National Green Tribunal
Dharmender Kumar Singh vs State Of U.P. & Ors on 12 July, 2023
Item No. 06 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(BY HYBRID MODE)
Original Application No. 698/2022
Dharmender Kumar Singh Applicant
Versus
State of U.P. & Ors. Respondent(s)
Date of hearing: 12.07.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, CHAIRPERSON
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. Gaurav Kumar Bansal, Advocate
Respondents: Mr. Pradeep Mishra & Mr. Daleep Dhyani, Advs. for UPPCB
Mr. Dinesh Singh, DFO, Kashi
Mr. S.L. Pal, Registrar, Jannayak Chandrashekhar University, Ballia
ORDER
1. A registered letter was received in the office of National Green Tribunal (NGT) and it was converted as a letter petition and registered as Original Application (being OA No. 698/2022).
2. Grievance of the application - petitioner is that there are illegal constructions of buildings of Jannayak Chandrashekhar University in violation of environmental norms at Village Vasantpur, District Ballia, Uttar Pradesh in the buffer zone of Surha Tal, which is a wetland of river Ganga and has been declared as a 'Bird Sanctuary'.
3. The above wetland is spread in the area of 34.3 km2 having length of 4.5 kms. During monsoon, the water spread area of wetland gets increased 1 posing danger of inundation of any structure constructed within wetland area.
4. Vide order dated 01.11.2022, a joint Committee was constituted by this Tribunal with direction to submit a factual and action taken report.
Notices were also issued to the respondents. In compliance thereof, the Committee consisting of Divisional Forest Officer, Ramnagar, Varansi, Member Secretary, Wetland Committee, Ballia, Regional Officer, UP State PCB, Superintendent of Police and District Magistrate visited the site and submitted the report on 31.12.2022 as follows:
"3. Observations Surha Taal is a natural lake located in District Ballia of Uttar Pradesh. Surha Tal is located in Middle Ganga Plains along the margins of Ganga. It owes its origin to the meandering of Ganga and now a narrow outlet of about 23km named Kathar Nala connects it with the river and is the main outflow channel. The area of the lake is subject to seasonal variation and the lake expands to its maximum during rainy season in the month of August to September. The lake discharges its waters into River Ganga through Kathar Nala. Sometimes the flow of kathar Nala gets reversed during the high floods in River Ganga. Forest Department, Govt. of U.P. has notified Surha Tal as Surha Tal Bird Sanctuary under Wildlife (Protection) Act, 1972 vide notification no. 1088(1)/14.03.19/89, Lucknow on dated 27 March, 1991. Further Forest Department, Govt. of U.P. has changed name Surha Tal Bird Sanctuary as Jai Prakash Narayan Bird Sanctuary vide office order no. 2854/14-4-2002-874/2002 Lucknow on dated 10 December, 2002.
Divisional Forest Officer, Kashi Wildlife Division, Ramnagar, Varanasi incharge of Jai Prakash Narayan (Surha Tal) Bird Sanctuary, Ballia has given following information during visit are as follows :-
3.1 Forest Department, Forest Section-3 No. 1088 (1)/14-3- 19/89 Lucknow on March 27, 1991 under sub-section (1) of Section-18 of the Wildlife Protection Act, 1972 by Hon'ble Governor, U.P. using this, about 34.329 sq. Km. area has been declared as Surha Tal Bird Sanctuary, Ballia (Annexed as Annexure-01).
3.2 Hon'ble Governor, U.P. has changed the name from Surha Tal Bird Sanctuary to Jai Prakash Narayan Bird Sanctuary vide notification U.P. Forest Section-4 No.- 2854 /14-4-2002-874/2002, Lucknow Dated 10.12.2002 (Annexed as Annexure-02).
3.3 District Magistrate, Ballia has invited/announced to general public under Section-21 of the Wildlife Protection Act, 1972, on 18.12.2006, objections/claims in the construction of bird sanctuary in the said area whose interests are being affected or vested may claim/ 2 objections submit for hearing to the Settlement Officer (Sub Divisional Magistrate) Bansdih, Ballia which is continuing and under process.
3.4 In Jai Prakash Narayan (Surha Tal) Bird Sanctuary, Ballia area, out of total 3432.93 hectares of notified land, 132.78 hectares is village society (Gram Samaj) land and 3300.15 hectares is the land of private cultivators. No land of Forest Department is vested in it.
