/Buffer Zones.

14. The first of such orders was passed by this Court on

16th September 20052. It will be relevant to refer to paragraph

13 of the said order, which reads thus:

“13. We have perused the affidavit dated 14-9- 2005 filed by Mr Anurag Bajpai on behalf of MoEF and the statement showing the grant of temporary working permit in the last two years i.e. from 1-1-2003 to 31-12-2004 in the national parks, sanctuaries and forest area. This is despite the order passed by this Court restraining the mining activities in these areas. Learned amicus curiae submits that the inspection of the government record shows a

2 (2006) 5 SCC 25

8 dismal picture and he would shortly file an application for taking appropriate action against the persons concerned. Pending filing of the said application and further orders, we again reiterate that without compliance with the environmental laws, in particular the permission under the Forest (Conservation) Act, 1980, no temporary working permission or temporary permit or any other permission by whatever name called shall be granted for mining activities in the aforesaid areas. We further direct that no mining activity would continue under any temporary working permit or permission which may have been granted. It appears from the chart filed with the affidavit of Mr Anurag Bajpai that no temporary working permission is in operation as of today. If it is otherwise, an affidavit to that effect shall be filed within two weeks giving the particulars of such permission.” [emphasis supplied]

15. It can thus clearly be seen that this Court directed that

no mining activity would be permitted to continue under any

temporary working permit or permission which may have

been granted.

16. It will further be relevant to refer paragraph 15 of the

said order, which reads thus:

“15. MoEF is directed to place on record within three weeks its viewpoint on the question of area of buffer zone and other related matters such as should it be universal or place specific.

9 This should be done after also obtaining the viewpoint of the National Board of Wildlife.”

17. It can thus be seen from the said paragraph that this

Court directed MoEF to place on record within three weeks

its viewpoint on the question of area of buffer zone and other

related matters such as should it be universal or place

specific. The Court further directed that this should be done

after obtaining the viewpoint of the NBWL.

18. The second of such orders is passed on 4 th August

20063. The said order basically pertains to banning the

mining activities in the National Parks, Sanctuaries and

forest areas. The Court laid down various pre-conditions

wherein temporary working permits could be granted.

19. The next order is passed on 4 th December 20064. In the

said order, the Court expressed its anguish towards the

various State Governments for not responding to the letter

issued by MoEF dated 27th May 2005 requiring them to

initiate measures for identification of suitable areas and

submit detailed proposals at the earliest. It will be relevant

3 (2010) 13 SCC 740 4 (2011) 15 SCC 791

10 to refer to paragraphs 3 and 4 of the said order, which read

thus:

“3. The order earlier passed on 30-1-2006 [Goa Foundation v. Union of India, (2011) 15 SCC 793] refers to the decision which was taken on 21-1-2002 to notify the areas within 10 km of the boundaries of national parks and sanctuaries as eco-sensitive areas. The Letter dated 27-5-2005 is a departure from the decision of 21-1-2002. For the present, in this case, we are not considering the correctness of this departure. That is being examined in another case separately. Be that as it may, it is evident that the States/Union Territories have not given the importance that is required to be given to most of the laws to protect environment made after Rio Declaration, 1992.

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 11 regard to the precautionary principles. If the States/Union Territories now fail to respond, they would do so at their own risk and peril.”

20. It can be seen that this Court refers to its earlier order

dated 30th January 2006 wherein a reference is made to the

decision dated 21st January 2002 to notify the areas within

10 kilometres of the boundaries of National Parks and

Sanctuaries as ESZs. Though the order records that the

letter dated 27th May 2005 is a departure from the decision

taken on 21st January 2002, the Court observes that, in the

said case, the Court was not considering the correctness of

the said departure. The Court therefore directed the Ministry

to give a final opportunity to all States/Union Territories to

respond to its Letter dated 27 th May 2005. The said order

states that the communication should mention that if the

proposals were not sent within a period of four weeks from

the 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 st

January 2002, i.e., notification of the areas within 10

12 kilometres of the boundaries of the sanctuaries and National

Parks as ESZs.

21. The next order of this Court is dated 21 st April 2014 in

the case of Goa Foundation v. Union of India and Others5.

It will be relevant to refer to the following observations of this

Court in the said order:

“49. ……The result is that the order passed by this Court saying that there will be no mining activity within one kilometre safety zone around national park or wildlife sanctuary has to be enforced and there can be no mining activities within this area of one kilometre from the boundaries of national parks and wildlife sanctuaries in the State of Goa.”

22. The Court has clarified that there shall be no mining

activity within one kilometre of the safety zone around

National Park or Wildlife Sanctuary and that this has to be

enforced. It is also reiterated that there can be no mining

activities within this area of one kilometre from the

boundaries of National Parks and Wildlife Sanctuaries in the

State of Goa.

