National Green Tribunal
Brajesh Kumar Bharadwaj vs State Of Madhya Pradesh on 24 March, 2025
Item No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No.188/2023(CZ)
(O.A.No.619/2023 - PB)
IN THE MATTER OF :
Brajesh Kumar Bharadwaj
632, Shubhalay Colony, Narsinghpur Road
Chhindwara M.P-480001.
Applicant(s)
Versus
1 The Secretary
Ministry of Forest, Environment & Climate Change
Indira Paryavarna Bhawan
Jorbagh, Lodhi Colony, New Delhi-110003
Respondent No. 1
2 Airports Authority of India,
Director General Rajiv Gandhi Bhawan,
Safdarjung Airport,
New Delhi-110003
Respondent No. 2
3 The District Magistrate,
Narmadapuram Collectorate Campus,
Collectorate Main Rd,
Dist-Narmadapuram,
Madhya Pradesh-461001
Respondent No. 3
4 Director General of Forest (DGF)
GOI, Ministry of Environment Forest and Climate Change,
Indira Paryavaran Bhawan,
Jorbagh Road
New Delhi-110 003
Respondent No. 4
5 MPSEIAA
M. P. State Environment Impact Assessment Authority,
Paryavaran Parisar,
E-5, Arera Colony,
Bhopal-462 016 (MP)
Respondent No. 5
6 Chief Wildlife Warden,
Department of Forests,
Govt of M.P Ground Floor,
C Block, Van Bhavan Link Road No. 2,
Tulsinagar Bhopal M.P-462003
Respondent No. 6
7 National Tiger Conservation Authority (NTCA)
B-1 Wing, 7th Floor,
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OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
Pt. Deendayal Antyodaya Bhavan CGO Complex,
Lodhi Road, N. Delhi 110003
Respondent No. 7
8 Principal Secretary,
Civil Aviation,
Govt of Madhya Pradesh
5th Floor, Mantralaya, Vallabh Bhawan,
Bhopal. MP-4620041
Respondent No. 8
9 Chief Conservator of Forest and Field Director
Satpura Tiger Reserve,
Narmadapuram Commissioner Colony,
Pipariya Road, Dist-Narmadpuram,
Madhya Pradesh -461001
Respondent No.9
10 Member Secretary,
State Pollution Control Board Paryavaran Parishar,
E-5, Arera Colony, Bhopal
(M.P.) - 462016
Respondent No. 10
COUNSELS FOR APPLICANT(S):
Mr. Brajesh Kumar Bharadwaj
(Applicant in Person)
COUNSELS FOR RESPONDENT(S):
Ms Parul Bhadoria, Adv.
Dr. Sapna Aggarwal, Adv.
Mr. Prashant M. Harne, Adv.
(with Mr. Mehul Bhardwaj, Adv.)
CORAM:
HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Date of completion of hearing and reserving of order : 19.03.2025
Date of uploading of order on website : 24.03.2025
JUDGMENT
1. The Public Works Department of Madhya Pradesh started the expansion of the 1200 meter unreserved Pachmarhi air strip, which is in the eco- sensitive zone of Satpura Tiger and aggrieved by the above construction and expansion of the project, this application has been moved with the prayer that the project for expansion of the 1200 meter unreserved Pachmarhi air strip to 1800 meter which is located within 200 meter of the 2 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. nearest protected area boundary of Satpura Tiger Reserve, construction of RCC building needs to be ceased to safeguard the sensitive area and restoration effort of the ecology of the region must be undertaken immediately. It is further prayed that strict action must be taken against the project proponent and officials for their callous attitude towards the law-endangered wildlife and environment.
2. The Satpura Tiger Reserve is one of the most vital Reserves for survival of tiger and this area has historically been renowned for one of the largest habitats of Tiger. Gaur and Sambhar. At least 14 endangered species of mammals, birds and reptiles inhabit these forests, the flying squirrel, Indian giant squirrel and Leaf nosed bats must be regarded among the most sensitive to habitat changes. Moreover, the airstrip is located within the Pachmarhi hills which was declared a Biosphere Reserve in the year 2009 by UNESCO for its wide range of rare flora and fauna present in the hills.
3. Such expansion shall gravely disrupt the natural movement of the wildlife present due to the proximity of the airstrip to the core area of the Satpura Tiger Reserve i.e., within 200 m. The noise generated from the landing, take-off and movement of aircrafts and helicopters would result in difficulty for the wildlife to use sound for navigation, finding food, mating, and avoiding predators, affecting many animals' ability to survive. Engine run- up procedures for short take-off and landings, as well as the deployment of aircraft engine reversers during landings will produce exceptionally loud noise. The noise will have an impact on the migratory and reproductive habits of the endangered animals and birds in the vicinity. Fuel emissions from aircraft engines and lights below 1000 feet will pollute and impact the ecosystem and result in an increase in pollution in the area. Further, pits dug for expansion would collect water during ongoing monsoon, alluring 3 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. (violation of wildlife protection act 1972) the wildlife towards the pseudo ponds and affect their safety. In the event of an accident or incident that causes the aircraft to crash/skid in the forest and catch fire, the fire would almost certainly spread rapidly and become uncontrollable due to the terrain, destroying the flora and wildlife.
4. Issue raised in this application is expansion of a non-functional Pachmarhi airstrip (Dimensions 3936 X 200 and Aerodrome Reference Point ARP GPS Coordinates-E 78°24′ N 22°27') owned by Madhya Pradesh state government located within 200 m from the nearest Protected Area boundary of the Satpura Tiger Reserve falling in the eco-sensitive zone (ESZ), i.e.. Pachmarhi hills in Narmadapuram district of Madhya Pradesh. and inside UNESCO Biosphere Reserve of Pachmarhi. The expansion is in violation of the Eco- Sensitive Zone Notification of Satpura Tiger Reserve dated 9.08.2017 which prohibits any commercial construction to take place within 1 km from the protected area. Further, even if the said project is allowed to be continued, it is operating without obtaining the mandatory Environmental Clearance from the Ministry of Environment, Forest & Climate Change (MoEF&CC) and the Wildlife Clearance from the Standing Committee of National Board for Wildlife and National Tiger Conservation Authority (NTCA). The decision to allow such project will be disastrous to the long-term survival of tiger species and the ecosystem. The tiger is listed as a protected species in "Schedule I" of the Indian Wildlife (Protection) Act of 1972, as well as in the Convention on International Trade in Endangered Species of Flora and Fauna (CITES). Tigers are a "keystone species", crucial for the integrity of the ecosystems in which they live.
5. It is submitted that the Public Works Department of Madhya Pradesh issued tender and started the work and cutting the trees in violation of eco- sensitive zone notification of the Satpura Tiger Reserve. 4 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
6. The Pachmarhi airstrip which is under expansion is falling within the Eco Sensitive Zone of the Satpura Tiger Reserve. It is pertinent to point out that Satpura Tiger Reserve includes Satpura National Park, Pachmarhi Wildlife Sanctuary and Bori Wildlife Sanctuary. The MoEF&CC with the intention to conserve and protect the area and the extent and boundaries around the critical tiger habitat has declared Eco Sensitive Zone around Satpura Tiger Reserve vide Notification No. S.O. 2538(E) dated 9.08.2017. It is submitted that the Airstrip is located in Pachmarhi and same is listed in Annexure II of the Notification at Sr. No. 79 as an area falling within ESZ of Tiger Reserve.
7. The expansion of the Airstrip within the ESZ of Satpura Tiger Reserve is in is violation of the provisions of the ESZ Notification. The relevant provisions which are being violated by the Project Proponent are reproduced below:
Sr. No. Activity Description
Regulated Activities
13 Construction No new commercial construction of
activities any kind shall be permitted within
one Kilometer from the boundary of
the Protected Area or up to extent of
the Eco- sensitive Zone whichever is
nearer:
(a) Provided that, local people shall
be permitted to undertake
construction in their land for their
use including the activities listed in
sub paragraph (1) of paragraph 3 as
per building byelaws to meet the
residential needs of the local
residents such as:
(i) Widening and strengthening of
existing roads and construction of
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OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
new roads
(ii) Construction and renovation of
infrastructure and civic amenities;
(iii) Small scale industries not
causing pollution termed as per
Classification done by Central
Pollution Control Board of February
2016;
(iv) Cottage industries including
village industries: convenience stores
and local amenities supporting eco-
tourism including home stays; and
(v) Promoted activities listed in this
Notification.
(b) Provided that the construction
activity related to small scale
industries not causing pollution shall
be regulated and kept at the
minimum, with the prior permission
from the competent authority as per
applicable rules and regulations, if
any.
(c) Beyond one kilometer it shall be
regulated as per the Zonal Master
Plan
16 Felling of Trees (a) There shall be no felling of trees
on the forest or Government or
revenue or private land without prior
permission of the competent
authority in the State Government.
(b) The felling of trees shall be
regulated in accordance with the
provisions of the concerned Central
or State Act and the rules made
thereunder.
23 Undertaking Regulated under applicable law
activities related
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OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
to tourism like
over flying the
ESZ area by hot
air balloon.
helicopter.
Microlites, etc.
i. According to Para 4(13) of the Notification, all construction which is commercial in nature within one kilometer from the boundary of the Protected Area or up to the extent of the Eco- Sensitive Zone has been prohibited. Only construction related to land use of the local people is permitted to be undertaken. Therefore, the said expansion project being located within 1 km from the Protected Area is not part of this regulated activity and hence, is prohibited because the purpose of the project is to operate commercial airlines in the region and is not applicable to be considered to be a part of land use of local people.
ii. According to Para 4(23), tourism activities like overflying ESZ are considered under regulated activities, landings and take- offs are not mentioned. However, establishing an airport or airstrip is not considered to be a part of the same. Hence, the said project is violating the provisions of the ESZ Notification which prohibits any commercial construction within 1 km from the Protected. Area.
iii. According to Para 6 Terms of Reference:
1) The Monitoring Committee shall monitor the compliance of the provisions of this Notification.
2) The activities that are covered in the Schedule to the notification of the Government of India in the 7 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
erstwhile Ministry of Environment and Forests number S.O. 1533 (E), dated the 14th September, 2006, and are falling in the Eco-sensitive Zone, except for the prohibited activities as specified in the Table under paragraph 4 thereof, shall be scrutinized by the Monitoring Committee based on the actual site-specific conditions and referred to the Central Government in the Ministry of Environment, Forests and Climate Change for prior environmental clearances under the provisions of the said notification. (This provision was breached since the said project was not reported by the ESZ's Monitoring Committee to the Central Government through MoEF&CC for prior permissions).
8. The area of the airstrip is located within the buffer zone of the notified Tiger Reserve. Hence, it is required to obtain wildlife clearance from the National Board of Wild Life (NBWL) or Standing Committee of NBWL (SCNBWL) as per a letter issued by the National Tiger Conservation Authority (NTCA) F. No. 7-9/2010-NTCA (Part) dated 28.11.2018. Accordingly, the Project Proponent ought to submit a proposal to the Chief Wildlife Warden of the State, who shall forward the proposal to the State Board for Wildlife (SBWL) if the proposal is found to be sustainable, then, if the project is agreed upon, it shall be forwarded for consideration to the SCNBWL. The SCNBWL will accordingly present it before the NTCA, who shall advice whether to allow or disallow the project. The relevant portion is reiterated below:- 8
OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
i. Project proposal involving area falling within a Tiger Reserve:
In respect of projects falling within a notified tiger reserve, be it core or buffer, irrespective of area involved, the project proposal needs wildlife clearance. Therefore, the project proponent shall have to submit proposal to the Chief Wildlife Warden of the concerned State and if found sustainable, the proposal shall be placed before the State Board for Wildlife (SBWL). The proposal, if agreed upon shall be forwarded for consideration of the Standing Committee (SC) of the National Board for Wildlife (NBWL). The Standing Committee of NBWL shall refer it to the National Tiger Conservation Authority for its advise as per provisions of section 38 (0) (1) (b) of the Wildlife (Protection) Act, 1972. The NTCA shall after due scrutiny advice the SC of NBWL. for allowing or disallowing the project. There may be areas within the buffer where legal status of the land can be other than forest. Herein too, section 38 (0) (1) (b) shall be invoked and the Chief Wildlife Warden can refer the matter directly to the NTCA.