3.5 As per Additional Chief Secretary, Higher Education, Govt. of U.P. vide letter no. 462/Sattar-4-2018- 20(20)/2016, dated 09.03.2018 requested to District Magistrate Ballia that the Shaheed Smarak Trust Ballia land transfer its land 51.0 acre in favour to Higher Education Department, Govt. of U.P. for establishment of Jananayak Chandrashekhar University.(Annexed as Annexure-03).
As per khatauni register of land Consolidation Department, Ballia the said land 51.0 acre transferred (Mutation) to Jananayak Chandrashekhar University, Ballia through Special Secretary, Govt. of U.P. (Annexed as Annexure-04).
3.6 The teaching work is going on continuously since the year 2017- 18 in various faculties/courses of Jananayak Chandrashekhar University, Ballia. At present, apart from local students, students from nearby districts also come to get higher education.
3.7 The University is situated in Village-Basantpur Ehatmali in a total area of 51.0 acres and the campus of the University is surrounded by boundary wall from all sides.
3.8 At the time of site visit various land gata's of JannayakChandrashekhar University found to be situated at a distance of about 300 meters to 600 meters from the water area of Surha Tal.
3.9 Farming is being done by the local farmers on the surrounding land outside the University campus, in which crops like wheat, gram, peas and mustard etc. have been grown. There is no water logging anywhere in the university campus or its adjacent area, due to this there is no movement of migratory/immigrant birds in this area, nor is there breeding/ breeding of birds in the university campus or its vicinity. Reflected somewhere.
3.10 The campus of the University level is higher than the present water level of Surha Tal. The Surha Tal is connected to the river Ganges through Kathar Nala. When the water level of the river Ganga rises during the rainy season, the water of the river Ganga comes to Surha Tal through Kathar Nala. This flood water goes back in 20-25 days with the decrease in the water level of river Ganga. About 1087.87 hectare of the Surha Tal is filled with water throughout the year. Most of the migratory/ immigrant birds travel in this area only in the winter season from the month of December to the month of February.
3.11 It was informed by the University Administration that according to the present layout of the university campus, proper arrangements for water drainage have been ensured. During the rainy season, there will be no obstruction in the way of rain water going to the Surha Tal area from the old buildings and new under construction buildings 3 located in the university campus. Four drains located in the surrounding areas are connected to Surha Tal, through which all the water of the nearby catchment area goes to Surha Tal.
3.12 At the time of inspection Forest Settlement Officer, Ballia has submitted letter no. 1236/Aa.Li.-Van Bandobast, Dated 19.12.2022 regarding land of Jannayak Chandrashekhar University, Ballia (Annexed as Annexure-O5). As per attached letter Jannayak Chandrashekhar University, Ballia has requested vide letter no. J.N.C.U./S.P./ 2790/2022, dated November 14, 2022 to the District Magistrate, Ballia through mentioning 09 points that all areas/land gata nos. of Jannayak Chandrashekhar University, Ballia to be excluded from the bird sanctuary. Considering the above request and claim of the University, under section 24 2(A) of the Wildlife (Protection) Act, 1972 (as amended) by Forest Settlement Officer, Ballia letter No. 1236/A.L.- Forest Settlement, dated 19.12.2022 in exercise of the rights conferred Jananayak Chandrashekhar University, Ballia, the mentioned land as requested has been separated from the notified area of the bird sanctuary.
3.13 At the time of site visit Registrar of Jananayak Chandrashekhar University has informed that it is a state University established in year 2016 by Government of Uttar Pradesh. About 122 colleges are affiliated to this University. These 122 colleges of Ballia district were formerly affiliated to Mahatma Gandhi Kashi Vidyapith, Varanasi. For academic year 2016-17 examinations were conducted by Mahatma Gandhi Kashi Vidyapith, Varanasi but students were awarded a_ degree from Jananayak Chandrashekhar University. At present about 138 Colleges are affiliated to this University as informed by Registrar."
5. In the order dated 19.12.2022 passed by the Forest Settlement Officer, Ballia, the land in question was found to be recorded as a trust property and it was being used for the purposes of University constituted by the State of UP and a case was registered before the Settlement Officer (Forest) under Section 22/24 of the Wildlife Protection Act,1972.