23. The Court thereafter refers to the earlier order dated 4 th

December 2006 (supra) in the said case and observed thus:

5 (2014) 6 SCC 590

13 “50. ……..It will be clear from the order dated 4-12-2006 [Goa Foundation v. Union of India, (2011) 15 SCC 791] of this Court that this Court has not passed any orders for implementation of the decision taken on 21-1-

2002 to notify areas within 10 km of the boundaries of national parks or wildlife sanctuaries as eco-sensitive areas with a view to conserve the forest, wildlife and environment. By the order dated 4-12-2006 [Goa Foundation v. Union of India, (2011) 15 SCC 791] of this Court, however, the Ministry of Environment and Forests, Government of India, was directed to give a final opportunity to all States/Union Territories to respond to the proposal and also to refer to the Standing Committee of the National Board for Wildlife the cases in which environment clearance has already been granted in respect of activities within the 10 km zone from the boundaries of the wildlife sanctuaries and national parks. There is, therefore, no direction, interim or final, of this Court prohibiting mining activities within 10 km of the boundaries of national parks or wildlife sanctuaries.”

24. It could thus be seen that the Court has specifically

observed that this Court had not passed any orders for

implementation of the decision taken on 21 st January 2002

to notify areas within 10 kilometres of the boundaries of

National Parks or Wildlife Sanctuaries as ESZs with a view to

conserve the forest, wildlife and environment. The Court

therefore clarified that there is no direction, interim or final,

14 prohibiting mining activities within 10 kilometres of the

boundaries of National Parks or Wildlife Sanctuaries.

25. It will be relevant to refer to paragraphs 87.3 and 88.1

of the said order, which read thus:

“87.3. Until the order dated 4-8-2006 [T.N. Godavarman Thirumulpad v. Union of India, (2010) 13 SCC 740] of this Court is modified by this Court in IA No. 1000 in T.N. Godavarman Thirumulpad v. Union of India, there can be no mining activities within one kilometre from the boundaries of national parks and sanctuaries in Goa.

88.1. MoEF will issue the notification of eco- sensitive zones around the national park and wildlife sanctuaries of Goa after following the procedure discussed in this judgment within a period of six months from today.”

26. It can thus be seen that this Court has held that until

the order dated 4th August 2006 (supra) is modified by this

Court in IA No. 1000 of 2003 in the case of T.N.

Godavarman Thirumulpad v. Union of India, there can be

no mining activities within one kilometre from the

boundaries of National Parks and Sanctuaries in Goa. The

Court further directed MoEF to issue the notification of ESZs

around the National Park and Wildlife Sanctuaries of Goa

after following the procedure discussed in the said judgment.

15 The same was directed to be done within a period of six

months from the date of the said order.

27. The next relevant order would be dated 11 th December

2018. It will be relevant to refer to the following part of the

said order:

“The learned ASG has informed us that there are 104 National Parks and 558 Wildlife Sanctuaries making a total of 662 National Parks and Wildlife Sanctuaries in the country.

The proposals for declaring areas around these National Parks and Wildlife Sanctuaries as Eco Sensitive Zone have been received from State Governments / UT Administrations for 641 National Parks and Wildlife Sanctuaries. No proposals have been received in respect of 21 National Parks and Wildlife Sanctuaries.

The proposals have been accepted and Notification has been issued in respect of 289 National Parks and Wildlife Sanctuaries as on 26.11.2018 and draft Notification has been prepared in respect of 206 National Parks and Wildlife Sanctuaries.

The declaration with regard to Eco Sensitive Zone is under process with the Ministry of Environment, Forests and Climate Change (MoEF) as well as with the State Governments in respect of 4 146 National Parks and Wildlife Sanctuaries.

We expect the Ministry of Environment, Forests and Climate Change to actively pursue the preparation of the draft Notification and to issue a final Notification at the earliest.

16 The proposals for 21 National Parks and Wildlife Sanctuaries in respect of which proposals have not yet been received by the MOEF are as follows:-

……..

It is submitted by the learned Amicus that this issue has been pending since sometime in December, 2006. 12 years have gone-by but no effective steps have been taken by the State Governments in respect of the National Parks and Wildlife Sanctuaries mentioned above.

Under the circumstances, we direct that an area of 10 Kms around these 21 National Parks and Wildlife Sanctuaries be declared as Eco Sensitive Zone by the MoEF. The declaration be made by the MoEF at the earliest.

Liberty is granted to the State Governments to move an application for modification of this order along with proposal only two weeks after submission of the proposals to the MoEF.”