9. Further, the OM dated 17.05.2022 of the MoEF&CC (Forest Conservation Division), also requires all projects/activities proposed which are located within notified ESZ around National Parks or Wildlife Sanctuary to be required to be considered by the NBWL/SCNBWL. if such an activity is covered under the Schedule of the EIA Notification, 2006. Therefore, prior to commencing the expansion project, the Project Proponent ought to take 9 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. clearance from the SCNBWL as well. The relevant portion is reiterated below:
Clearance Project/Activity Project/Activity Project/Activity Category is Notified ESZ outside PA outside PA in Around PA or in wherein ESZ is area which is notified ESA not or ESZ part of Tiger Notification is Reserve or at draft stage linking one PA or Tiger Reserve to another PA or Tiger Reserve Consideration by Project/Activity Project/Activity Approval the National proposed to be covered under NBWL/SCNBWL Board of located within the Schedule of mandatory if Life/Standing notified ESZ/ESA EIA Notification, project/activity Wild Committee shall be regulated 2006 and of is the is of the National and governed by located within 10 proposed to be Board for Wild the concerned km of National located in an Life ESZ Notification. Park or area which (NBWL/SCNBWL) Accordingly, Sanctuary shall forms part of a activities require Tiger Reserve or prohibited under consideration by area linking one the ESZ/ESA the PA or Tiger Notification shall NBWL/SCNBWL. Reserve with not be another PA or undertaken. Tiger Reserve as Whereas, per section regulated and 380(1)(g) of the other activities Wild Life proposed within (Protection) Act, notified ESZ 1972.
around National
Park or Sanctuary
shall require
consideration by
the
NBWL/SCNBWL,
is such activity is
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OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
covered under the
EIA Notification.
2006.
10. Additionally, in In Re: T.N. Godavarman Thirumulpad v. Union of India and Others (2023 SCC Online SC 504), the Hon'ble Supreme court upheld the OM of MoEF&CC (Forest Conservation Division) dated 17.05.2022 and held that:
"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 February 2011 and so also the provisions contained in the ESZs notifications pertaining to the respective Protected Areas with regard to prohibited activities, regulated activities and permissible activities;
(ii) 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 17 May 2022 issued by MoEF&CC.
67. All the other present I.As shall stand disposed of in terms of the above.
No costs."
11. The National Tiger Conservation Authority (NTCA) Gazette Notification No. 15-31/2012/NTCA dated 15.10.2012 provides as follows:- 11
OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
"Section 6. General reasons for tiger decline in areas outside tiger reserves. The reasons for tiger decline in areas outside tiger reserves and protected areas are as below: Degradation of forest status outside Protected Areas and Tiger Reserves owing to:
- Human pressure
- ecologically unsustainable land uses.
- Fragmentation leading to loss of gene flow from source populations.
Section 7. Present approach to tiger conservation. "Owing to habitat fragmentation on account of ecologically unsustainable land uses, biotic pressure and poaching, the following approach is imperative."
Section 7.3.3. The buffer area, absorbs the "shock" of poaching pressure on populations of tiger and other wild animals. In case of severe habitat depletion in buffer areas, the source population would get targeted and eventually decimate.
Section 15.3. The tiger reserves are faced with ecological disturbances and various other problems. Fragmentation of habitats occurs owing to overuse of forest habitats, apart from conflicting land uses leading to loss of habitat...... Section 16.5 (para 2) "The fringe areas around tiger reserve have corridor value, and their ecological sustainability is important to prevent the area from becoming ecological sinks on account of overuse of resources and "unwise land use".
12. Hon'ble Supreme Court of India in Civil Appeal No. 3438-3439/2020, (Arising out of SLP (C) No. 17313-17314/2011), vide order dated 14.10.2020, in Hospitality Association of Mudumalai vs. In Defence of Environment and Ors. held as follows:-
"36. Overtime, several environmental legislations including the Indian Forest Act, 1927 and the Wildlife Act have been enacted 12 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. 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 vs. Murad Ali Khan! 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".
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 has been the "civilized man" operating directly through excessive commercial hunting or. more disastrously, indirectly through invading or destroying natural habitats.
13 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
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 forests and wild life and to have compassion for living creatures."
13. In T.N. Godavarman Thirumulpad vs Union of India & Ors. Hon'ble the Supreme Court held that the approach of the Court in dealing with complaints of environmental degradation has been laid down in an order passed on 09.05.2022 in connection with another set of applications. In this Order, it has been observed and held:
"15 While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation: at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment................14
OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
16. In Vellore Citizens' Welfare Forum v. Union of India, this Court held that the Precautionary Principle is an essential feature of the principle of 'Sustainable Development. It went on to explain the precautionary principle in the following terms:
i. Environmental measures by the State Government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation.
ii. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
iii. The "onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.
17. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake, Precautionary duties must not only be triggered by the suspicion of concrete danger but also by justified concern or risk potential.
18. A situation may arise where there may be irreparable damage to the environment after an activity is allowed to go ahead and if it is stopped, there may be irreparable damage to economic interest. This Court held that in case of a doubt, protection of environment would have precedence over the economic interest. It was further held that precautionary principle requires anticipatory action to be taken to prevent 15 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
harm and that harm can be prevented even on a reasonable suspicion, Further, this Court emphasises in the said judgment that it is not always necessary that there should be direct evidence of harm to the environment."
While dealing with the applications in the present set of proceedings, we shall follow the same principles.
Tigers are a keystone species, crucial for the integrity of the ecosystems in which they live. In short, when tigers thrive, the whole ecosystem thrives. The buffer zone takes care of the spill over population of tiger and other species by providing area for dispersal and suitable habitat to tiger and other species dispersing from adjoining connecting corridors of Pench and Melghat Tiger Reserve. The area is very important for genetic diversity and gene flow in the Satpura Maikal landscape. This is vital for keeping tiger population sustainable in the landscape. The decision to allow such activities will be disastrous to the long-term survival of tiger species and the ecosystem.
14. Notices were issued to the respondents and reply have been submitted. While dealing with the matter the Tribunal also constituted an Expert Committee to visit the site and submit the factual and action taken report. In compliance thereof, the members of the committee visited the site and submitted the report as follows:-
1.0 Issue raised in the petition:
Under the Regional Connectivity Scheme (RCS) UDAN 5.0 scheme of Ministry of Civil Aviation GOI, with an aim to promote commercial air lines to operate in regional areas where air connectivity is not available by introducing enhanced aviation infrastructure & air connectivity, the expansion of Air strip located at Pachmarhi is selected for expanding upto 1800m. The site is owned by Madhya Pradesh State Govt., located within 200 m from the nearest Protected area boundary of the Satpura Tiger Reserve falling in the Eco-Sensitive Zone (ESZ) i.e. 16 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
Pachmarhi Hills in Narmadapuram District of Madhya Pradesh and inside UNESCO Biosphere Reserve of Pachmarhi.
The expansion is being carried out without any statutory permission viz. Environment Clearance, Wildlife Clearance, approval of National Tiger Conservation Authority and is against the provisions of the notified Eco-Sensitive Zone (ESZ) notification.
2.0 Observations:
The committee along with the applicant and other officials visited the site on 29th March 2024 to record the factual status of the site & report the work progress. Copy of the Panchnama is enclosed as Annexure-II. Under the Regional Connectivity Scheme (RCS) UDAN 4.2, Pachmarhi-Indore-Pachmarhi was identified and route has been awarded to M/s Big Charter Private Limited with 19-seater aircraft. Copy of letter dated 9.6.2023 is enclosed as Annexure-III. The work with a contract value of Rs. 919.38 Lakhs was awarded to M/s Sarthi Construction & Infra Pvt Ltd., Gwalior vide letter dated 27.5.2022. The contractor has started earth work for levelling the airstrip in about 800m. It was noted that the work stopped since December 2022 in light of the pending revised estimate & other necessary approvals. The revised estimate also has been sent by EE PWD Division No. 1, Narmadapuram vide letter dated 01.09.2023 to S.E PWD Circle Narmadapuram for a contract value of Rs. 61.17 Crores for construction of Air strip including apron, isolation way, internal roads, approach road, boundary wall, I- type quarters (2 Nos.), entrance & exist gates, small toilet, drainage, culvert and electrification work. As submitted by PWD, Narmadapuram Om to1400m airstrip is to be restored and from 1400-2000m it is to be expanded.
Following are the few major observations of the committee recorded on the day of visit:
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OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
i. The geo-location of the Air strip, Pachmarhi is 22.459626 N, 78.402282 E. Field.
ii. No construction related activities were on-going at site but the remnants of the past ground preparation work were seen during the site visit. As submitted by Sh Sanjay Raykwar, Executive Engineer, PWD Narmadapuram, the expansion work was stopped since December 2022 as appointment of the expert advisor & revised estimation was still pending.
iii. A large patch of the airstrip was dug off on the right side to excavate the soil and used in leveling to create appropriate slope. The approx. length & average width of the air strip as measured was 1300m & 82m respectively. The measurement of the excavated area and quantification of the soil was carried out by the Satpura Tiger Reserve staff and it was submitted that the excavation was done in a length of 500m with average width of 24.84m & average depth of 4.10m. The total excavated volume is 50922 m³. The copy of the same is enclosed as Annexure-VI. However, as submitted by, PWD the quantity of dugged out soil is approximately 57328.54 m³ and area of digging is about 31680.00 m². Details given under Annexure-IV. As PWD department is the executing agency for this expansion work, its measured excavated soil quantity i.e. 57328.54m³ has been considered.
As submitted, the nearest pillar (Munnara i.e. M31 GPS location:
22o27'18.07''N 78o23'49.07''E) of the CORE ZONE of Satpura Tiger Reserve is only 162m away from the airstrip/excavated area.
iv. The details of the height of the airstrip from sea level was measured from all the 4 corners and is presented in the table below:18
OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
Corner Height from GPS Location
point the sea level
A 1089 m 22o27'22.07''N
78o23'52.18''E
B 1090 m 22o27'20.46''N
78o23'53.86''E
C 1072 m 22o27'48.95''N
78o24'25.14''E
D 1078 m 22o27'50.89''N
78o24'22.86''E
v. Below tabulated are the details of the structures made near
the airstrip:
S.NO. Name of the Length Width (in GPS location Structure meter) 1 Building 25.30 m x 12.20m 22o27'45.88''N 78o24'13.58''E 2 Staff Quarter 16.90mx 3.95m 22o27'39.09''N 78o24'08.88''E 3 Temporary Tin 14.45m x 4.00m 22o27'38.71''N Shed 78o24'09.04''E 4 Public Toilet 11.70m x 7.95m 22o27'51.89''N 78o24'25.89''E 5 Staff Bathroom 5.25m x 2.90m 22o27'38.77''N 78o24'08.55''E vi. The aerial distance of airstrip from natural features are as given below:
Natural Direction which Aerial Distance Height from Structure it situated from airstrip to mean sea level Airstrip Natural (msl) Structure Dhoopgarh West 2468 m 1352 m Pachmarhi Hill North-East 455.94m -
vii. During the field visit, it was observed that trees were cut down near the airstrip area. Later, the counting of the cut down trees was carried out on 2.4.2024 by the forest department. Total 333 trees were cut down (species of trees are Amaltas, Saal, Aamla, Sumer, Sindoor, Jamun, Achar, Dudhi, Harra, Beeja and lendiya etc). The classification of 19 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
the measured diameter was done in 8 categories. The details are as tabulated below:1. 21-30 30 2. 31-45 78 3. 45-60 102 4. 61-90 94 5. 91-120 24 6. 121-150 4 7. 151-180 1
8. 181 & above -
viii. The Pachmarhi revenue land record states that the land under airstrip was recorded under Sheet No. 32 plot no. 03 Rakba 351063 SQFT, Sheet No. 33 Plot No. 02 Rakba 142845 SQFT, Sheet No. 36 plot no. 03 Rakba 191645 SQFT, Plot No. 04 Rakba 106239 SQFT is in the name of Public Works Department.
3.0 Status of the statutory permissions 3.1 Violation under Eco Sensitive Zone (ESZ) Ministry of Environment, Forest & Climate Change has notified Satpura Tiger Reserve, located at Narmadapuram (Madhya Pradesh) vide notification S.O. 2538 (E) on dated 9th August 2017. The Satpura Tiger Reserve is spread over an area of 2133.30 square kilometres of which 1339.26 square kilometres is Core Critical Tiger Habitat and 794.04 square kilometres is the buffer area. The total areas of Satpura National Park are 524.37 square kilometre which along with Pachmarhi Sanctuary 491.62 square kilometre and Bori Sanctuary of 485.72 square kilometre in the State of Madhya Pradesh constitute a total area of 1501.71 square kilometre. This reserve is part of the largest Tiger Habitat in the world which includes Chhindwara, Narmadapuram, Betul, Harda, Khandwa and Melghat extending over 10,000 square kilometer. This landscape is most vital for survival of tiger and this area has historically been renowned for Tiger, Gaur and Sambhar. At least 14 endangered species of mammals, birds and reptiles inhabit these forests. The flying squirrel, Indian giant squirrel and Leaf 20 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
nosed bats must be regarded among the most sensitive to habitat changes.
The Eco-sensitive Zone is spread over an area of 1079.43 square kilometres which includes 794.04 square kilometre buffer area of Satpura Tiger Reserve and forest areas of other adjoining divisions (Within two km. periphery) of 285.39 square kilometres. The Pachmarhi is identified inside the buffer area of the Protected Area.
