Karnataka High Court
M/S Bhushan Enterprises vs State Of Karnataka on 13 January, 2021
Author: Abhay S. Oka
Bench: Abhay S. Oka
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.15654 OF 2020(GM-MM-S)
BETWEEN:
M/S BHUSHAN ENTERPRISES
REPRESENTED BY ITS PARTNER
GEORGE ABRAHAM
AGED ABOUT 62 YEARS
NO. 234, 1ST STAGE
NARAYANA NAGAR
DODDAKALLASANDRA POST - 560 062
KANAKAPURA ROAD
BENGALURU
... PETITIONER
(BY SHRI. RAVINDRA GAJANAN KOLLE, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
REPRESENTED BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BENGALURU - 560 001
2 . THE SECRETARY TO GOVERNMENT
DEPARTMENT FO COMMERCE AND INDUSTRIES
VIKASA SOUDAH
BENGALURU
BENGALURU - 560 001
3 . THE DIRECTOR AND COMMISSIONER
DEPARTMENT OF MINES AND GEOLOGY
KHANIJA BHAVAN
RACE COURSE ROAD
BENGALURU - 560 001
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4 . THE ADDITIONAL CHIEF SECRETRY
DEPARTMENT OF FORESTS
ECOLOGY AND ENVIRONMENT
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
BENGALURU - 560 001
5 . THE SENIOR GEOLOGIST AND COMPETENT AUTHORITY
DEPARTMENT OF MINES AND GEOLOGY
S3 AND S3A, ZILLADALITHA BHAVANA
2ND FLOOR, KUMBARAHALLI, KOLAR
KOLAR DISTRICT - 563 103
6 . THE DEPUTY CONSERVATOR OF FOREST
O/O THE DCF, KOLAR DIVISION
BANGARPET ROAD, KOLAR
KOLAR DISTRICT - 563 101
7 . THE CHIEF CONSERVATOR OF FORESTS
KARNATAKA FOREST DEPARTMENT
ARANYA BHAVAN
18TH CROSS
MALLESHWARAM
BENGALURU - 560 003
... RESPONDENTS
(BY SHRI. I.TARANATH POOJARY,AGA)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DIRECT TO QUASH OR SET ASIDE THE ENDORSEMENT
DATED:18.11.2020 AND FOREST OPINION/NOC
DATED:03.11.2020 RESPECTIVELY ISSUED BY R-5 SENIOR
GEOLOGIST AND 6TH RESPONDENT DEPUTY CONSERVATOR
OF FOREST PRODUCED AT ANNEXURE-A AND C
RESPECTIVELY AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THROUGH VIDEO CONFERENCING THIS DAY, CHIEF JUSTICE
MADE THE FOLLOWING:
ORDER
Notice for final disposal was issued on the earlier date. -3-
2. The petitioner was granted a quarrying lease for ordinary building stone under the provisions of the Karnataka Minor Mineral Concession Rules, 1994 (for short 'the said Rules'). The lease was for a period of ten years. The petitioner sought for deemed extension of lease in terms of sub-rule (4) of Rule 8-A of the said Rules as amended with effect from 12th August 2016. The challenge in this writ petition under Article 226 of the Constitution of India is to Annexures-A and C. Annexure-C is the letter addressed by the Deputy Conservator of Forest to the Senior Geologist in which it is stated that the radius of 10 Kms. from the Wildlife Sanctuary shall be considered as a "Default Eco-Sensitive Zone". In terms of the said letter, an endorsement dated 18th November 2020 at Annexure-A has been issued stating that the site of the lease subject matter of this writ petition is at a distance of 7.40 kms. from the Kamasandra Wildlife Sanctuary (for short 'the said Wildlife Sanctuary') and therefore, it is falling within the "Default Eco-Sensitive Zone" of width of 10 Kms. It is further stated that the deemed extension for the lease will be processed after producing No Objection Certificates from the various departments and after obtaining prior approval of the Standing Committee of the National Board for Wildlife. -4-
3. The submission of the learned counsel appearing for the petitioner made on the last date was based on what is held by the Apex Court in Paragraph 50 of the decision in the case of Goa Foundation vs Union of India and others1. He would submit that the concept of "Default Eco-sensitive Zone"
is not known to law.
4. The learned Additional Government Advocate relied upon the order dated 4th December 2016 in W.P.No.460 of 2004 passed by the Apex Court. He relied on the Official Memorandum dated 8th August 2019 issued by the Ministry of Environment, Forest and Climate Change and in particular, sub clause (iii) of Clause 4 thereof. He has also relied upon the order dated 11th December 2018 passed by the Apex Court in the case of T.N. Godavararman Thirumulpad .vs. Union of India and others2. At this stage, the learned Additional Government Advocate relies upon the guidelines for declaration of Eco-Sensitive Zone around the National Parks and Wildlife Sanctuaries. He, therefore, submitted that the area within the radius of 10 Kms. around the said Wildlife Sanctuary is a Eco-Sensitive Zone. He has also produced for the perusal 1 (2014)6 SCC 590 2 W.P.(Civil) No.202/1995 -5- of the Court, a draft notification proposed to be issued by the Ministry of Environment, Forest and Claimate change in respect of the said Wildlife Sanctuary.