28. It can be seen that this Court has recorded the

submissions of the learned ASG that there were 104 National

Parks and 558 Wildlife Sanctuaries making a total of 662

National Parks and Wildlife Sanctuaries in the country. It

was further recorded that the proposals for declaring areas

around these National Parks and Wildlife Sanctuaries as

ESZs had been received from the State Governments/Union

17 Territories. It can further be seen that no proposals have

been received in respect of 21 National Parks and Wildlife

Sanctuaries. It further recorded that the proposals had been

accepted and notification had been issued in respect of 289

National Parks and Wildlife Sanctuaries as on 26 th November

2018 and draft notification had been prepared in respect of

206 National Parks and Wildlife Sanctuaries. The Court

therefore expected the MoEF & CC to actively pursue the

preparation of the draft Notification and to issue a final

Notification at the earliest. The Court then recorded 21

National Parks and Wildlife Sanctuaries in respect of which

proposals have not yet been received by the MoEF & CC

alongside its anguish that though 12 years had been passed,

no effective steps have been taken by the State Governments

in respect of the National Parks and Wildlife Sanctuaries

named in the said order. Therefore, the Court directed that

an area of 10 kilometres around these 21 National Parks and

Wildlife Sanctuaries be declared as ESZs by the MoEF & CC.

Liberty was granted to the State Governments to move an

application for modification of the said order. However, it

18 further directed that the application should be along with the

proposal for declaration of ESZs.

29. It is to be noted that the learned Judges of this Court,

in the case of Goa Foundation6, had directed that the MoEF

& CC shall follow the procedure and issue notification of

ESZs under Rule 5 of the Environment (Protection) Rules,

1986 (hereinafter referred to as “1986 Rules”). The relevant

provisions of the 1986 Rules are reproduced hereinbelow:

“5. Prohibition and restriction on the location of industries and the carrying on of processes and operations in different areas.—(1) The Central Government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas:

(i) Standards for quality of environment in its various aspects laid down for an area.

(ii) The maximum allowable limits of concentration of various environmental pollutants (including noise) for an area.

(iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted.

6 (2014) 6 SCC 590

19

(iv) The topographic and climatic features of an area.

(v) The biological diversity of the area which, in the opinion of the Central Government needs to be preserved.

(vi) Environmentally compatible land use.

(vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted.

(viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified as such under the Wild Life (Protection) Act, 1972 or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international conference, association or other body.

(ix) Proximity to human settlements.

(x) Any other factor as may be considered by the Central Government to be relevant to the protection of the environment in an area.

(2) While prohibiting or restricting the location of industries and carrying on of processes and operations in an area, the Central Government shall follow the procedure hereinafter laid down.

20 (3) (a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the location of an industry or the carrying on of processes and operations in an area, it may, by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time, give notice of its intention to do so.

(b) Every notification under clause

(a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the location of the industries and carrying on of processes or operations in that area.

(c) Any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or operations as notified under clause

(a) may do so in writing to the Central Government within sixty days from the date of publication in the notification in the Official Gazette.

(d) The Central Government shall within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette consider all the objections received against such notification and may [within [seven hundred and twenty-five days [, and in respect of the States of Assam, Meghalaya, Arunachal Pradesh, Mizoram, Manipur, Nagaland, 21 Tripura, Sikkim and Jammu and Kashmir in exceptional circumstance and for sufficient reasons within a further period of one hundred and eighty days,]] from such date of publication] impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area:

[Provided that on account of COVID-19 pandemic, for the purpose of this clause, the period of validity of the notification expiring in the financial year 2020-2021 and 2021-2022 shall be extended up to [30th June, 2022] or six months from the end of the month when the relevant notification would have expired without any extension, whichever is later.] [(4) Notwithstanding anything contained in sub-rule (3), whenever it appears to the Central Government that it is in public interest to do so, it may dispense with the requirement of notice under clause (a) of sub-rule (3).]”

30. It is to be noted that Rule 5 of the 1986 Rules

prescribes a detailed procedure for issuing notification

prohibiting or restricting various activities in the specified

areas. The said power flows from Sections 3(v) of the

Environment (Protection) Act, 1986 (hereinafter referred to as

“1986 Act”).

22 31. A perusal of clause (viii) of sub-rule (1) of Rule 5 of the 1986 Rules would reveal that one of the factors that has to be

taken into consideration for declaring ESZ is the proximity to

a sanctuary, National Park, game reserve or closed area

notified, as such under the 1972 Act. Sub-rule 3(a) of Rule 5

of the 1986 Rules requires that whenever it appears to the

Central Government that it is expedient to impose prohibition

or restrictions, it is required to give notice of its intention to

do so by notification in the Official Gazette and in such other

manner as the Central Government may deem necessary

from time to time. As per sub-rule 3(b) of Rule 5, every such

notification is required to give a brief description of the area,

the industries, operations processes in that area about which

such notification pertains and also specify the reasons for

the imposition of prohibition or restrictions on the location of

the industries on carrying out of the processes or operations

in that area. Accordingly, as per sub-rule 3(c) of Rule 5, any

person interested in filing an objection is entitled to file an

objection to the Central Government within sixty days from

the date of publication in the notification in the Official

23 Gazette. The Central Government thereafter within the

prescribed period provided under clause (d) of sub-rule (3) of

Rule 5 of the 1986 Rules is required to issue a notification in

the Official Gazette imposing such prohibition or restrictions

in an area. This is required to be done only after considering

all the objections received under clause (c) of sub-rule (3) of

Rule 5 of the 1986 Rules. It can thus be seen that a detailed

procedure is prescribed under the 1986 Rules for notifying

ESZs.