Under the point no. 4 "List of activities prohibited or to be regulated within the Eco-sensitive Zone" of the notification, prohibited & regulated activities are described. ➢ Under Prohibited activities S.No. 13 "Construction activities" following is stated viz.
a) No new commercial construction of any kind shall be permitted within one kilometer from the boundary of the Protected Area or upto extent of the ESZ whichever is nearer.
As the expansion work of the airstrip is already awarded and work of levelling started in 800m strip by the contractor & further work was stopped since December 2022 awaiting the appointment of the expert advisor & revised estimate. This revised estimate includes apron, isolation way, internal roads, approach road, boundary wall, I- type quarters (2 Nos.), entrance & exist gates, small toilet, drainage, culvert and electrification work. Further, the nearest pillar (Munnar i.e. M31 GPS location: 22°27′18.07" N, 78°23′49.07"E) of the CORE ZONE is only 162m away from the airstrip/excavated area.
21 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
Such activities are prohibited under the ESZ notification.
➢ Under Prohibited activities S.No. 16 "Felling of Trees" following is stated viz.
(a) There shall be no felling of trees on the forest or Government or revenue or private lands without prior permission of the competent authority in the State Government.
(b) The felling of trees shall be regulated in accordance with the provisions of the concerned Central or State Act and the rules made thereunder.
As per the survey report of the forest department dated 2.4.2024, total 333 trees were cut down in the area of airstrip expansion project.
NO permission was sought from the PWD department from Competent Authority for cutting the trees.
➢ Under Prohibited activities S.No. 23 "Under taking other activities related to tourism like over flying the ESZ area by hot air balloon, helicopter, drones, Microlites, etc." following is stated viz. "Regulated under applicable law"
Under the Regional Connectivity Scheme (RCS) UDAN 4.2, Pachmarhi-Indore-Pachmarhi was identified and route has been awarded to M/s Big Charter Private Limited with 19-seater aircraft. The work with a contract value of Rs. 919.38 Lakhs was awarded to M/s Sarthi Construction & Infra Pvt Ltd. Gwalior vide letter dated 27.5.2022. The contractor has started earth work for levelling the airstrip in about 800m. The work stopped since December 2022 in 22 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
light of the pending revised estimate & other necessary approvals. The revised estimate also has been sent by EE PWD Division No. 1, Narmadapuram vide letter dated 01.09.2023 to S.E PWD Circle Narmadapuram and is having a contract value of Rs. 61.17 Crores for construction of Air strip including apron, isolation way, internal roads, approach road, boundary wall, I type quarters (2 Nos.), entrance & exist gates, small toilet, drainage, culvert and electrification work. As submitted by PWD, Narmadapuram Om to1400m airstrip is to be restored and from 1400-2000m it is to be expanded.
Further, it was noted that the activities involving landing & taking off are not clearly stated under the prohibited activities. However, the committee noted that such activities (i..e, where a 19-seater aircraft would fly between the route of Indore-Pachmarhi-Indore and will generate heavy noise pollution during its landing & taking off inside the Satpura Tiger reserve) and the airstrip being located very near to protected area and inside the ESZ boundary, needs to be discouraged.
As per the notification, the monitoring committee shall monitor the compliance of "The activities that are covered in the Schedule to the notification of the Government of India in the erstwhile Ministry of Environment and Forests number S.O. 1533 (E), dated the 14th September, 2006, and are falling in the Eco-sensitive Zone, except for the prohibited activities, shall be scrutinized by the Monitoring Committee based on the actual site-specific conditions and referred 23 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
to the Central Government in the Ministry of Environment, Forests and Climate Change for prior environmental clearances under the provisions of the said notification".
NO such permission was obtained by the Project Proponent through monitoring committee.
Recently vide letter dated 11.9.2023, 19.12.2023 & 20.12.2023 the PWD department has applied to Chairman, Monitoring committee for the necessary approval.
3.2 Violation under Environmental Clearance As per the EIA notification S.O. 1533 (E) dated 14th Sept 2006 under the Schedule "list of projects or activities requiring prior environmental clearance" under 7(a) Airports "All projects including airstrips which are for commercial use"
falls under Category "A", however exemption is provided for Airstrips, which do not involve bunkering/refuelling facility and Air Traffic Control.
As under the RCS scheme, route of Indore-Pachmarhi- Indore is awarded to M/s Big Charters for 19-seater aircraft, which falls under the purview of commercial use. The airstrip is only 162m away from the nearest pillar of the protected Area. Also, the airstrip is being developed in the area which is identified/notified as ESZ and biosphere. Therefore, the proposed airstrip expansion activity needs to be considered for the prior environmental clearance requirement.
The project proponent has NOT obtained any Environmental Clearance, 3.3 Violation under Wildlife Clearance:
As the Satpura Tiger Reserve is notified as Eco-Sensitive Zone and Pachmarhi airstrip falls under the buffer area of the same, 24 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
provisions of the National Tiger Conservation Authority (NTCA) letter dated 28.11.2018 will be applicable where in following is stated:
1. Project proposal involving area falling within a Tiger Reserve:
In respect of projects falling within a notified tiger reserve, be it core or buffer, irrespective of area involved, the project proposal needs wildlife clearance. Therefore, the project proponent shall have to submit proposal to the Chief Wildlife Warden of the concerned State and if found sustainable, the proposal shall be placed before the State Board for Wildlife (SBWL). The proposal, if agreed upon shall be forwarded for consideration of the Standing Committee (SC) of the National Board for Wildlife (NBWL). The Standing Committee of NBWL shall refer it to the National Tiger Conservation Authority for its advice as per provisions of section 38 (0) (1) (b) of the Wildlife (Protection) Act, 1972. The NTCA shall after due scrutiny advice the SC of NBWL for allowing or disallowing the project. There may be areas within the buffer where legal status of the land can be other than forest. Herein too, section 38 (0) (1) (b) shall be invoked and the Chief Wildlife Warden can refer the matter directly to the NTCA.
The project proponent has NOT obtained
approval of NTCA.
3.4 Violation under Consent to Establish (CTE) & Consent to Operate (CTO) As per the industrial categorization notification dated 15.06.2017 &10.12.2021 of Madhya Pradesh Pollution Control Board (MPPCB), under S. No. 23 & S.No. 18 respectively of the Red Category list "Airports and commercial air strips" are 25 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
categorized. As the airstrip developed at Pachmarhi under RCS scheme for flying 19-seater aircraft, this project falls under the category of RED and project proponent requires to obtain CTE & CTO from MPPCB. However, the project proponent has NOT obtained the Consent to Establish & Consent to Operate. 4.0 Action Taken Report i. Satpura Tiger Reserve, Narmadapuram office has made multiple communications with EE, PWD, Narmadapuram for providing the details on the permission obtained under the provisions of the ESZ notification and others, however no reply provided by the PWD office.
ii. Recently vide letter dated 11.9.2023, 19.12.2023 & 20.12.2023 the PWD department has applied to Chairman, Monitoring committee for the necessary approval (as per Annexure-X). Further, vide letter dated 2.1.2024 to Satpura Tiger Reserve, has requested for required permission.
iii. Presently, since December 2022 the expansion work was stopped in light of awaited revised estimate & appointment of expert advisor agency.
iv. A letter has been issued by RO, MPPCB Mandideep vide dated 23.04.2024 to EE, PWD, Narmadapuram for not obtaining statutory permissions before starting any construction activities at Pachmarhi air strip and to submit their explanation in this regard. Reply is not received till date. A letter was also issued to Chief Conservator of Forest and Field Director, Satpura Tiger Reserve Narmadapuram to submit action taken by the department. Copies of letters are enclosed as Annexure- XIV. Office of Field Director, Satpura Tiger Reserve, Narmadapuram (M.P) has issued letters to EE, PWD, Narmadapuram and Sub Divisional officer (Revenue), Pipariya, Narmadapuram to submit necessary 26 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
permissions & explanation regarding cutting of trees & their transportation, excavation of soil & construction of building from the concerned authorities.
5.0 Recommendations i. Project proponent shall not re-start the work of airstrip Pachmarhi as the statutory permissions required under the provisions of ESZ, Wildlife Clearance, Environmental clearance and industrial categorization etc. are not obtained. However, the project proponent may explore alternative sites outside the protected area for the proposed air strip meant for commercial operations.
ii. Panchmarhi is critical habitat area for tigers and endangered vulture population. Hence, the project proponent is directed to undertake detailed studies on the impact of flight operations in the ESZ Area on the terrestrial wildlife and Avian Fauna of the area before the execution of the project.
iii. The airstrip being located inside the buffer zone of the protected area, Project proponent shall obtain needful clearance from National Board for Wildlife clearance (NBWL) in consultation with National Tiger Conservation Authority and local Forest Department.
iv. The said expansion of air strip falls under the violation category of EIA Notification, 2016 taking into consideration the land development work undertaken so far. It may be noted that an Standard Operating Procedure (SOP) notified by MOEFCC in July, 2021 laid out the policy for identification and handling of violation cases. However, the July, 2021 notification was stayed by Hon'ble Supreme Court. In the absence of an appropriate guidelines, the environment compensation for loss/damage/degradation to the environment (due to the airstrip expansion activity) 27 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
shall be retrieved from the project proponent based on a separate environmental damage assessment study to be undertaken through an institute of repute like IITs, NITS, NEERI, etc. The costs towards the execution of the study and the implementation of the recommendations/outcomes of the study shall be paid by the project proponent (i.e., PWD) to the MPPCB under polluter pays principle. Six-
monthly progress of the study and its
implementation shall be reviewed by a joint
committee comprising of officers from MOEFCC, RO Bhopal, CPCB, RD Bhopal, MP State Forest Department, Panchmarhi and MPPCB."
15. The applicant has filed the objection against the report submitted by the Joint Committee and argued that the Joint Committee report has failed to report that the proposed restoration and further expansion of the airstrip to 2000m would necessitate levelling of the present slope along the length and width of the airstrip, resulting in additional excavation work of the sloped airstrip to proceed closer towards the Satpura Tiger Reserve's and Pachmarhi Biosphere CORE ZONE boundary Munara Pillar M31 (disrupting the inviolate state of the Core Zone, violating the Wild Life (P) Act, 1972). This would need carrying an enormous quantity of excavated soil to the opposite end of the airstrip. The further excavation, hauling and levelling would produce a significant amount of noise and air pollution from the heavy earth moving machinery used. The same violations occurred at Pachmarhi airstrip during prior excavation activities, illegal trees felling and trunk removal. The ecologically destructive project continued in violation of the established laws. These activities violate the following provisions of the Satpura Tiger Reserve MP's Eco Sensitive Zone (ESZ) notification dated 09.08.2017.
28 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
Measures to be taken by State Government. - The State Government shall take the following measures for giving effect to the provisions of this notification, namely: -
6) Noise pollution. - Prevention and Control of noise pollution in the Eco-sensitive Zone shall be complied with in accordance with Noise Pollution (Regulation And Control) Rules, 2000 under the Environment (Protection) Act, 1986.
(7) Air pollution. - Prevention and control of air pollution in the Eco-sensitive Zone shall be complied with in accordance with the provisions of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981) and rules made thereunder.
(15) Vehicular Pollution. - Prevention and control of Vehicular Pollution shall be complied with in accordance with applicable laws and the efforts to be made for use of cleaner fuel for example CNG, LPG, etc. (17) Protection of Hill Slopes. -The protection of hill slopes shall be as under: - (b) No construction on existing steep hill slopes or slopes with a high degree of erosion shall be permitted.
16. It is further argued that Hon'ble the High Court of Jodhpur in WP No. 5937/2003, vide-order dated 16.04.2014 in the matter of unauthorised structures in Pachmarhi, directed as follows :-
1. ".....W.P.No.5937/2002 is yet another writ petition pending in this Court for issuing direction to the appropriate Authority to initiate action in respect of unauthorized structures in the Pachmarhi area. It is further prayed that the Authorities shall ensure that no 29 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
further construction is allowed in the said area. It is not in dispute that the interim relief has already been granted directing the Authorities to ensure that no further construction is put up in Pachmarhi area. That interim relief will now operate in W.P.No.11909/2013 being suo motu proceedings initiated by this Court. The present order disposes of the other prayer in the said writ petition to remove unauthorized structures put up in Pachmarhi area being involved in W.P.No.11909/2013. As a result, even this petition (W.P.No.5937/2002) need not be continued further. No appearance has been made on behalf of the petitioner when this writ petition was called out. As a result, we dispose of this petition but direct continuance of the interim arrangement ordered in this petition as having been passed in the pending W.P.No.11909/2013 till the disposal thereof. In view of disposal of the above noted writ petitions, all pending Interim Applications in the respective petitions are also disposed of.)"