6. After hearing the parties and considering the application, the Settlement Officer (Forest) passed an order demarcating the land under Section 24/2/k of Wildlife Protection Act,1972. The report was called from the Forest Department and Regional Director, Forest Social Forestry Ramnagar and Ballia. They submitted a joint report with the facts that the Jai Prakash Narayan Bird Sanctuary, Surha Tal has a total area 34.329 sq.km which is situated in different 44 villages. Out of this area, 3300.15 hectare land is a land of private owners/agriculturists. Rest of the land i.e. 4 132.78 hectare is a land of Gram Samaj. The settlement proceedings have been initiated and pending before Settlement Officer (Forest). It is contended by learned Counsel appearing for the respondent that a Settlement Officer (Forest) is a competent authority to decide the matter with regard to land within the area and any order passed by the Settlement Officer (Forest) is an appealable order and any person aggrieved can file appeal or revision before the competent authority. The order passed by the Settlement Officer (Forest) cannot be challenged before this Tribunal. In view of the above proceeding before Settlement Officer Forest, para 10 and 11 of order dated 03.03.2023 is recalled.
7. The Regional Director, Ballia, vide its letter dated 27.03.2023, has communicated that no new constructions are being done in the eco-
sensitive zone. It was contended by the respondents that the matter of eco-
sensitive zone and forest area was considered in Writ Petition No. 202 of 1995, In Re: T.N. Godavarman Thirumulpad vs Union of India and Ors. and the Hon'ble Supreme Court passed an order as follows:
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2. The present set of applications arise out of a report of the CEC dated 20th November 2003. This report specifically pertains to Jamua Ramgarh wildlife sanctuary. This sanctuary covers an area of about 300 square kilometres. The said report gives a horrific picture of ravaging of a protected forest mainly by private miners mostly with temporary working permits obtained from the Governmental agencies. Following recommendations were made in this report:-
17......... (i) all mining leases which wholly or partly fall within the forest area inside the Jamua Ramgarh Sanctuary and also within the safety zone, should be immediately cancelled. The mining activity can be allowed to be resumed only after the new/amended mining leases, after excluding the forest area and the safety zone are sanctioned by the competent authority and the conditions mentioned herein under are fully complied with;
(ii) presently a safety zone of twenty five meter has been fixed for Jamua Ramgarh Sanctuary and other sanctuaries in Rajasthan as against 500 meter for Ranthambhore National Park in Rajasthan itself. In Madhya Pradesh safety zone of 250 meter for all the 20 forest area has been fixed. The CEC is of the view that 5 minimum 500 meter safety zone around National Parks and Sanctuaries is necessary where no mining, construction and other projects should be allowed. Without a reasonable safety zone the habitat and wild life in the National Parks and Sanctuaries are adversely affected. Although stringent conditions are imposed at the time of the sanction of the mining leases, none are practically complied with due to weak enforcement of the laws. The mining causes heavy disturbance in the area due to blasting, removal of over burden, chiseling, transportation, flying debris and movement of a large number of labourers and other persons. The safety zone of twenty five meter presently prescribed by the Rajasthan Forest Department is totally in adequate as the rocks torn apart during blasting can travel much beyond the present safety zone. However, increasing the safety zone to the desired level of 500 meter will result in closure of large number of mines. Taking a holistic overall view of the situation, the CEC recommends that for the Jamua Ramgarh wild life sanctuary, for the "existing" mines the safety zone may be fixed as 100 meter wherein no mining should be permitted. "For new"
mining leases the safety zone may be fixed as 500 meter.
(iii) reclamation and rehabilitation of the area mined inside the sanctuary should be carried out in a time bound manner at the cost of the user agency for which a detailed reclamation and rehabilitation plan along with various items of work, cost involved and time frame should be prepared and implemented on priority basis. The plan presently prepared by the State Government is totally in adequate. It does not provide for reclamation and rehabilitation of the mining pits at all. No provision for removal of stones and rocks scattered in the sanctuary has been made.
Intensive plantations and protection has not been provided. The revised plan should incorporate the above and other necessary measures to provide a congenial habitat for wild life. In the event adequate funds for this purpose cannot be recovered from the erstwhile mine lease owners, the same should be made available by the State Government;
(iv) mining around the sanctuary should be allowed to restart only after a fool proof mechanism is put in place to ensure recovery of funds for implementation of reclamation and rehabilitation plan by the State Government;
(v) exemplary compensation equivalent to the present market value of the entire mineral removed by the respective mine owners by mining inside the sanctuary in violation of the F.C. Act and/or the W. P. Act should be recovered from them on the basis of the recorded production or the estimated figures mentioned in the F.C. Act applications. The money so recovered should be used for protection and development of the sanctuary to its full potential;
(vi) the left over minerals scattered inside the sanctuary should be directed to be removed immediately.