32. It is to be noted that MoEF & CC has issued the said Guidelines for declaration of ESZs around the National Parks

and Wildlife Sanctuaries.

33. The said Guidelines refer to a meeting of the Indian Board for Wildlife held on 21 st January 2002, in which

“Wildlife Conservation Strategy-2002” was adopted. Point No.

9 of the said Strategy envisaged that lands falling within 10

kilometres of the boundaries of National Parks and

Sanctuaries should be notified as eco-fragile zones under

Section 3(v) of the 1972 Act and clause (viii) of sub-rule (1) of

Rule 5 of the 1986 Rules. It further states that when the

24 views were obtained from all the State Governments, some of

the State Governments had raised concern over applicability

of 10 kilometres range from the Protected Area boundary and

informed that most of the human habitation and other areas

including important cities in these States would come under

the purview of ESZs and will adversely affect the

development. The said Guidelines also refer to the National

Wildlife Action Plan (2002-2016). The NBWL, in its meeting

held on 17th March 2005, decided that the delineation of

ESZs would have to be site specific and relate to regulation

rather than prohibition of specific activities. The said

decision was communicated to all the State Governments for

compliance vide letter dated 27th May 2005.

34. The said Guidelines thereafter refer to the directions of

this Court dated 4th December 2006. It also refers to the

statutory provisions as contained in Section 5C (1) of the

1972 Act, Section 3 of the 1986 Act and Rule 5 of the 1986

Rules. The said Guidelines state that the purpose of

declaring ESZs around National Parks and Sanctuaries is to

create some kind of Shock Absorber for the Protected Areas.

25 They would also act as a transition zone from areas of high

protection to areas involving lesser protection. It also

reiterates the decision of the NBWL that the activities in the

ESZs would be of a regulatory nature rather than prohibitive

nature unless and otherwise so required. Paragraph 4 of the

said Guidelines notes that many of the existing Protected

Areas have already undergone tremendous development in

close vicinity to their boundaries. It refers to the Guindy

National Park, Tamil Nadu, Sanjay Gandhi National Park,

Maharashtra, etc. and notes that the Protected Areas are

lying in the urban set up. It therefore observes that defining

the extent of ESZs around Protected Areas will have to be

kept flexible and Protected Area specific. It notes that the

width of ESZs and type of regulations will differ from one

Protected Area to another Protected Area. It however notes

that, as a general principle, the width of the ESZs could go

up to 10 kilometres around a Protected Area as provided in

the Wildlife Conservation Strategy-2002. It further notes that

in case where sensitive corridors, connectivity and

ecologically important patches, crucial for landscape linkage,

are even beyond 10 kilometres width, these should be 26 included in the ESZs. It further notes that even in context of

a particular Protected Area, the distribution of an area of the

ESZ and the extent of regulation may not be uniform all

around and it could be of variable width and extent. The

said Guidelines notes that though the directions were issued

by this Court to all the States/Union Territories, except a few

States, several other States/Union Territories have not come

forward with the proposals for declaration of ESZs. It was

observed that this could be perhaps for want of guidelines in

this regard. It further notes that this Court in its judgment

and order dated 3rd December 2010 in a case relating to

construction of park at Noida near Okhla Bird Sanctuary,

observed that the ESZs around the Protected Areas had not

been notified as the Government of India had not issued any

guidelines in this regard.

35. It thereafter refers to the Committee under the Chairmanship of Shri Pronab Sen for identifying parameters

for designating Ecologically Sensitive Areas in India.

36. The said Guidelines thereafter state in paragraph 6 that

the basic aim of notifying ESZs is to regulate certain

27 activities around National Park and Wildlife Sanctuary so as

to minimize the negative impact of such activities on the

fragile ecosystem encompassing the Protected Area. It states

that the first step towards it is to prepare 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 as well as important Corridors. It

states that the inventory could be done by the concerned

Range Officers, who can take a stock of activities within 10

kilometres of the range. It further notes that a Committee

comprising of 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 to suggest the following:

(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.

28 (iv) To suggest broad based thematic activities to be included in the Master Plan for the region.