In the expert committee report page No. 19, Sr. No. 2, letter Dt. 05.4.2024, the project proponent (PWD) Executive Engineer Narmadapuram stated that after the clearance from CWLW, "the application for permission from Hon'ble High Court MP would be submitted," which contradicts their own statement in Annexure -13 Page No. 66 (1) letter Dt. 20.12.2023 stating that the construction is being done on the demand of the army and the Hon'ble High Court MP W.P No. 5937/2002 order Dt 12.11.2003 doesn't prohibit the work done for army.
The unauthorized expansion, excavation, construction of an RCC building relating to the flight operation, and tree cutting at the Pachmarhi airstrip on Nazul land, inside the buffer zone and close (within 200m) to the core area boundary of Satpura Tiger Reserve MP, are unrelated to the Hon'ble High Court Jabalpur aforementioned judgment in W.P 30 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
5937/2002. Rather authorities were directed to ensure no further construction is put up in Pachmarhi area. The work on airstrip was not done by the army on military land. The fact is that till date no airplanes have landed on the Pachmarhi airstrip in almost three decades, thus assertions about threatening the country's security and the necessity for landing by army are absurd. Military helicopters seldom land at the Pachmarhi airstrip, and when they do, the flight path crosses over the Satpura Tiger Reserve's Protected Area, thus disrupting the CORE area, which is intended to be inviolate under the law (Wild Life Protection Act 1972) for tiger conservation. Tiger is a keystone species protected under Schedule-I of WL(P) act 1972. The local Avi-fauna are startled during such helicopter operations. The proposed boundary wall will lead to undesirable tiger habitat fragmentation. If the project is deemed to be feasible i.e. only after the issuance of mandatory clearances from central and state government departments then it would go through obstacle limitation surface survey OLS, as per Ministry of Civil Aviation Notification G.S.R. 751(E) N. Delhi Dt. 30.9.2015."
17. NTCA Circular Dated. 28.11.2018. F. No. 7-9/2010-NTCA (Part). Regarding:
Compliance of the statutory provisions in context of infrastructure Development Projects provided that project proposal involving area falling within a Tiger Reserve: In respect of projects falling within a notified tiger reserve, be it core or buffer, irrespective of area involved, the project proposal need wildlife clearance and NTCA No. PS-MS (NTCA)/2009-Miscle.
Dated the 28.04.2009 provide for plying of diesel vehicles/mini-trucks / canters inside core/ critical tiger habitats as follows :-
"As you are aware, the core /critical tiger habitats of tiger reserves notified under section 38 V of the Wildlife (Protection) Act, 1972, are required to be kept inviolate for tiger conservation. However, tourism infrastructure is present in many core areas, and visitors are permitted in 31 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
such tourism zones, and guidelines have been issued from this end for phasing out the tourism activities from such areas to the outer buffer zones. Till the desired tranquillity is achieved in the core /critical tiger habitat, every care should be taken to ensure that minimum noise pollution is caused in such areas due to plying of canters / mini- trucks, another diesel vehicles transporting tourists. In this context, it is suggested that every effort should be made for promoting CNG run vehicles using Bio-fuel, while reducing the use of diesel / other polluting vehicles. It is pertinent to add that the Hon'ble Apex Court has also strongly recommended the use of CNG vehicle in our urban landscape to reduce pollution.
[Aeroplanes/Helicopters take-offs and landings from Pachmarhi Airstrip will violate the law by producing excessive Noise Pollution, which will disturb the peripheral CORE ZONE's inviolate state. Engine exhaust smoke will pollute the air. Vehicles plying to and from the airstrip would cause the same. The same would be caused by vehicles driving to and from the airstrip.]
4. NTCA STATUS OF TIGERS 2022:
The information generated from the past four cycles has resulted in major changes in policy and the management of tiger populations. It has also provided scientific data to fully implement provisions of the Wildlife (Protection) Act 1972, in letter and spirit. The major outcomes that were a direct or indirect consequence of information generated by the monitoring exercises were: 1) tiger landscape conservation plans, 2) designation and notification of inviolate critical core and buffer areas of tiger reserves, 4) recognition of tiger landscapes and the importance of the corridors and their physical delineation at the highest levels of governance.
5. Central Indian Highlands and Eastern Ghats Landscape- ...The region contains five biosphere reserves 32 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
and is home to the largest number of tigers and contains the largest tiger-occupied forest in the country. The forests of this region are under threat from various activities, despite their high biodiversity and conservation significance. Two endangered subspecies, the Central Indian Wild Buffalo and Hard Ground Barasingha, are now confined to the tiger reserves in this landscape. The tiger landscape is further sub-divided in 13 smaller tiger landscapes:
(viii) Satpuda - Melghat ...
18. The applicant in person, a retired pilot, has further argued that the Wildlife Institute of India, vide report dated 09-12-2016, has submitted the noise report, the copy of which has been annexed as Annexture 78 as follows:-
1. "BOX 3.2 Categories defining sensitive areas • Environmentally sensitive areas • Scenic areas • mountains/hills • Biosphere reserves • National parks and wildlife sanctuaries • Critical habitats important for threatened, rare, or restricted range species • Tiger reserves, elephant reserves, turtle nesting grounds • Habitats of migratory birds.
2. NOISE INDUCED PHYSIOLOGICAL AND BEHAVIORAL CHANGES: - But the fact remains that a large number of wild animals rely heavily on auditory signals for their sustenance, defence and reproduction. The precautionary principle suggests that all artificial sources of noise in a natural ecosystem should be minimized.33
OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
3. HABITAT LOSS AND FRAGMENATION: .... The fragmentation of habitat into spatially isolated parts is a major cause of the decline of biodiversity; e.g. habitat loss and fragmentation of amphibian populations worldwide has led to a substantial decline in their numbers during the last century (Stuart et al. 2004). Habitat fragmentation has become a global issue associated with most linear forms of infrastructure development, including road and rail. The fragmentation process initiates a shrinking in available habitat, which in turn leads to a progressive reduction in species diversity in the landscape, with consequent isolation of species (Figures 4.3 and 4.4). The contraction in available habitat together with isolation becomes the most important impact (Harris 1984).
IMPACTS OF HEADLIGHT GLARE ON WILDLIFE: Headlight glare can interfere with the flights of birds and bats. It can disrupt homing behaviour and mating calls (croaking) of amphibians in wetland habitats, and influence navigational ability and decline in population of reptiles (Beier 2006; Perry & Fisher 2006). For migrating and dispersing animals, highway lights can be disorienting.
INTRODUCTION: Wild animals rely on sound for effective navigation, intra and inter-specific communication, avoiding danger and finding food for survival. Excessive noise caused by engines and emission of exhaust, aerodynamic sources, tyre/pavement interactions and movement of trains have multiple effects on ecosystems. Roads and traffic alter the physical and acoustic environment of species and ecological communities, both during construction and when a road is open 34 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
to traffic. While the construction-related noise produced during earthworks, pile driving and road surfacing is usually of limited duration, the traffic-induced noise persists over time. Noise may interfere with the acoustic signals that are used by various species for navigation, maintaining or establishing contact with members of a family or larger social group. Signals convey many types of message, including distress or danger, the presence of food, and extent of territory (Fletcher & Busnel 1978). Noise may harm not only individual species, but it may also alter species' relationships, as in the case of song birds that depend on acoustics for defending territories, attracting mates, begging for food (by fledglings in a nest), and alarm calling (Slabbekoorn & Halfwerk 2009). Noise pollution is one of many factors contributing to the depletion of wildlife populations. Limited studies in India indicate a lower abundance and variability of birds in forests affected by air and noise pollution than in non-polluted forest in the same bio-geographic zone (Saha & Padhy 2011).
• Laboratory experiments and field studies have suggested that wildlife are adversely impacted by noise pollution in the following four ways:
• Hearing loss, resulting from noise levels of 85 decibels dB(A) or greater.
• 'Masking', which is the inability to hear important environmental cues and animal signals because of other background noise (Warren et al. 2006).35
OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
• Behavioural effects, which vary greatly between species and according to the characteristics of the noise, resulting in, for example, abandonment of territory and failed reproduction (Barber et.al. 2009).
such as increased heart rate and respiration, and general stress reaction (Francis et.al. 2009).
Although the generally accepted definition of 'excessive noise' is an increase of 10 dB(A) or greater, the sensitivity of different groups of wildlife varies. According to the US Department of Transportation, Federal Highway Administration (https://www.fhwa.dot.gov/), they can be summarised as:
• Mammals: 10 Hz to 150 kHz; sensitivity to -20 dB(A).
• Birds (more uniform than mammals): 100 Hz to 8-10 kHz; sensitivity at 0-10 dB(A).
• Reptiles (poorer than birds): 50 Hz to 2 kHz; sensitivity at 40-50 dB(A).
• Amphibians: 100 Hz to 2 kHz; sensitivity from 10-60 dB(A).
The air quality standards. It directs State Governments to categorise areas into 'industrial', 'commercial', 'residential' or 'silence' areas or zones for the purpose of implementing noise standards for different areas (Table 11.1). Government of India, through the Noise Pollution Regulation and Control Rules (2000), prescribes ambient prescribes ambient air quality standards. It directs State Governments to categorise areas into 'industrial, 'commercial, 'residential or 'silence' 36 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
areas or zones for the purpose of implementing noise standards for different areas (Table 11.1)."
"Table 11.1. Ambient Air Quality Standards in respect of noise.
Area code Category of area Limits in db(A)*
zone
Day time Night time
Industrial area 75 70
Commercial area 65 55
Residential area 55 45
Silance Zone 50 40
Note:
1. Day time shall mean from 6.00 a.m. to 10.00 p.m.
2. Night time shall mean from 10.00 p.m. to 6.00 a.m.
3. Silence zone' is an area comprising not less than 100 m around hospitals, educational institutions, courts, refigious places or any other area which is declared as such by the competent authority.
4. Mixed categories of areas may be declared as one of the four abovementioned categories by the competent authority.
*dB(A) Leg denotes the time weighted average of the level of sound in decibels on scale A which is relatable to human being.
A "decibel" is a unit in which noise is measured.
"A" in dB(A) Leq. denotes the frequency weighting in the measurement of noise and corresponds to frequency response characteristics of the human ear, Leq: is an energy mean of the noise level over a specific period."37
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[AS A RESULT, THE SOUND VALUES AS MENTIONED IN TABLE ARE APPLICABLE TO HUMANS RATHER THAN AVIFAUNA AND ARE INAPPLICABLE NEAR THE CORE AREAS OF TIGER RESERVES AND BIOPSHERE, WHICH ARE SPECIFICALLY NOTIFIED TO BE INVIOLATE. WILDLIFE HAVE DIFFERENT SOUND TOLERANCE LEVELS THAN HUMAN BEINGS. AEROPLANE AND HELICOPTER OPERATIONS EXCEED THE AMBIENT NOISE VALUES.] "
19. Hon'ble Supreme Court of India in T.N. Godavarman Tirumulpad vs. Union of India & Ors.in WP No. 202/1995, IA No. 20650/2023 has held -
"The tiger perishes without the forest and the forest perishes without its tigers. Therefore, the tiger should stand guard over the forest and the forest should protect all its tigers."
This is how the importance of the tigers in the ecosystem has been succinctly described in 'Mahabharta'. The existence of the forest is necessary for the protection of tigers. In turn, if the tiger is protected, the ecosystem which revolves around him is also protected. The tiger represents the apex of the animal pyramid and the protection of their habitat must be a priority. "A healthy tiger population is an indicator of sustainable development in the 13 tiger range countries"1 In spite of such an importance given to the tiger and many statutory provisions enacted for the conservation and protection of the tiger, the present case depicts a sorry state of affairs as to how human greed has led to devastating one of the most celebrated abodes of tigers i.e. the Corbett Tiger Reserve. 1 Midori Paxton 38 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
When we consider this issue, it will also be apposite to refer to the restoration experiment at the Yellowstone National Park of the United States of America.
The impact of the absence of carnivores in a forest and the regenerative effect on their re-introduction was witnessed in the recent past in the famous Yellowstone National Park.
Wolves were hunted down by the mankind and the last recorded wolf in the park was shot down by a park ranger in the year 1926. Resultantly, owing to lack of apex predators in the park, the population of deer and other herbivores rose significantly. Efforts made by humans to control the herbivore population proved unsuccessful and resultantly these animals grazed away the vegetation which had the cascading effect of soil erosion and depletion of forest. As an ambitious restoration experiment, the scientists re-introduced a pack of wolves in the Yellowstone National Park in the year 1995.
Once the wolves arrived, even though few in number, the same had remarkable effects. The obvious outcome of such was reduction in soil erosion due to recovery of the valley and the vegetation. So, a small number of wolves left an indelible mark in the transformation of the first national park of the world, the Yellowstone National Park and its physical geography within a short period of around 20 years. This kind of regenerative effect cannot even be thought of by human efforts whatever the magnitude be thereof. Looking at the empirical evidence of the impact of carnivores in maintaining the ecosystem of forests, the efforts of tiger conservation in the Jim Corbett National Park, an iconic National Park of this country is imperative and of utmost importance."