5. We have carefully considered the submissions. The petitioner is seeking a deemed extension of the lease in accordance with sub-rule (4) read with sub-rule (2) of Rule 8-A of the said Rules. The extension of period of lease under sub- rule (2) and sub-rule (4) is automatic as a result of deeming fiction subject to compliance of the conditions therein. In both the provisions, there is no condition imposed of obtaining no objection certificates from various Departments after obtaining prior approval of the Standing Committee of the National Board for Wildlife.
6. The only ground taken in Annexures-A and C is that the radius of 10 Kms. around the said Wildlife Sanctuary shall be considered as "Default Eco-Sensitive Zone". For supporting the concept of "Default Eco-Sensitive Zone", the learned Additional Government Advocate relied upon the order dated 4th December 2006 passed by the Apex Court in W.P.No.460 of 2004. In paragraph 50 of its decision in the case of Goa Foundation (supra), the Apex Court has quoted -6- paragraphs 4 and 5 of the said order dated 4th December 2006 and thereafter, the Apex Court has explained the said order as under:
"It will be clear from the order dated 4-12-2006 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 of this Court, however, the Ministry of Environment and Forests, Government of India, was directed to give a final opportunity to all State/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 park or wildlife sanctuaries".
(underline supplied) Thus, the Apex Court, in so many words, has clarified that there is no direction, interim or final, issued prohibiting mining activities within the radius of 10 Kms. from the boundaries of National Parks or Wildlife Sanctuaries. Therefore, the order dated 4th December 2006 will not help the respondents.
7. Reliance is placed by the learned Additional Government Advocate on the order dated 11th December 2008 in T.N. Godavararman Thirumulpad (supra), a copy of which -7- is annexed at Annexure-M. The said order relates to only 21 National Parks and Wildlife Sanctuaries which are specifically set out in the said order. The said Wildlife Sanctuary which is the subject matter of this writ petition is not included in the said list.
8. The learned Additional Government Advocate relied upon the Office Memorandum dated 8th August 2019. From the subject of the said Office Memorandum, it is seen that it only contains the procedure for consideration of developmental projects located within 10 Km. of National Park/Wildlife Sanctuary for grant of environmental clearance. In this case, we are not deciding the question of grant of environmental clearance to the petitioner. The only limited issue is whether a deemed extension under sub-rules (2) and (4) of Rule 8-A of the said Rules can be granted.
9. The learned Additional Government Advocate also relied upon the guidelines for declaration of Eco-Sensitive Zones around National Parks and Wildlife Sanctuaries. The Guidelines note that in response, some of the State Governments had raised concerns over the applicability of radius of 10 Km. wide Eco-Sensitive Zone from the Protected -8- Area Boundary. Thereafter, the Guidelines refer to National Wildlife Action Plan and the decision of National Board for Wildlife etc. Guideline No.4 is in respect of the extent of Eco- Sensitive Zones. Clause (1) thereof clearly indicates that defining of the extent of Eco-Sensitive Zones around the Protected Areas will have to be kept flexible and Protected Area specific. The width of the Eco-Sensitive Zone and the type of Regulations will differ from Protected Area to Protected Area. It is observed that as a general principle, the width of the Eco-Sensitive Zone could go up to 10 Kms. around a Protected Area. Sub-clause 2 of clause 4 refers to cases where Eco- Sensitive Zone can be extended beyond 10 Kms. Thus, the guidelines relied upon by the learned Additional Government Advocate itself makes it clear that the same does not provide for a straight jacket formula that in case of every Wildlife Sanctuary, the radius of 10 Kms. around it should be construed as Eco-Sensitive Zone. Thus, the said Guidelines would not help the learned Additional Government Advocate to support the concept of "Default Eco-Sensitive Zone" of 10 Kms.
10. On the contrary, the learned Additional Government Advocate produces for the perusal of the Court a draft Notification which is yet to be issued by the Central -9- Government in respect of the said Wildlife Sanctuary where it is proposed that the area falling within the radius of 3.90 Kms. is proposed to be declared as Eco-Sensitive Zone. As stated earlier, even according to the impugned endorsement, the area subject matter of lease is at a distance of 7.40 Kms.
11. Thus, the impugned endorsements/orders at Annexures-A and C are based on a non-existing concept of "Default Eco-Sensitive Zone" of radius of 10 Kms. around every Wildlife Sanctuary. Therefore, only on the basis of the concept of "Default Eco-Sensitive Zone", the prayer for grant of deemed extension made by the petitioner could not have been rejected and the said prayer ought to have been considered within the four corners of law.
12. Accordingly, we pass the following order:
i) The impugned endorsements/orders at Annexures-A and C are hereby quashed only on the ground that the deemed extension as provided in sub-rule (2) read with sub-rule (4) of Rule 8-A of the said Rules cannot be denied to the petitioner only on the ground that the lease area is in "Default Eco-
Sensitive Zone" forming part of the radius of 10 Kms. around the said Wildlife Sanctuary;
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ii) We make it clear that the issue whether the petitioner is entitled to the deemed extension under the provisions of Rule 8(A) of the said Rules shall be independently considered by the Senior Geologist in accordance with law;
iii) Appropriate decision on grant of deemed extension shall be taken by the Senior Geologist within a period of two months from today;
iv) The writ petition is partly allowed on the above terms.
v) The pending interlocutory application does not survive for consideration and is accordingly disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE *alb/-.