37. It further notes that based on the above, the Chief

Wildlife Warden could group the activities under the following

categories:-

(i) Prohibited

(ii) Restricted with safeguards.

(iii) Permissible

38. The said Guidelines thereafter note that once the

proposal for ESZs has been finalized, the same should be

forwarded to the MoEF & CC for further processing and

notification. An indicative list of details that need to be

submitted along with the proposals is also appended to the

said Guidelines.

39. The said Guidelines further note that 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 should be the endeavour of both the

State/Union Territory Governments to have a mutual

29 consultation and decide upon the width of the ESZs around

the Protected Area in question. The said Guidelines

emphasize that the State Government should endeavour to

convey a very strong message to the public that ESZs are not

meant to hamper their day to day activities, but instead, are

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. It further notes

that 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.

40. A list of the activities which are prohibited, regulated

and permitted is contained in Annexure-I of the said

Guidelines, which reads thus:

Sl. Activity Prohibited Regulated Permitte Remarks No. d

1. Commercial Y Regulation mining sill not 30 prohibit the digging of earth for construction or repair of houses for manufacture of country tiles or bricks for housing for personal

2. Felling of Y With trees permission from appropriate authority

3. Setting of Y saw mills

4. Setting of Y industries causing pollution (Water, Air, Soil., Noise, etc.)

5. Establishme Y As per nt of hotels approved and resorts master plan, which takes care of habitats allowing no restriction on movement of wild animals

6. Commercial Y For hotels use of and other firewood business related establishment

31

7. Drastic Y change of agriculture systems

8. Commercial Y As per use of approved natural master plan, water which takes resources care of including habitats ground allowing no water restriction on harvesting movement of wild animals.

9. Establishme Y nt of major hydroelectri c projects

10. Erection of Y Promote electrical underground cable cabling

11. Ongoing Y However, agriculture excessive and expansion of horticulture some of these practices activities local should be communitie regulated as s per the master plan

12. Rain Water Y Should be harvesting actively promoted

13. Fencing of Y premises of hotels and lodges

14. Organic Y Should be farming actively promoted

32

15. Use of Y polythene bags by shopkeepers

16. Use of Y Should be renewable actively energy promoted sources

17. Widening of Y This should roads be done with proper EIA and mitigation measures

18. Movement Y For of vehicular commercial traffic at purpose night

19. Introduction Y of exotic species

20. Use of Y production of any hazardous substances

21. Undertaking activities related to tourism like over-flying the National Park are by any aircraft, hot-air balloons

22. Protection of Y As per the hill slopes master plan and river banks

33

23. Discharge of Y effluents and solid waste in natural water bodies or terrestrial are

24. Air and Y vehicular pollution

25. Sign board Y As per the & hoardings master plan

26. Adoption of Y Should be green actively technology promoted.

for all activities

41. It is to be noted that this Court in paragraph 54 of the

order dated 3rd June 2022 (supra) has, in fact, held the said

Guidelines to be reasonable and also accepted the view of the

Standing Committee of the NBWL that uniform guidelines

may not be possible in respect of each sanctuary or National

Park for maintaining the ESZs. It is also observed that the

sanctuaries like Sanjay Gandhi National Park and Guindy

National Park in Mumbai shall form special cases. The said

paragraph 54 is reproduced hereinunder:

34

“54. In our opinion, the Guidelines framed on 9-2-2011 appear 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 park for maintaining ESZ. We are of the opinion, however, that a minimum width of 1 km ESZ ought to be maintained in respect of the protected forests, which forms part of the recommendations of 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.”

42. It is to be noted that an elaborate and exhaustive list

has been prepared by MoEF & CC of the activities which

shall be prohibited, the activities which shall be regulated

and the activities which shall be permitted.

43. In the application, it is stated that after the proposals

are received from the State Governments/Union Territory

35 Administrations, they are scrutinized in consultation with

the Wildlife Institute of India, Dehradun, and in case of tiger

reserves, with the National Tiger Conservation Authority.

They are thereafter published in the Official Gazette of the

Central Government in both Hindi and English. They are

also placed in the public domain for 60 days for seeking

comments of concerned stakeholders. The comments so

received are compiled and scrutinized and observation of the

concerned State Government/Union Territory Administration

is sought on the same. The aforesaid requirements are in

tune with the provisions of Rule 5 of 1986 Rules.

44. The application further states that the proposal is

thereafter placed before an Expert Committee constituted for

ESZ within the MoEF & CC. The said Committee comprises

of the following:

(i) Indian Institute of Remote Sensing/Indian Space Research Organization,

(ii) Ministry of Jal Shakti,

(iii) Ministry of Rural Development,

36

(iv) Forest Survey of India,

(v) Town & Country Planning Organization, Government of India,

(vi) National Tiger Conservation Authority,

(vii) Wildlife Institute of India,

(viii) GB Pant Institute of Himalayan Environment & Development,

(ix) Indian Council of Forestry Research and Education,

(x) World Wildlife Fund,

(xi) Zoological Survey of India,

(xii) Botanical Survey of India,

(xiii) Salim Ali Centre for Ornithology and Natural History (SACON).