20. The statement of objects and reasons for the WLP Act would reveal that the enactment of the WLP Act was necessitated since it was noticed that there was rapid decline of India's wild animals and birds, which was one of the 39 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. richest and most varied in the world. Some wild animals and birds had already become extinct in the country and others were in danger of being so. Areas that were once teeming with wildlife had become devoid of it and even in Sanctuaries and National Parks, the protection afforded to "(20A) "National Board" means the National Board for Wild Life constituted under Section 5A;"
16. Sub-section (21) of Section 2 of the WLP Act defines "National Park", which reads thus:
"(21) "National Park" means an area declared, whether under Section 35 or Section 38, oг deemed, under sub-
section (3) of Section 66, to be declared, as a National Park;"
17. Sub-section (24A) of Section 2 of the WLP Act defines "protected area", which reads thus:
"(24A) "protected area" means a National Park, a sanctuary, a conservation reserve or a community reserve notified under Sections 18, 35, 36-A and 36-C of the Act;"
18. Sub-section (26) of Section 2 of the WLP Act defines "sanctuary", which reads thus:
"(26) "sanctuary" means an area declared as a sanctuary by notification under the provisions of Chapter IV of this Act and shall also include a deemed sanctuary under sub-section (4) of Section 66;"
19. Sub-Section (36) of Section 2 of the WLP Act defines "wild animal", which reads thus:
"(36) "wild animal" means any animal specified in Schedule I or Schedule II and found wild in nature;"40
OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
20. Sub-section (39) of Section 2 of the WLP Act defines "zoo", which reads thus:
"(39) "zoo" means an establishment, whether stationary or mobile, where captive animals are kept for exhibiting to the public or ex-situ conservation and includes a circus and off-
exhibit facilities such as rescue centres and conservation breeding centres, but does not include an establishment of a licensed dealer in captive animals."
21. Chapter IV of the WLP Act deals with "protected areas". Section 18 provides for "Declaration of sanctuary", which reads thus:
"18. Declaration of sanctuary. (1) The State Government may, by notification, declare its intention to constitute any area other than an area comprised within any reserve forest or the territorial waters as a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomorphological, natural or zoological significance, for the purpose of protecting. propagating or developing wild life or its environment.
(2) The notification referred to in sub-section (1) shall specify, as nearly as possible, the situation and limits of such area.
Explanation. For the purposes of this section, it shall be sufficient to describe the area by
(c) may take such measures, in the interests of wild life, as he may consider necessary for the improvement of any habitat;
41 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
(d) may regulate, control or prohibit, in keeping with the interests of wild life, the grazing or movement of livestock."
23. Section 35 of the WLP Act deals with "Declaration of National Parks", which reads thus:
"35. Declaration of National Parks.-(1) Whenever it appears to the State Government that an area, whether within a sanctuary or not, is, by reason of its ecological, faunal, floral, geomorphological or zoological association or importance, needed to be constituted as a National Park for the purpose of protecting.
propagating or developing wild life therein or its environment, it may, by notification, declare its intention to constitute such area as a National Park:
Provided that where any part of the territorial waters is proposed to be included in such National Park, the provisions of Section 26A shall, as far as may be, apply in relation to the declaration of a National Park as they apply in relation to the declaration of a sanctuary.
(2) The notification referred to in sub-section (1) shall define the limits of the area which is intended to be declared as a National Park.
(3) Where any area is intended to be declared as a National Park, the provisions of Sections 19 to 26-A [both inclusive except clause (c) of sub-section (2) of Section 24)] shall, as far as may animal or captive animal specified in Schedules I except with the previous permission of the Authority.42
OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
(2) No zoo shall acquire, sell or transfer any wild or captive animal except from or to a recognized zoo:
Provided that nothing in this sub-section shall apply to a conservation breeding centre."
27. Chapter IVB of the WLP Act deals with "National Tiger Conservation Authority", Section 38-0 deals with "Powers and Functions of Tiger Conservation Authority", which reads thus:
"38-0. Powers and functions of Tiger
Conservation Authority.-(1) The Tiger
Conservation Authority shall have the following powers and perform the following functions, namely:-
(a) to approve the Tiger Conservation Plan prepared by the State Government under sub-
section (3) of Section 38V of this Act;
(b) evaluate and assess various aspect of sustainable ecology and disallow any ecologically unsustainable land use such as, mining, industry and other projects within the tiger reserves;
(c) lay down normative standards for tourism activities and guidelines for project tiger from time to time for tiger conservation in the buffer and core area of tiger reserves and ensure their due compliance; legal support for better implementation of the tiger conservation plan; 43 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
(j) facilitate ongoing capacity building programme for skill development of officers and staff of tiger reserves; and(k) perform such other functions as may be necessary to carry out the purposes of this Act with regard to conservation of tigers and their habitat.
(2) The Tiger Conservation Authority may, in the exercise of its powers and performance of its functions under this chapter, issue directions in writing to any person, officer or authority for the protection of tiger or tiger reserves and such person, officer or authority shall be bound to comply with the directions:
Provided that no such direction shall interfere with or affect the rights of local people particularly the Scheduled Tribes."
28. Section 38V of the WLP Act deals with "Tiger Conservation Plan", which reads thus:
"38V. Tiger Conservation Plan.-(1) The State Government shall, on the recommendations of the Tiger Conservation Authority, notify an area as a tiger reserve.
(2) The provisions of sub-section (2) of Section 18, sub-
sections (2), (3) and (4) of Section 27, Sections 30, 32 and clauses (b) and (c) of Section 33 of this Act shall, as far as may be, apply in relation to a tiger reserve as they apply in relation to a sanctuary.
(3) The State Government shall prepare a Tiger Conservation Plan including staff development and 44 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
deployment plan for the proper management of each area referred to in sub-section (1), so as to ensure-
(a) protection of tiger reserve and providing site specific habitat inputs for a viable population of tigers, co-predators and prey animals without distorting the natural prey- predator ecological cycle in the habitat;
(b) ecologically compatible land uses in the tiger reserves and areas linking one protected area or tiger reserve with another for addressing the livelihood concerns of local people, so as to provide dispersal habitats and corridor for spill over population of wild animals from the designated core areas of tiger reserves or from tiger breeding habitats within other protected areas;
(c) the forestry operations of regular forest divisions and those adjoining tiger reserves are not incompatible with the needs of tiger conservation.
(4) Subject to the provisions contained in this Act, the State Government shall, while preparing a Tiger Conservation Plan, ensure the agricultural, livelihood, developmental and other interests of the people living in tiger bearing forests or a tiger reserve.
Explanation. For the purposes of this section, the expression "tiger reserve" includes,-
45 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
(i) core or critical tiger habitat areas of National Parks and sanctuaries, where it has been established, on the basis of scientific and objective criteria, that such areas are required to be kept as inviolate for the purposes of tiger conservation.
without affecting the rights of the Scheduled Tribes or such other forest dwellers, and notified as such by the State Government in consultation with an Expert Committee constituted for the purpose;
(ii) buffer or peripheral area consisting of the area peripheral to critical tiger habitat or core area, identified and established in accordance with the provisions contained in Explanation (1) above, where a lesser degree of habitat protection is required to ensure the integrity of the critical tiger habitat with adequate dispersal for tiger species, and which aim at promoting co-
existence between wildlife and human
activity with due recognition of the
livelihood, developmental, social and
cultural rights of the local people, wherein the limits of such areas are determined on the basis of scientific and objective criteria in consultation with the concerned Gram 46 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
Sabha and an Expert Committee constituted for the purpose.
(5) Save as for voluntary relocation on mutually agreed terms and conditions, provided that such terms and conditions satisfy the requirements laid down in this sub-section, no Scheduled Tribes or other forest dwellers shall be resettled or have their rights adversely affected for the purpose of creating inviolate areas for tiger conservation unless-
(i) the process of recognition and determination of rights and acquisition of land or forest rights of the Scheduled Tribes and such other forest dwelling persons is complete;
(ii) the concerned agencies of the State Government, in exercise of their powers under this Act, establishes with the emphasizes on ensuring the ecological and environmental security of the country.
32. A perusal of the aforementioned provisions of the WLP Act would reveal that various measures have been provided under the said Act for the protection of protected areas. No doubt that the definition of "protected area" as defined under sub-section (24A) of Section 2 of the WLP Act only includes a National Park, a sanctuary, a conservation reserve, or a community reserve, which are 47 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
notified under Sections 18, 35, 36A and 36C of the WLP Act. However, the harmonious construction of the various provisions of the WLP Act would reveal that the legislature intended the "Tiger Reserves" to be kept at a higher pedestal than a sanctuary, a National Park, a conservation reserve, or a community reserve.
33. As discussed hereinabove, the declaration of sanctuary is as provided under Section 18 of the WLP Act. We have already reproduced Section 18 hereinabove.
34. The Chief Wild Life Warden has been entrusted with the functions and duties to control, manage, and protect all sanctuaries in accordance with such management plans for the sanctuary as approved by him as per the guidelines issued by the reserve management in the State for biodiversity conservation initiatives through eco- development and people's participation as per approved management plans and to support similar initiatives in adjoining areas consistent with the Central and State laws. Under clause (i), it is required to ensure critical support including scientific, information technology, and legal support for better implementation of the TCP. Under clause (j), it is required to facilitate an ongoing capacity building programme for the skill development of officers and staff of tiger reserves. Under clause (k), it is required to perform such other functions as may be necessary to carry out the purposes of the WLP Act with regard to the conservation of tigers and their habitat.
48 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
39. The importance given to the Tiger Conservation Authority can be seen in sub-section (2) of Section 38-O of the WLP Act, which empowers it to issue directions in writing to any person, officer or authority for the protection of tiger or tiger reserves and such person, officer or authority are bound to comply with the directions. No doubt that the proviso thereto provides that no such direction shall interfere with or affect the rights of local people, particularly the Scheduled Tribes.
45. Section 38XA of the WLP Act which was inserted by the Wild Life (Protection) Amendment Act, 2022 (No. 18 of 2022) makes the legislative intent amply clear. It provides that, the provisions contained in the said Chapter shall be in addition to, and not in derogation of the provisions relating to sanctuaries and National Parks (whether included and declared, or are in the process of being so declared) included in a tiger reserve under this Act. 46. It could thus be seen that, the entire emphasis of the WLP Act is on the conservation, protection, and management of wildlife. Various provisions contained in the WLP Act, discussed hereinabove, emphasize on providing measures for the conservation, protection and management of wildlife. The provisions contained in Chapter IVA lay a specific emphasis on the protection of tigers and other habitats in the tiger reserve. The provisions contained therein are in addition to the provisions contained for sanctuaries and National Parks.
49 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
IV. GUIDELINES ISSUED BY VARIOUS AUTHORITIES
47. In light of the aforesaid statutory provisions, it will also be necessary to refer to certain guidelines issued by various authorities.
1. Co-existence agenda in buffer/fringe areas (landscape approach/sectoral integration) with ecologically sustainable development programme for providing livelihood options to local people, with a view to reduce their resource dependency on the core. The strategy would involve reciprocal commitments with the local community on a quid-pro-quo basis to protect forests and wildlife, based on village level, participatory planning and implementation through ecodevelopment committees (EDC).
2. Addressing man-animal conflict issues (ensuring uniform, timely compensation for human injuries and deaths due to wild animals, livestock depredation by carnivores, crop depredation by wild ungulates).
3. Mainstreaming wildlife concerns in the buffer landscape by targeting the various production sectors in the area, which directly or incidentally affect wildlife conservation, through 'Tiger Conservation Foundation', as 50 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
provided in the Wildlife (Protection)
Amendment Act, 2006.
4. Addressing tiger bearing forests and
fostering corridor conservation through
restorative strategy in respective working plans of forest divisions, involving local communities, to arrest fragmentation of habitats.