(vii) the left over mining equipments such as cranes etc. should be confiscated and removed outside the sanctuary at the cost of the erstwhile mine lease holders;
6(viii) no mining should be permitted adjoining the sanctuary till the boundary of the sanctuary is demarcated on the ground and the boundary pillars are verified with the fixed reference points;
(ix) disciplinary action should be taken in a time bound manner against the erring officials in the Mines and the Forest Departments of the State of Rajasthan and the MoEF for allowing mining in violation of the F.C. Act, the W. P. Act and/or this Hon'ble Court's order;"
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6. A set of Guidelines for Declaration of Eco Sensitive Zones (ESZ) around National Park and Wildlife Sanctuaries had been formulated by the Ministry of Environment, Forest and Climate Change (MoEF&CC) of the Government of India on 9th February 2011 [F. No.19/2007 WL - I (pt)]. These Guidelines deal with the process and procedures to be adopted for declaring ESZ. In Clauses 3 and 4 of these Guidelines, it has been stipulated:-
"3. Purpose for declaring EcoSensitive Zones:
The purpose of declaring Ecosensitive Zones around National Parks and Sanctuaries is to create some kind of "Shock Absorber"
for the Protected Areas. They would also act as a transition zone from areas of high protection to areas involving lesser protection. As has been decided by the National Board for Wildlife, the activities in the Ecosensitive zones would be of a regulatory nature rather than prohibitive nature, unless and otherwise so required.
4. Extent of Eco-Sensitive Zones:
4.1 Many of the existing Protected Areas have already undergone tremendous development in close vicinity to their boundaries.
Some of the Protected Areas actually lying in the urban setup (Eg. Guindy National Park, Tamil Nadu, Sanjay Gandhi National Park, Maharashtra, etc). Therefore, defining the extent of ecosensitive zones around Protected Areas will have to be kept flexible and Protected Area specific. The width of the Ecosensitive Zone and type of regulations will differ from Protected Area to Protected Area. However, as a general principle the width of the Ecosensitive Zone could go up to 10 Kms around a Protected Area as provided in the Wildlife Conservation Strategy2002.
4.2 In case where sensitive corridors, connectivity and ecologically important patches, crucial for landscape linkage, are even beyond 10 kms width, these should be included in the Eco- sensitive Zone.
4.3 Further, even in context of a particular Protected Area, the distribution of an area of Eco-sensitive Zone and the extent of regulation may not be uniform all around and it could be of variable width and extent."
7(quoted verbatim from paperbook)
7. In Clauses 6 and 7 of the said Guidelines, it has been specified:
"6. The procedure to be adopted:
6.1 As has been indicated in the forgoing paras, the basic aim is to regulate certain activities around National Park and Wildlife Sanctuary so as to minimize the negative impacts of such activities on the fragile ecosystem encompassing the Protected Area. As a first step towards achieving this goal, it is a prerequisite that an inventory of the different land use patterns and the different types of activities, types and number of industries operating around each of the Protected Area (National Parks, Sanctuaries) as well as important Corridors be made. The inventory could be done by the concerned Range Officers, who can take a stock of activities within 10 km of his range.
6.2 For the above purpose, a small committee comprising the concerned Wildlife Warden, an Ecologist, an official from the Local Self Government and an official of the Revenue Department of the concerned area, could be formed. The said committee could suggest the:
(i) Extent of ecosensitive zones for the Protected Area being considered.
(ii) The requirement of such a zone to act as a shock absorber.
(iii) To suggest the best methods for management of the ecosensitive zones, so suggested.
(iv) To suggest broad based thematic activities to be included in the Master Plan for the region.
6.3 Based on the above, the Chief Wildlife Warden could group the activities under the following categories (an indicative list of such activities is attached as ANNEXURE1):
(i) Prohibited
(ii) Restricted with safeguards.
(iii) Permissible 6.4 Once the proposal for Ecosensitive zones has been finalized, the same may be forwarded to the Ministry of Environment and Forests for further processing and notification. Here, it may be noted that, the State/ Union Territory Forest Department could forward the proposals to the respective authority in the State Government with copy to the Ministry of Environment and Forests, as and when the proposals (even if it is for single Protected Area) are complete. An indicative list of details that need to be submitted along with the proposals is at ANNEXURE2.