45. It is further stated in the application that based on the

recommendation of the Expert Committee (ESZ), the Ministry

finalizes the notification of ESZs and after due legal vetting

by the Ministry of Law & Justice, final notifications specifying

the ESZs around the Protected Areas are notified. It could

thus be seen that an elaborate procedure including

37 consideration by a Committee of Experts coming from 13

organizations having expertise in wildlife ecology, forest etc. is

followed before a final notification prescribing ESZs is

notified.

46. In the application filed by the Union of India, various

illustrations have been given to point out as to how if the

directions issued in paragraph 56.5 of the order dated 3 rd

June 2022 (supra) are not modified, a severe hardship would

be caused to the millions of people. We refer to the same

hereunder:

(i) “The ESZ around Nagarjunasagar Srisailam Tiger Reserve in Andhra Pradesh extends from 0 to 26 kilometres and 100 villages are situated within it (Zero extent of ESZ is due to Krishna River and interstate boundary with Telangana);

(ii) The ESZ around Valmiki Wildlife Sanctuary, Valmiki National Park and Valmiki Tiger Reserve in Bihar extends from 0 to 9 kilometres and 323 villages are situated within it (zero extent of ESZ is towards Western side sharing inter-state boundaries with Uttar Pradesh and

38 towards Northern side sharing international boundary with Nepal);

(iii) The ESZ around Betla National Park, Palamau Wildlife Sanctuary, and Mahuadanr Wolf Sanctuary in Jharkhand extends from 0 to 9 kilometres and 382 villages are situated within it (Zero extent of ESZ is due to Inter-State boundary);

(iv) The ESZ around Cauvery Wildlife Sanctuary in Karnataka extends from 1 to 14.5 kilometres and 107 villages are situated within it;

(v) The ESZ around Kanha National Park and Phen Wildlife Sanctuary in Madhya Pradesh extends from 0 to 30 kilometres and 168 villages are situated within it (Zero extent of Eco-sensitive Zone is towards the eastern side having interstate boundary with Chhattisgarh);

(vi) The ESZ around Tadoba-Andhari Tiger Reserve in Maharashtra extends from 3 to 6 kilometres and 150 villages are situated within it;

(vii) The ESZ around Jaisamand Wildlife Sanctuary in Rajasthan extends from 1.6

39 to 8.9 kilometres and 83 villages are situated in it;

(viii) Even a small ESZ such as the one around Keoladeo National Park in Rajasthan which extends from 0.5 to 1.5 kilometres has 22 villages situated in it.”

47. It would thus reveal that in the ESZ around

Nagarjunasagar Srisailam Tiger Reserve in Andhra Pradesh,

100 villages are situated within it. In the ESZ around

Valmiki Wildlife Sanctuary, Valmiki National Park and

Valmiki Tiger Reserve in Bihar, 323 villages are situated

within it. In the ESZ around Betla National Park, Palamau

Wildlife Sanctuary, and Mahuadanr Wolf Sanctuary in

Jharkhand, 382 villages are situated within it. In the ESZ

around Cauvery Wildlife Sanctuary in Karnataka, 107

villages are situated within it. In the ESZ around Kanha

National Park and Phen Wildlife Sanctuary in Madhya

Pradesh, 168 villages are situated within it. In the ESZ

around Tadoba-Andhari Tiger Reserve in Maharashtra, 150

villages are situated within it. In the ESZ around Jaisamand

Wildlife Sanctuary in Rajasthan, 83 villages are situated in it.

40 Even in a small ESZ around Keoladeo National Park in

Rajasthan, 22 villages situated in it.

48. If the direction as issued by this Court in paragraph

56.5 of the order dated 3 rd June 2022 (supra) is continued,

then no permanent structure would be permitted to come up

for whatsoever purpose in the aforesaid ESZs. As already

pointed out from the aforesaid examples, hundreds of villages

are situated within the ESZs in the country. If no permanent

construction is to be permitted for any purpose, a villager

who is desirous to reconstruct his house would not be

permitted. Similarly, if there is an extension in their family

and some additional construction is required for

accommodating the enlarged family, the same would also not

be permitted. Similarly, if the Government decides to

construct schools, dispensaries, anganwadis, village stores,

water tanks and other basic structures for improvement of

the life of the villagers, the same would also not be permitted.

The effect of the order will be to prevent the State or the

Central Government from constructing roads and provide

other facilities to the villagers.