5. Ensuring safeguards/retrofitting measures in the area in the interest of wildlife conservation
50. The guidelines also deal with various production sectors in the buffer zone which require mainstreaming of wildlife concerns in these sectors like:
(a) Forestry (D)
(b) Agriculture (D)
(c) Integrated Development (ecodevelopment, development through District Administration) (D)
(d) Tourism (D)
(e) Fisheries (D)
(f) Tea/Coffee Estates (I)
(g) Road / Rail transport (D)
(h) Industry (D)
(i) Mining (I)
(j) Thermal power plants (I)
(k) Irrigation projects (D) 51 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
(l) Temple tourism (I)
(m) Communication projects (D)
51. Clause 6 of the said guidelines deals with importance of a buffer zone vis-à-vis the tiger land tenure dynamics, which reads thus:
"6. Importance of a buffer zone vis-à-vis the tiger land tenure dynamics 6.1 Tiger is a territorial animal, which advertises its presence in an area and maintains a territory. It is a well known fact that partial overlaps of resident male territories in an area do occur. However, the degree of overlap increases lethal internecine combats. Several female territories do occur in an overlapping manner within the territory of a male tiger. The tiger land tenure dynamics ensures presence of prime adults in a habitat which act as source populations, periodically replacing old males by young adults from nearby forest areas (Plate 2). 6.2 The ongoing study and analysis of available research data on tiger ecology indicate, that the minimum population of tigresses in breeding age, which are needed to maintain a viable population of 80-100 tigers (in and around core areas) require an inviolate space of 800 -1000 sq km (see Annexure I). Tiger being an "umbrella species", this will also ensure viable populations of other wild animals (co-
predators, prey) and forest, thereby ensuring the ecological viability of the entire area / habitat. Therefore, buffer areas with forest connectivity are imperative for tiger dynamics, since such areas foster sub adults, young adults, 52 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
transients and old members of the population. The young adults periodically replace the resident ageing males and females from the source population area.
6.3 The buffer area, absorbs the "shock" of poaching pressure on populations of tiger and other wild animals. In case of severe habitat depletion in buffer areas, the source population would get targeted and eventually decimate. Plate 2: Tiger Land Tenure Dynamics. Minimum population of tigers in breeding age needed for maintaining a viable population (80-100 tigers), which require an inviolate space of 800-1000 square kilometers."
52. Clause 8 of the said guidelines deals with the importance of the corridors, which reads thus:
"8. Value of Corridors 8.1 Isolated populations of wild animals face the risk of extinction owing to insularization. Habitat fragmentation adversely affects wildlife due to decreased opportunity available for wild animal movement from different habitats. This in turn prevents gene flow in the landscape.
The equilibrium theory of island biogeography predicts greater species richness in large wildlife areas or in smaller areas connected by habitat corridors owing to increased movements of wild animals. Such connecting habitats, apart from facilitating animal movements also act as refuge for spill over populations from the core areas.
They may also act as smaller "source" by facilitating 53 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
breeding and movement of native wildlife populations to colonize adjoining habitats. Natural linear features like rivers or mountain ranges may act as boundaries for wildlife populations. However, disturbance of corridors on account of human interventions (highways, canals, industries, roads, railway tracks, transmission lines) is deleterious to wildlife safeguards for the field staff.
65. It is further relevant to note that, the Ministry of Environment and Forests, Department of Environment, Forests & Wildlife. Union of India has issued a Resolution dated 7th December 1988, thereby providing for the National Forest Policy, 1988. Para 4.5 of the said Policy deals with Wildlife Conservation', which reads thus:
"4.5 Wildlife Conservation "Forest Management should take special care of the needs of wildlife conservation, and forest management plans should include prescriptions for this purpose. It is specially essential to provide for "corridors" linking the protected area in order to maintain genetic continuity between artificially separated sub-sections of migrant wildlife."
66. It is further relevant to note that the National Wildlife Action Plan, 2017-2031 also emphasizes on the concept of protection of the wildlife as a whole, beyond protected areas to protect the integrity of the Tiger Reserve. The relevant portion of the Plan is reproduced herein below:
"Landscape Level Approach for Wildlife
Conservation
Overview and Objectives
54
OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
1. It is increasingly recognized that wildlife conservation has to go beyond Protected Areas (PAs) to the larger landscapes in which these are embedded. A landscape is defined as 'a large tract of land constituted by a mosaic of interacting land uses with people and the impacts of their activities as the cornerstone of its management.' Landscape allows ecosystem level conservation actions at the existing internal smaller nested spatial scales of management/administration such as PAs and territorial forest divisions as well as larger units to achieve conservation goals at the largest spatial scale possible in practical terms.
2. Landscape level conservation of species must be seen as maintaining or enhancing genetic exchanges between metapopulations and significantly improving the prospects of their long term persistence. Therefore, the plans must address species loss in the short-term and the reasons for such depletions in the long run.
xx...........................xx.........................xx
6. Further, conservation of wildlife can not be seen isolated from the whole development of the region or landscape. Local governance systems, local land use patterns and land use systems, ecosystem-interfaces and socio-economic circumstances are mutually intertwined at the landscape level. Therefore, a mosaic approach to landscape planning needs to be developed in partnership with other agencies and stakeholders."
67. It is thus amply clear that the National Wild Life Action Plan also recognizes the necessity of wildlife conservation beyond the protected areas. It states that the landscape allows ecosystem level conservation actions at the existing internal smaller nested spatial scales of 55 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
management/administration such as protected areas and territorial forest divisions as well as larger units to achieve conservation goals at the largest spatial scale possible in practical terms. It further states that the conservation of wildlife cannot be seen to be isolated from the whole development of the region or landscape. It states that the local governance systems, local land use patterns and land use systems, ecosysteminterfaces and socio-economic circumstances are mutually intertwined at the landscape level. It emphasizes that a mosaic approach to landscape planning needs to be developed in partnership with other agencies and stakeholders.
V. CONSIDERATION
68. This Court had an occasion to consider an issue with regard to environmental justice in the case of T.N. Godavarman Thirumulpad v. Union of India and others2, wherein this Court held thus:
"17. Environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric. Many of our principles like sustainable development, polluter-pays principle, intergenerational equity have their roots in anthropocentric principles. Anthropocentrism is always human interest focussed and that non-human has only instrumental value to humans. In other words, humans take precedence and human responsibilities to non-human based benefits to humans. Ecocentrism is nature-centred where humans are part of nature and non-humans have intrinsic value. In other words, human interest does not take automatic 56 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
precedence and humans have obligations to non-humans independently of human interest. Ecocentrism is therefore life-centred, nature-centred where nature includes both humans and non-humans. The National Wildlife Action Plan 2002-2012 and the Centrally Sponsored Integrated Development of Wildlife Habitats Scheme, 2009 are centred on the principle of ecocentrism."
69. It could thus be seen that this Court has held that, to achieve environmental justice, the approach of anthropocentrism i.e. human interest focused and that non-human has only instrumental value to humans will have to be avoided. It has been held that ecocentrism i.e. nature centered where humans are a part of nature and non-humans have intrinsic value will have to be adopted. It has been held that human interest does not take automatic precedence and humans have obligations to non-humans independently of human interest. It has been held that the National Wildlife Action Plan 2002-2012 and the Centrally Sponsored Integrated Development of Wildlife Habitats Scheme, 2009 are centred on the principle of ecocentrism.
70. This Court again in the case of Centre for Environmental Law, World Wide Fund-India v. Union of India and others, following the earlier judgments, observed thus:
"44. The scope of the Centrally-sponsored scheme was examined in T.N. Godavarman Thirumulpad v. Union of India ((2012) 3 SCC 277) (Wild Buffalo case) and this Court directed implementation of that scheme in the State of Chhattisgarh. The Centrally-sponsored scheme, as already indicated, specifically refers to the Asiatic lions as a critically endangered species and highlighted the necessity 57 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
for a recovery programme to ensure the long-term conservation of lions. NWAP, 2002-2016 and the Centrally-sponsored scheme, 2009 relating to integrated development of wildlife habitats are schemes which have statutory status and as held in Lafarge case [Lafarge Umiam accumulate on his premises, so near the house of another, that the stench incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. A like injury is, if one's neighbour sets up and exercises any offensive trade; as a tanner's, a tallow-chandler's, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, "sic utere tuo, ut alienum non leadas"; this therefore is an actionable nuisance. And on a similar principle a constant ringing of bells in one's immediate neighbourhood may be a nuisance.
...........With regard to other corporeal hereditaments; it is a nuisance to stop or divert water that used to run to another's meadow or mill; to corrupt or poison a watercourse, by erecting a dye-house or a lime-pit, for the use of trade, in the upper part of the stream; to pollute a pond, from which another is entitled to water his cattle; to obstruct a drain; or in short to do any act in common property, that in its consequences must necessarily tend to the prejudice of one's neighbour. So closely does the law of England enforce that excellent rule of gospel-morality, of "doing to others, as we would they should do unto ourselves".
75. Further in the case of Intellectuals Forum, Tirupathi v. State of A.P. and others, this Court observed thus :
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OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
"84. The world has reached a level of growth in the 21st century as never before envisaged. While the crisis of economic growth is still on, the key question which often arises and the courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without an inkling as to the substance of their end results. This inevitably leads us to the conception of growth and development, which sustains from one generation to the next in order to secure "our common future". In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it, "conservation, however, always takes a back seat in times of economic stress". It is now an accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate with their well-being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as the future generations are aware of them equally."
76. In Indian Council for Enviro-Legal Action v. Union of India and others, this Court observed thus:
41. With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming 59 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
aware of the need to protect environment. Even though, laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard of the mandatory provisions of law, some publicspirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the courts for preventing environmental degradation and thereby, seeking to protect the fundamental rights of the citizens, is now well settled by various decisions of this Court. The primary effort of the court, while dealing with the environmental- related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The courts, in a way, act as the guardian of the people's fundamental rights but in regard to many technical matters, the courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though, it is not the function of the court to see the day-to-day enforcement of the law, that being the function of the Executive, but because of the nonfunctioning of the enforcement agencies, the courts as of necessity have had to pass orders directing the enforcement agencies to implement the law."
21. Hon'ble the Supreme Court of India has further discussed the matter and held that :-
135. This Court in unequivocal terms has held that the executive acting under the doctrine of public trust cannot 60 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources. also in other areas around the Corbett Tiger Reserve, there is a mushrooming growth of resorts, which are acting as a hindrance to the free movement of animals including the tigers and elephants. It is also brought to our notice that similarly, there is a mushrooming growth of resorts around various Tiger Reserves throughout the country which are now being used as marriage destinations. It is brought to our notice that in the said resorts, music is played at a very loud volume which causes disturbance to the habitat of the forests. Undisputedly, mushrooming growth of resorts within the close proximity of the protected areas and uncontrolled activities therein, including sound pollution are capable of causing great harm to the ecosystem. We propose to issue certain directions in that regard in the operative part of our judgment.
(f) Principle of Ecological Restitution
150. It will be relevant to refer to the Convention on Biological Diversity, 1992 ("CBD" for short), to which India is a signatory. Article 8 of the CBD pertains to in situ conservation. Under clause (f) thereof, it requires the contracting parties to, as far as possible and as appropriate, to rehabilitate and restore the degraded ecosystems and promote the recovery of threatened species. It reads thus:
(f) Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the 61 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
development and implementation of plans or other management strategies.
151. In the Chorzow Factory Case13, the Permanent Court of International Justice (PCIJ) laid down the standard in international law for reparations for the commission of internationally wrongful acts. The Court held:
"The essential principle contained in the actual notion of an illegal acta principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re- establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it such are the principles which should serve to determine the amount of compensation due for an act contrary to international law (...)"
Article 8(f) of the CBD is what is required. At times, the compensatory afforestation permits forestation at some other site. However, the principle of restoration of damaged ecosystem would require the States to promote the recovery of threatened species. We are of the considered view that the States would be required to take steps for the identification and effective implementation of active restoration measures that are localized to the particular ecosystem that was damaged. The 62 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
focus has to be on restoration of the ecosystem as close and similar as possible to the specific one that was damaged.
159. It is well known that the presence of a Tiger in the forest is an indicator of the well-being of the ecosystem. Unless steps are taken for the protection of the Tigers, the ecosystem revolving around Tigers cannot be protected. The figures which are placed before us to show that there has been a substantial reduction in tiger poaching and an increase in the tigers' strength throughout the country. However, that should not be enough. The ground realities cannot be denied. The events like illegal constructions and illicit felling of trees on a rampant scale like the one that happened in the Corbett National Park cannot be ignored. Steps are required to prevent this."
22. In February 2010, the MoEF&CC brought out its Guidance manual for airports. The need for a sector specific manual arose because the 2006 notification "re-engineered the entire EC process" under its earlier avatar of 1994 and new sectors were incorporated into the ambit of the EC process. The 2006 notification noted that as many as 39 developmental sectors require prior ECs. Sector specific manuals, it was hoped, would bring about standardisation in the quality of appraisal and obviate potential inconsistencies between the work performed by SEIAAs and SEACS. Chapter IV of the Guidance manual, which is titled 'Description of Environment'. prescribes the study area for carrying out an EΙΑ:
"Primary data through measurements and field surveys, and secondary data from secondary sources are to be collected in the study area within 10 km radius from Aerodrome Reference Point (ARP). Primary data should cover one season other than monsoon and secondary data is to cover one full year. The basis for selection of these criteria is that the aircraft gains a height of 1000ft in this area below which noise and air pollution are generated 63 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
maximum during its take off stage. Secondary data should be collected within 15 km aerial distance for the parameters as specifically mentioned at column 9 (III) of Form I of EIA Notification, 2006. Details of secondary data, the method of collection of secondary data, should be furnished. Similarly, the proposed locations of monitoring stations of water, air, soil and noise etc should be shown on the study area map."