6.5 It is to mention here that in cases where the boundary of a Protected Area abuts the boundary of another State/Union Territory where it does not form part of any Protected Area, it shall be the endeavour of both the State/ Union Territory Governments to have a mutual consultation and decide upon the width of the ecosensitive zone around the Protected Area in question.
86.6 The State Government should endeavour to convey a very strong message to the public that ESZ are not meant to hamper their day to day activities, but instead, is meant to protect the precious forests/Protected Areas in their locality from any negative impact, and also to refine the environment around the Protected Areas. A copy of the notification of the Sultanpur Ecosensitive Zone issued by the Ministry is attached herewith at ANNEXURE3 for reference and guidance.
7. These guidelines are indicative in nature and the State / Union Territory Governments may use these as basic framework to develop specific guidelines applicable in the context of their National Parks, Wildlife Sanctuaries, important corridors, etc. with a view to minimizing and preferably eliminating any negative impact on protected areas."
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10. The second report of the CEC dated 20th September 2012 makes the following recommendations as regards identification and declaration of ESZ. This report entitled "Note regarding safety zones (Ecosensitive zones) around National Parks and Wildlife Sanctuaries" makes the following recommendations:-
10. After considering that during the last ten years no significant progress has been made regarding identification and declaration of Safety Zones around protected areas and considering the matter in its totality, an implementable scheme has been prepared by the CEC and which has been dealt with in subsequent paragraphs.
11. For the purpose of identification and declaration of the Safety Zones around National Parks/Wildlife Sanctuaries (hereinafter referred to as protected areas), the protected areas based on their areas, are classified into four categories:
i) CATEGORY-A - the protected areas having an area of 500 sq. km. or more. The total number of such protected areas is 73 and their total area is about 1,01,389 sq. km (63.44 % of total area of protected areas);
ii) CATEGORY-B - protected areas having an area between 200 sq. km. to 500 sq. km. The total number of such protected areas is 115 and their total area is about 38942 sq. km. (24.37 % of total area of protected areas);
iii) CATEGORY-C - the protected areas having an area between 100 sq. km. to 200 sq. km. The total number of such protected areas is 85 and their total area is about 12,066 sq. km (about 7.55 % of total area of protected areas); and
iv) CATEGORY-D - the protected areas having an area up to 100 sq. km. The total number of such protected areas is 344 and their total area is about 7,422 sq. km (about 4.65 % of total area of all protected areas).
912. Wherever two or more protected areas are contiguous to each other, such protected areas will be placed in the appropriate category based on the sum total of their areas (and not on the basis of area of individual protected area). The details of some of the contiguous protected areas are given below:
i) Corbett National Park (520 sq. km.) and Sonanadi Sanctuary (301 sq. km) total area is 821 sq. km and therefore both will fall in Category A;
ii) Gir National Park (258 sq. km.) and Gir Sanctuary (1,153 sq. km.) total area is 1,411 sq. km. and therefore both will fall in Category A;
iii) Periyar National Park (350 sq. km.) and Periyar Sanctuary (427 sq. km.) total area is 777 sq. km. and therefore both will fall in Category A;
iv) Satpura National Park (585 sq. km.), Bori Sanctuary (485 sq. km.) and Pachmarhi Sanctuary (417 sq. km.) total area is 1488 sq. km. and therefore all three will fall in Category-A;
v) Valmiki National Park (335 sq. km.) and Valmiki Sanctuary (545 sq. km.) total area is 880 sq . km. and therefore both will fall in Category A;
vi) Tadoba National Park (116 sq. km.) and Andhari Wildlife Sanctuary (509 sq. km.) total area is 625 sq. km. and therefore both will fall in Category A; and
vii) Sariska National Park (273 sq. km.) and Sariska Sanctuary (219 sq. km.) total area is 492 sq. km. and therefore both will fall in Category B;
13. The Safety Zone, in respect of protected areas falling in 'Category A and Category B, may comprise of all the areas including nonforest areas falling within a distance of two kilometers and one kilometer respectively from the boundaries of the protected area. Such distances, in respect of protected areas falling within Category C and Category D, may be kept at 500 meter and 100 meter respectively.