41

49. If the order dated 3rd June 2022 (supra) is not modified,

it will also be impossible for the Forest Departments to

conduct eco-development activities around National Parks

and Sanctuaries. The said activities are required with the

dual objectives of protection of wildlife and provision of

benefits for the local communities. MoEF & CC provides

financial assistance to the States under the Centrally

Sponsored Scheme-Integrated Development of Wildlife

Habitats, which includes assistance for eco-development

activities. These activities often involve construction of small

structures which are permanent in nature in areas including

ESZs. For example, the said activities which are likely to be

prohibited are thus:

(i) The construction of community halls, bridges, threshing floors, fish-drying platforms, drinking water storage, etc., for the benefit of local communities/villages;

(ii) The construction of forest chowkies, watch towers, and other structures for protection of wildlife and forests;

(iii) The construction of interpretation centres, toilets and other basic structures

42 for the environmental education of visitors to National Parks and sanctuaries.

50. It is further to be noted that there are various regulated

and permissible activities. There are also certain projects of

national and strategic importance such as construction of

National Highways, Railways, Defence related infrastructure

etc. The effect of the direction in 56.5 of the order dated 3 rd

June 2022 (supra) is that all such activities will be

permanently prohibited. In this respect, it is to be noted that

MoEF & CC has issued an Office Memorandum dated 17 th

May 2022 which required that any activity listed in Schedule

of the EIA Notification 2006, when conducted in a notified

ESZs, or in the case of National Parks and Sanctuaries for

which no ESZ has been finally notified, when conducted

within 10 kilometres of such National Park or Sanctuary,

requires the consideration and recommendation of the NBWL

or its Standing Committee in addition to the Environment

Clearance under the 1986 Act. Additionally, activities which

are regulated as per the specific ESZ notification, require

43 approval as per that notification. As such, we find that there

are inbuilt safeguards for preventing rampant construction

and abuse of process which may be detrimental to the

development and maintenance of wildlife habitats. It is

further to be noted that if the direction as contained in

paragraph 56.5 of the order dated 3 rd June 2022 (supra) that

even for continuation of existing activities, the permission of

the PCCF of each State or Union Territory would be

necessary, remains unmodified, taking into consideration

that in each State or Union Territory there will be hundreds

of villages wherein millions of people would be residing, the

PCCF would be left with no other job except to consider such

applications for permission to continue such activities. Even

a farmer desirous to continue farming activities would be

required to seek such permission. We find that such a

direction is impossible to be implemented.

51. We are of the view that if such a direction is continued,

rather than avoiding man-animal conflict, it will intensify the

same. As observed in the said Guidelines, the requirement of

declaring ESZs is not to hamper day to day activities of the

44 citizens but is meant to protect the precious forests/Protected

Areas from any negative impact, and to refine the

environment around the Protected Areas.

52. As already discussed hereinabove, the necessity to have

ESZs is to provide a buffer zone around the Protected Areas.

The rights of the villagers residing in the Protected Areas are

required to be settled in accordance with the provisions

contained in the 1972 Act and such villagers are rehabilitated

outside the Protected Areas. However, no such settlement of

rights is available to the villagers residing in the ESZs areas.

As stated in the said Guidelines, the purpose of declaring

ESZs is not to hamper the day to day activities of the

citizens. If the direction as issued is continued, it would

certainly hamper the day to day activities of the citizens

residing in ESZs. As such, we find that the said direction

needs to be modified.

53. It is further to be noted that the NBWL, in its meeting

dated 17th March 2005, has also recommended that the

delineation of ESZs should project as regulation rather than

prohibition of activities.

45

54. As was pointed out by the counsel for one of the States,

the entire municipal area of the Sulthan Bathery Block

Panchayat is situated within the ESZ area.

55. Insofar as direction in paragraph 56.1 of the order dated

3rd June 2022 (supra) is concerned, a perusal of various

orders would reveal that this Court has not directed any

minimum area from the demarcated boundary of such

Protected Areas. The area to be declared as ESZ cannot be

uniform and will be Protected Area specific. In some cases, it

may be 10 kilometres on one side and 500 meters on the

other side. In certain cases, it may not be possible to have a

uniform minimum area by virtue of inter-state boundaries or

a sea or a river beyond one side of the Protected Area. In any

case, a detailed procedure is required to be followed as

prescribed under Rule 5 of the 1986 Rules which we have

already referred hereinabove. We find that once such a

notification is issued after following the procedure prescribed

under the 1986 Rules, the ESZs will have to be as per the

said notification.