23. Baseline data of environmental parameters which may be affected by airport activities is collected through primary monitoring in the study area and through secondary sources. The baseline data facilitates the evaluation of the predicted impact on environmental attributes in the study area by using scientific analysis and EIA methodologies. The object is to also aid in the preparation of an EMP that would outline measures for improving environmental quality as well as retain the scope for future expansions in a sustainable manner. The Guidance manual specifically requires collection of baseline data on the following: (i) land environment: (ii) water environment; (iii) air environment; (iv) noise environment; (v) biological environment; (iv) socio-economic environment and (vii) solid waste.
The importance of collecting data on land environment is emphasised in the following extract:
"The terrain and hill slope, general slope and elevation of the area, the flow direction of streams and rivers, the water bodies and wet lands and the vegetation which together describe the physiography of the land, will control the drainage pattern in the region. Land farms, terrain, may get affected due to construction of airport. It may require large scale quarrying, dredging and reclamation, which may cause changes in the topography. This in turn may affect the drainage pattern of the land/terrain. Baseline data pertaining to existing land at the proposed 64 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. project area including the description of terrain hill slopes, terrain features, slope and elevation are to be collected. Study of land use pattern, habitation, cropping pattern, forest cover, environmentally sensitive places etc., is to be undertaken by employing remote sensing techniques and ground truthing. Ecological features of forest area; agricultural land: grazing land; wildlife sanctuary land & national parks; migratory routes of fauna: water bodies, and drainage pattern including the orders of the drain and water sheds are to be described. Settlements in the study area may be delineated with respect to ARP on the site map. High rise buildings, industrial areas and zones, slaughter houses and other features of flight safety importance may also be marked on the map. Secondary data from Central Water Board GOI; State ground water department, State Irrigation Department is to be obtained. Geomorphology of the region is to be clearly delineated. Study of land use patterns, habitation, cropping pattern, and forest cover data is undertaken. Information on the location of water bodies, drainage, forests, surface travel routes with respect to the project site is obtained within the study area and plotted on a map. This map will show the natural slopes and the drainage patterns, which give a guideline while planning the drains in the airport project. The drains help in discharge of storm water from the airport to avoid flooding and water logging in the project area."
The study of the water environment is necessitated for the following reasons:
"Ground water quality is important, as change in its chemical parameters will affect the water quality. Airport activities during construction / operation may have impact on ground water quality. Due to airport construction existing low areas may be reclaimed with dredged spoil. The pollutants from dredged spoil are likely to enter into 65 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
the ground water. This is likely to increase sedimentation of pollutants in airport area, which may migrate in time to the neighbouring ground water. Also runoff from solid waste if any, may percolate into the ground and may contaminate the ground water. Hence, they need to be studied through primary surveys and secondary sources. Monitoring locations are to be finalized as per CPCB norms which can represent the baseline conditions.
On the aspect of air environment, the Guidance manual emphasises that:
"Aircraft engines produce emissions that are similar to other emissions resulting from any oil-based fuel combustion. These, like any exhaust emissions, can affect local air quality at ground level. It is emissions from aircraft below 1,000ft, above the ground (typically around 3km from departure or, for arrivals, around 6km from touchdown) that are chiefly involved in influencing local air quality. These emissions disperse with the wind and blend with emissions from other sources such as emissions from domestic sources, emissions from industries and from surface transport."
Local emissions attributed to aircraft operations at airports include Oxides of Nitrogen, Carbon Monoxide, Hydrocarbons, Sulphur Dioxide, and particulate matter (PM 10 and PM 2.5).
24. The Guidance manual brings into focus the biological environment. It acknowledges that airport operations may alter eco-systems, threaten endangered species and disturb the movement and breeding patterns of wildlife. In this context, the collection of baseline data on sensitive habitats and wild or endangered species in the project area is contemplated. The Guidance manual stipulates thus:
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"Airport operations may cause change in local ecosystems. threaten endangered species, and disturb movements and breeding patterns of local wildlife. Airports are located within a variety of settings (both urban and rural), which support habitats and species of their own, some of which will have direct interaction with those located on the airport and vice versa. Some local areas will also be designated for their nature conservation value. The biological environment of the airport should hence be seen as an integral component of the wider landscape scale ecological network. To accomplish this-
• Baseline data from field observations for various terrestrial and aquatic systems are to be generated.
• Comparison of the data with authentic
past records to understand changes is
undertaken.
• Environmental components like land,
water, flora and fauna are characterized
and,
• The impact of airport development on
vegetation. structure in and around
project site is to be understood.
Data on sensitive habitats, wild or endangered species in the project area also is to be collected from Zoological Survey of India (ZSI), Botanical Survey of India (BSI), Wildlife Institute of India (WII) and Ministry of Earth Sciences. Wildlife symbolizes the functioning efficiency of the entire eco system. Just 67 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
as wild flora needs special treatment for preservation and growth, wild fauna as well deserves specific conservatory pursuits for posterity.
As per Wildlife Act (1972), the various wild animals are enlisted in the schedules of wildlife Act based on the intensity of threat to them as rare, endangered, threatened, vulnerable etc.. Primary data on survey of the wild animals and birds in the study area is collected and identified with the classification into various schedules taken from secondary data."
25. S.O. No. 3067, (E), dated 01.12.2009, provides the clearances as follows:-
• The projects involving clearance under Coastal Regulation Zone Notification, 1991 shall submit with the application a CRZ map duly demarcated by one of the authorized agencies, showing the project activities, w.r.t. C.R.Z (at the stage of TOR) and the recommendations of the State Coastal Zone Management Authority (at the stage of EC).
Simultaneous action shall also be take to obtain the requisite clearance under the provisions of the CRZ notification, 1991 for the activities to be located in the CRZ • The projects to be located within 10km of the National parks, Sanctuaries, Biosphere reserves, Migratory corridors of wild animals, the project proponent shall submit the map duly authenticated by Chief Wildlife Warden showing these features vis-à-vis the project location and the 68 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
recommendations or comments of the Chief Wildlife Warden thereon (at the stage of EC) • All correspondence with the Ministry of Environment & Forests including submission "of application for TOR/Environmental Clearance, subsequent clarifications, as may be required from time to time, participation in the EAC meeting on behalf of the project proponent shall be made by the authorized signatory only. The authorized signatory should also submit a document in support of his claim of being an authorized signatory for the specific project"
26. The operational and geographic impact associated with airport development are covered by policy drives (both strategies and legislation) at global, regional and national levels. The International Civil Aviation Organisation (ICAO), which oversees the level and direction of effort involved in addressing the environmental impact of the sector, also deals with the emissions from aircrafts. ICAO: The ICAO agenda is focussed on the Committee of Aviation Environmental Protection (CAEP), whose 18 member states make recommendations through five groups:
• WG1-reducing noise (noise stringency limits engines);(www.icao.int) • WG2-land use planning and management, operating restrictions and other issues associated with noise such as modelling; (www.caa.co.uk) • WG3-reducing emissions at source (emission limits); (www.caa.co.uk) • WG4 operational mechanism for reducing aviation emissions; (www.icao.int/icao/en/m.html) and • WG5-market based options (legal & administrative issues surrounding emissions permit trading, environmental charges 69 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. and voluntary agreements as a means to limit or reduce emissions) (www.icao.int).
The work of the CAEP is more technical in nature. The process of securing consensus in ICAO is lengthy, not least because membership is voluntary. Though the members are responsible for enacting certain standards and practices, they are not legally bound to do so. They are only honour bound to implement the resolution on environmental policies and practices.
Essential Toposheets / Maps to be provided • A map of the study area (project area and area 10 km around its boundary) delineating the major topographical features such as land use, drainage, a location of habitats is to be given. Major constructions including roads, railways, pipelines, major industries if any in the area are to be marked clearly.
• A map of the study area covering aerial distance of 15 km from the proposed project boundary delineating environmental sensitive areas as specified in Form I of EIA notification 2006 as amended 2009 is to be shown.
• Land use map of the study area to 1: 25,000 scale, based on recent satellite imagery of the study area delineating the cropping pattern, waste land, forest area and built up area need to be prepared.
• Contour map at sufficient or acceptable intervals as available or as required for the study of project area and site plan of the area showing the proposed break-up of the land may be prepared.
• Layout plan of proposed airport development should be submitted to a scale of 1:5000. Description of covered and open facilities, landscape and other civil works such as under ground/ over head water tanks; Sewage Treatment Plant(STP); Effluent Treatment 70 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
Plant (ETP); Petrol / Paint, Oil, Lubricants(POL)stores; Aviation Turbine Fuel(ATF) store; Cargo storage and other maps and utilities (water & power) are to be shown in the layout. Based on the terrain slope and drainage pattern of the region; perimeter boundary wall is to be planned for security of the site without allowing the storm waters to stagnate or enter project area.
• Description of the project site its geology, hydrology, topography, and climate, connectivity by road/rail, demographic aspects, socio-cultural and economic aspects, villages, and settlements are to be identified.
• Details of environmentally sensitive places, land acquisition and rehabilitation of communities/ villages with their present status should be mentioned. The Siting criteria delineated by MoEF should be discussed. Notified restrictions and limitations from Environmental considerations etc., if any should be discussed.
• Historical and climatic data such as climatic conditions, rainfall, wind pattern, history of cyclones, storms surges, visibility etc. for the last 25 years are to be mentioned.
• In case of expansion/modernization of the project, the environmental compliance status for the existing project should be explained. If the potential impact on environment exceed the existing project limits, fresh EIA process may be initiated before starting the project.
• Technologies involved for design, construction, equipment and operation should be brought out clearly in the document.
• Requirement of natural resources for construction along with their sources, technologies involved in the design, construction, equipment and operation should be furnished in the report by the 71 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
proponent. Water requirement during the construction and operational phases should be covered along with the identified sources. Water balance flow chart should be prepared considering phases of construction and operation. Rainwater harvesting provisions should be explored. Utilization of solar energy for lighting etc may be explored. The resources requirement for the construction may be quantified.
27. The submission of the learned counsel for the respondent no. 1, Union of India, through Secretary, Ministry of Environment, Forest and Climate Change, are that, the airport under question is located near the protected boundary of the Satpura Tiger Reserve, falling in the ESZ, i.e., Pachmarhi Hills in Narmadapuram, District of Madhya Pradesh, and inside the UNESCO Biosphere Reserve of Pachmarhi, and the notification prohibits any commercial construction to take place within one kilometre from the protected area. It is further submitted that, after the filing of this application and issue of notice, the committee has already directed not to restart the work of Airstrip Pachmarhi without the statutory permission required under the provisions of ESZ, wildlife clearances, because it is in critical habitat area for tigers and endangered vulture population.
28. It is further argued that, the airstrip being located inside the buffer zone of the protected area, shall obtain needful clearance from the National Board for wildlife clearances. Further submissions of the learned counsel for the MoEF&CC are that the said proposal lies within an enclaved buffer area within the core critical tiger habitat of the Satpura Tiger Reserve. The occupancy of tigers and prey species mapped as per database maintained by the National Tiger Conservation Authority, via-a-vis the project site which is as follows:
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a. Tiger density: High b. Leopard density: Low c. Chital density: Very Low d. Gaur density: Low e. Sambar density: High Keeping in view prey and predator occupancy as above, it is evident that the proposed airstrip will impact wild animal distribution in the area.
Even if an overwhelming public interest is justified, requisite approval of the National Board for Wild Life (NBWL) /Standing Committee of the National Board for Wild Life (SCNBWL) as per Section 38-0(1)(g) of the Wild Life (Protection) Act, 1972 shall be required following advice by the Tiger Conservation Authority.
29. It is further argued that, the project comes within the category of 7A, and qualified as category 'A' project, under the EIA notification, which is required to be appraised by the Expert Appraisal Committee (EAC) at the central level, and approved by the Central Government. Handling of violation cases has been given to the competent authorities to regularly monitor and take necessary actions.
30. The submission of the learned counsel for the MPSEIAA are that all projects concerning the development or expansion of airports are explicitly categorized under Schedule I, item 7(a). As such, these projects are classified as Category A projects. This classification mandates that such projects undergo a comprehensive Environmental Impact Assessment and subsequently secure an Environmental Clearance from the Ministry of Environment, Forest, and Climate Change any commencement of construction or operational activities. The categorization under Category A underscores the significant potential environmental impacts these projects 73 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. may have, thereby necessitating rigorous scrutiny and adherence to environmental norms and standards as stipulated under the EIA Notification, 2006.
31. That the MoEF&CC vide Notification, S.O.3067(E) dated 01.12.2009, amended the EIA Notification, 2006, wherein against item 7(a), for the entries in column 3 it was substituted as "all projects, including airstrips for commercial use" and further a new entry in column 5 was added stating "Air strips, which do not involve bunkering / refueling facility and or Air Traffic Control, are exempted", explicitly exempting the same from obtaining EC.
32. Thereafter, MoEF&CC vide Notification S.O. 1886(E) dated 20.04.2022, further amended EIA Notification, 2006, wherein against item 7(a), for the entries in column 3 "all projects" words were substituted to "all new projects", furthermore an entry in column 5 was added stating "all expansion projects, including airstrips, which are for commercial use", thereby granting the answering responsibility with powers to grant EC for expansion and renovation projects.
33. In another amendment vide Notification S.O. 3194(E) dated 14.07.2022 was issued by MoEF&CC, wherein a new entry was added in column 5 of entry 7(a), explicitly stating under the heading Note, the existing para shall be numbered as "(i)"thereof and after the para (i) as so numbered, the following shall be inserted, namely:- "(ii) Only expansion of terminal buildings and allied buildings within the existing Airport premises >20,000 shall require Environmental Clearance, and such expansion up to 1,50,000 sqm shall be appraised as per provisions of item 8(a) of the Schedule of this notification provided there is no increase in the existing area of the Airport and it is further submitted that no application for Environmental Clearance for 74 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. expansion of airstrip in Pachmarhi has been received by the answering respondent from the Project Proponent.
34. The learned counsel for the State PCB, MP Ms. Parul Bhadoria has adopted a report of the joint committee for the reasons that the inspection was conducted by the members of the joint committee consisting members of the MPSEAC and MoEF&CC.
35. Submissions of the learned counsel for Public Works Department are that the project will not facilitate or support any form of commercial activity and no additional infrastructure development beyond what is necessary to enhance the current facility will be taken and further that necessary applications have been moved before the appropriate authority for due permission according to rules and it is further undertaken that the PWD or the State is not going to develop it or make any construction without any due permission from the competent authority.
36. The submission of the learned counsel for the Chief Wildlife Warden, MP and Field Director, Satpura Tiger Reserve are that the reason pachmarhi falls within the buffer zone of Satpura Tiger Reserve and any construction requires mandatory permission from the Central Empowered Committee formed vide order of the Hon'ble Supreme Court of India and necessary permission from competent authority for making any construction in ESZ.
37. It is further submitted that wildlife clearance under the Wildlife Protection Act, 1972 and clearance from the National Tiger Conservation Authority as well as the standing committee of the National Board of Wildlife is necessary. In addition to compliance to the provisions of the Environmental Impact Assessment Notification dated 14.09.2006. 75 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
38. It is further submitted that the office of the respondent has instructed the respondent that any construction or expansion activities related to the airstrip in Pachmarhi must be immediately halted until all necessary and required permission and clearances are properly obtained.
39. The learned counsel for the MoEF&CC has filed the compliance affidavit with the facts that the MoEF&CC vide letter dated 13.12.2023 has communicated guidelines for seeking recommendations from the standing committee of National Board for Wildlife to all the States and Union Territories and that Section 38 of Wildlife Protection Act, 1972 must be complied with according to rules and further that Section 51 of Wildlife Protection Act, 1972 provides to take necessary legal action in case of breach of any conditions of any licensees or permit granted under this act.
40. It is further argued that a meeting was convened under the Chairmanship of the Director General of Forest and Special Secretary to review the status of the matter and following recommendations were made in the meeting -
i. The directives issued by the National Green Tribunal (NGT) must be adhered to in entirety, both in letter and spirit. ii. Necessary Actions should be taken for the violations under relevant provisions of the Acts and Rules, as applicable. iii. As per the directions of Hon'ble NGT, there would be a complete cessation of all construction activities, as well as all related operations.
41. The Learned Counsel for the Directorate of Aviation, Government of Madhya Pradesh has submitted that the Pachmarhi airstrip was first constructed during the British era and that same is over 70 years old and the expansion and renovation work were going on under the scheme. The scheme aimed 76 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. to initiate a technical pre-feasibility study for the proposed construction of an airstrip at Pachmarhi. The contention of the Learned Counsel for the respondents is that it is simply renovation and reconstruction work and it is permissible. The provisions quoted above does not permit the expansion or any construction in light of the EIA Notification.
42. The submission of the applicant in person are that the Explanation to Section 38V(4)(i) of the Wild Life (Protection) Act, 1972 describes 'core' or 'critical tiger habitat' to mean areas of national parks and sanctuaries where it has been established on the basis of scientific and objective criteria, that such areas are required to be kept inviolate for the purposes of tiger conservation without affecting the rights of Scheduled Tribes or such other forest dwellers, and notified as such by the State Government in consultation with an Expert Committee constituted for the purpose. Under section 38V(3)(b) of the Wild Life (Protection) Act, 1972. the State Government shall prepare a Tiger Conservation Plan including staff development and deployment plan for the proper management of each area referred to in sub-section (1), so as to ensure ecologically compatible land use in the tiger reserves and areas linking one protected area or tiger reserve with another for addressing the livelihood concerns of local people, so as to provide dispersal habitats and corridor for spill over population of wild animals from the designated core areas of tiger reserves or from tiger breeding habitats within other protected areas.
43. Section 38 O (1) (g) of the Wild Life (Protection) Act, 1972 provides that it shall be the function of the NTCA to ensure that the tiger reserves and areas linking one protected area or tiger reserve with another protected area or tiger reserve are not diverted for ecologically unsustainable uses, 77 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. except in public interest and with the approval of the National Board for Wild Life (NBWL) and on the advice of the NTCA.
44. That as per Section 35(6) of the Wild Life (Protection) Act, 1972, no person shall destroy or damage or divert the habitat of any wild animal in a national park except in accordance with a permit granted by the Chief Wild Life Warden, which may be granted only after consultation with the National Board for Wild Life (NBWL).
45. 38 O. Powers and functions of Tiger Conservation Authority. --
1. The Tiger Conservation Authority shall have the following powers and perform the following functions, namely: --
a) to approve the Tiger Conservation Plan prepared by the State Government under sub-section (5) of section 38V of this Act;
b) evaluate and assess various aspects of sustainable ecology and disallow any ecologically unsustainable land use such as, mining, industry and other projects within the tiger reserves;
c) lay down normative standards for tourism activities and guidelines for project tiger from time to time for tiger conservation in the buffer and core area of tiger reserves and ensure their due compliance;
d) provide for management focus and measures for addressing conflicts of men and wild animals and to emphasise on co-existence in forest areas outside the National Parks, sanctuaries or tiger reserve, in the working plan code;
78 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
e) provide information on protection measures including future conservation plan, estimation of population of tiger and its natural prey species, status of habitats, disease surveillance, mortality survey, patrolling, reports on untoward happenings and such other management aspects as it may deem fit including future plan conservation;
f) approve, co-ordinate research and monitoring on tiger, co-predators, prey, habitat, related ecological and socio-economic parameters and their evaluation;
g) ensure that the tiger reserves and areas linking one protected area or tiger reserve with another protected area or tiger reserve are not diverted for ecologically unsustainable uses, except in public interest and with the approval of the National Board for Wild Life and on the advice of the Tiger Conservation Authority;
h) facilitate and support the tiger reserve management in the State for biodiversity conservation initiatives through eco-development and people's participation as per approved management plans and to support similar initiatives in adjoining areas consistent with the Central and State laws;
i) ensure critical support including scientific, information technology and legal support for better implementation of the tiger conservation plan; 79 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
j) facilitate ongoing capacity building programme for skill development of officers and staff of tiger reserves; and
k) perform such other functions as may be necessary to carry out the purposes of this Act with regard to conservation of tigers and their habitat (2) The Tiger Conservation Authority may, in the exercise of its powers and performance of its functions under this Chapter, issue directions in writing to any person, officer or authority for the protection of tiger or tiger reserves and such person, officer or authority shall be bound to comply with the directions: Provided that no such direction shall interfere with or affect the rights of local people particularly the Scheduled Tribes."
46. The Hon'ble Supreme Court of India in (I.A. No. 20650/2023 In Writ Petition (Civil) No.202/1995 IN RE: Applicants: Gaurav Kumar Bansal. Date of Judgment: 06th March 2024 held : -
"149. It is also brought to our notice that in the Ramnagar area as also in other areas around the Corbett Tiger Reserve, there is a mushrooming growth of resorts, which are acting as a hindrance to the free movement of animals including the tigers and elephants. It is also brought to our notice that similarly, there is a mushrooming growth of resorts around various Tiger Reserves throughout the country which are now being used as marriage destinations. It is brought to our notice that in the said 80 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
resorts, music is played at a very loud volume which causes disturbance to the habitat of the forests. Undisputedly, mushrooming growth of resorts within the close proximity of the protected areas and uncontrolled activities therein, including sound pollution are capable of causing great harm to the ecosystem."
47. In view of the above discussion, regulations and law laid down by Hon'ble Supreme Court of India in different matters with regard to construction of airstrips in eco-sensitive zone or tiger reserve, the Satpura Tiger Reserve is notified as eco-sensitive zone and Pachmarhi Airstrip falls under the buffer area of the same and the provisions of the National Tiger Conservation Authority (NTCA) with the guidelines and notification issues time to time will be applicable and it needs wildlife clearance by the Chief Wildlife Warden and State Board for Wildlife.
48. Consideration by the Standing Committee of the National Board of Wildlife and National Tiger Conservation Authority, in accordance with the provisions of Section 38 of the Wildlife Protection Act, 1972, quoted above, has not been followed by the respondent. As per the categorization of industries notification issued by the State of Madhya Pradesh (MPPCB) under Sr. No. 23 and Sr. No. 18, the airport and commercial airstrips are categorized as a red category and project proponent requires to obtain CTE and CTO from the competent authority which has not been obtained in this matter and violative of the EIA notifications. As per the EIA notification dated 14.09.2006, the list of projects or activities requiring prior environmental clearance under 7(A), airports, all projects including airstrips which are for commercial use falls under category 'A' and requires 81 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors. due permission and environmental clearance from the competent authority which has not been obtained in this matter.
49. The activities of landing and taking off where a 19 seater aircraft or above capacity would fly between the route of Indore - Pachmarhi - Indore and will generate heavy noise pollution during its landing and taking off inside the Satpura Tiger Reserve and the airstrip being located very near to protected area and inside the ESZ boundary needs to be discouraged in the interest of the Tiger Reserve area which is eco-sensitive zone.
50. The work within the area falling within the eco-sensitive zone has not been scrutinized by the monitoring committee based on the actual site specific condition and have not been referred to the Central Government in the Ministry of Environment, Forest and Climate Change for prior environmental clearance under the provisions of the EIA notifications and thus, it is violative of the EIA Act. Since, the respondents and the State of Madhya Pradesh has undertaken that they are not going to restart the work without due permission from the competent authority, thus we direct as follows:-
i. Since, the Satpura Tiger Reserve is notified as eco-
sensitive zone and Pachmarhi airstrip falls under the buffer area of the eco-sensitive zone and the provisions of the National Tiger Conservation Authority with the notification is applicable, thus, the project proponent is directed to take due permission required under the provisions of ESZ wildlife clearances, environmental clearances and industrial categorization and till the due permission and environmental clearances is not obtained from the 82 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.
competent authority, no construction, expansion shall be permitted to be continued or restarted at the site within the eco-sensitive zone.
ii. The respondent State of Madhya Pradesh may explore alternative site outside the protected area for the proposed airstrip meant for commercial operation.
iii. Pachmarhi is a critical habitat area for tiger and endangered vulture population, hence the project proponent is directed to undertake detailed studies on the impact of flight operation in the ESZ area on the terrestrial wildlife and Avian Fauna of the area before the execution of the project.
iv. The Pachmarhi airstrip being located inside the buffer zone of the protected area, thus the project proponent shall obtain needful clearance from the National Board of Wildlife Clearance in consultation with the National Tiger Conservation Authority and Local Forest Department.
v. The Madhya Pradesh Pollution Control Board is directed to finalize the standard operative procedure in consultation with the MoEF&CC, Govt. of India and to undertake environmental damage assessment study through the Institute of Repute like IITs and NITs or NEERI and the implementation of the recommendations, outcomes of the studies shall be paid by the project proponent under the principles of polluters to pay.83
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51. A copy of the order be communicated to the Secretary (Environment), Principal Chief Conservator of Forest, Member Secretary, State Pollution Control Board, Madhya Pradesh and Director of Civil Aviation for information and necessary action.
52. With these observations, Original Application No. 188/2023 stands disposed of.
Sheo Kumar Singh, JM Dr. Afroz Ahmad, EM 24th March, 2025 O.A. No. 188/2023 (CZ) PN 84 OA No.188/2023(CZ) Brajesh Kumar Bharadwaj Versus State of Madhya Pradesh & Ors.