46

56. It is further to be noted that, as required under sub-rule

(3) of Rule 5 of the 1986 Rules, before any final notification is

issued, a draft notification is required to be published in the

Official Gazette and in such other manner as the Central

Government may deem necessary from time to time. Any

person interested in filing any objection to such a draft

notification is entitled to file objection within a period of 60

days from the date of publication of the draft notification in

the Official Gazette. We find that the Central Government

can be directed to give a wide publicity to the draft

notification so that all persons interested have knowledge

about issuance of such draft notification.

57. It is pertinent to note that after following the aforesaid

procedure, the matter is placed before the Expert Committee

consisting of 13 organizations having expertise in the relative

field. As such, before an ESZ area is specified, various factors

are taken into consideration. There are various factors which

will determine the ESZs for a particular Protected Area. The

circumstances may differ from one Protected Area to another

Protected Area. As such, we find that the direction which

47 prescribes a uniform one kilometre ESZ requires to be

modified.

58. It is further to be noted that on the date of filing of the

present application, final notifications have been issued in

respect of 474 Protected Areas whereas draft notifications

have been issued in respect of 102 Protected Areas. 73

proposals are pending. As already discussed hereinabove,

this Court has already found the said Guidelines to be

reasonable and has accepted the same. The Court has also

accepted the view of the Standing Committee of the NBWL

that uniform guidelines may not be possible in respect of

each Sanctuary or National Park for maintaining ESZs.

Though the Court has observed that a minimum width of one

kilometre in ESZ ought to be maintained, in paragraph 56.6

of the order dated 3 rd June 2022 (supra) itself, it has

observed that minimum width of the ESZ may be diluted in

overwhelming public interest but for that purpose the State

or Union Territory concerned is required to approach Central

Empowered Committee (CEC) and MoEF & CC. It has further

observed that both these bodies shall give their respective

48 recommendations before this Court and on that basis, the

Court should pass appropriate order.

59. As already discussed hereinabove, the ESZs are

required to be notified after following the procedure as

prescribed under the 1986 Rules and the said Guidelines.

Such notifications cannot be issued unless a close scrutiny

at various levels including the scrutiny by Expert Committee

consisting of experts from 13 organizations. As such, we find

that the direction as contained in paragraph 56.6 of the

order dated 3rd June 2022 (supra) also needs to be modified.

60. Insofar as the restriction on mining is concerned, we are

of the considered view that it has been the consistent view of

this Court that the mining activities within an area of one

kilometre of the boundary of the Protected Areas will be

hazardous for the wildlife. Though in the case of Goa

Foundation (supra), the said directions were issued in

respect of State of Goa, we find that such directions need to

be issued on Pan-India basis.

61. We are therefore inclined to allow the present I.A. The

direction in paragraph 56.1 of the order dated 3 rd June 2022

49 (supra) is modified and clarified that the directions contained

therein would not be applicable to the ESZs in respect of

which a draft and final notification has been issued by the

MoEF & CC and in respect of the proposals which have been

received by the Ministry.

62. We, however, direct the Central Government that wide

publicity should be given to the draft notification which is

required to be published under the provisions of clause (a) of

sub-rule (3) of Rule 5 of the 1986 Rules. We further direct

that the final notification to be published under clause (d) of

sub-rule (3) of Rule 5 of the 1986 Rules shall not be given

effect for a period of 30 days from the date of issuance

thereof.

63. It is further directed that any person who is aggrieved

with such a final notification would be entitled to approach

this Court directly by filing an application in the present

proceedings.

64. We further clarify that the direction contained in

paragraph 56.1 of the order dated 3 rd June 2022 (supra)

would not be applicable where the National Parks and

50 Sanctuaries are located on inter-State borders and/or share

common boundaries.

65. We also modify the direction contained in paragraph

56.4 of the order dated 3rd June 2022 (supra) and direct that

mining within the National Park and Wildlife Sanctuary and

within an area of one kilometre from the boundary of such

National Park and Wildlife Sanctuary shall not be

permissible.

66. We also modify the directions contained in paragraph

56.5 of the order dated 3rd June 2022 (supra) and replace the

same as under:

(i) The MoEF & CC and all the State/Union Territory

Governments shall strictly follow the provisions in

the said Guidelines dated 9 th February 2011 and

so also the provisions contained in the ESZs

notifications pertaining to the respective Protected

Areas with regard to prohibited activities, regulated

activities and permissible activities;

51 (ii) We further direct that while granting

Environmental and Forest Clearances for project

activities in ESZ and other areas outside the

Protected Areas, the Union of India as well as

various State/Union Territory Governments shall

strictly follow the provisions contained in the

Office Memorandum dated 17th May 2022 issued

by MoEF & CC.

67. All the other present I.As shall stand disposed of in

terms of the above. No costs.

…….........................J. [B.R. GAVAI]

…….........................J. [VIKRAM NATH]

…….........................J. [SANJAY KAROL]

NEW DELHI;

APRIL 26, 2023

52