14. The grant/renewal of mining leases (excluding for collection of boulders, gravel and sand from river beds), setting up of hazardous industries, brick kilns, wood based industries (except MDF/Particle Boards Plants) will be treated as prohibited activities within the Safety Zone (ecosensitive zones). The activities such as setting up of industries (other than those included in the list of prohibited activities), hotels and restaurants including resorts, commercial helicopter services, hydel projects, irrigations projects, canals, laying of transmission lines and distribution lines above 33 KV, roads of more than five meter width and collection of boulders, gravel and sand from the river beds will be treated as regulated activities and which will be permissible only after obtaining environment clearance and clearance of the Standing Committee, National Board for Wildlife. All other activities which are not prescribed as prohibited activities or regulated activities will be treated as permissible activities.
1015. The concerned State/UT will be at liberty to shift a protected area from a lower category to higher category (say from Category C to Category B) after considering the importance of the protected area on account of:
i) presence of flagship species/endangered species such as Tiger, Lion, Elephant, Rhino, Snow Leopard, Red Panda, Hangul, Musk deer, Great Indian Bustard, Lion Tailed Macaque, floricans;
ii) fragile ecosystem such as Western Ghats, North Eastern States, areas having high altitude flora and fauna, rain forest, mangroves, marine ecosystem;
iii) World Heritage sites; and iv) Wetland ecosystems
16. The concerned State/UT Governments may after detailed examination of the status of habitation, existing industries and other activities and other relevant factors, and, if found desirable and in public interest forward the proposal(s) for shifting a protected area from a higher category to a lower category. They may also forward the proposal(s) for exclusion of the areas of cities falling within the Safety Zone. The MoEF thereafter will examine such proposals and place such proposals before the Standing Committee of the National Board for Wildlife for its consideration. The proposals cleared by the Standing Committee of the NBWL will be placed before this Hon'ble Court for seeking its permission. It is only after obtaining the permission of this Hon'ble Court that a protected area may be shifted from a higher category to a lower category.
17. The Safety Zones (ecosensitive zones) around National Parks and Wildlife Sanctuaries will be in addition to the following ecosensitive zones notified by the MoEF (and by other notifications, if any):
i) S.O. 20(E), (6/1/1989) Prohibiting industries on MurudJanijira, District Raigadh, Maharashtra;
ii) S.O. 102(E), (1/2/1989) Restricting location of industries, mining & other activities in Doon Valley (UP);
iii) S.0. 416(E), (20/6/1991) Dahanu Taluka, District Thane (Maharashtra) to declare as Ecologically Fragile Area, amended 1999;
iv) S.0.319(E), (7/5/1992) Restricting certain activities causing environmental degradation at Aravalli Range;
v) S.0. 481 (E), (5/7/1996) No Development Zone at Numaligarh, East of Kaziranga;
vi) S.0. 884(E), (19/12/1996) Dahanu Taluka Environment Protection Authority, 1996, amended 2001 ;
vii) S.0. 350(E), (13/5/1998) Order constituting the Taj Trapezium Zone Pollution (Prevent and Control) Authority;
viii) S.0. 825(E), (17.9.1998) Pachmarhi Region as an EcoSensitive Zone;11
ix) S.0. 52(E), (17/1/2001) Mahabaleswar Panchgani Region as an EcoSensitive Zone;
x) S.0. 133 (E), (4/2/2003) Matheran and surrounding region as an EcoSensitive Zone 1. S.0. 83 (E), (16/01/2004) Amendments to S.O. 133(E) dated 4/2/2003;
xi) S.0. 1545(E), (25/06/2009), Mount Abu as EcoSensitive Zone.
xii) S.0. 1260(E), (31/05/2012) Girnar Reserve Forest as EcoSensitive Zone.
18. It is respectfully submitted that the above proposals are submitted in the backdrop of inordinate delay that has taken place in the identification and declaration of Safety Zones around National Parks/ Wildlife Sanctuaries and so as to ensure that the process of such declarations do not remain pending indefinitely."
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27. It has also been highlighted by the State that 25 sanctuaries, 2 national parks have been declared by the State comprising of a total area of 9,07,070 hectares and an area of 23,29,659 hectares of area as forest area or deemed forest is already existing as eco- sensitive/eco fragile/buffer/safety zones in that State within which no non-forest activities is allowed without proper permission under the Forest (Conservation) Act, 1980. The State of Rajasthan has opposed the proposal for declaring 10 kilometres beyond the boundary of sanctuaries and national parks being declared as ESZ.
28. The role of the State cannot be confined to that of a facilitator or generator of economic activities for immediate upliftment of the fortunes of the State. The State also has to act as a trustee for the benefit of the general public in relation to the natural resources so that sustainable development can be achieved in the long term. Such role of the State is more relevant today, than, possibly, at any point of time in history with the threat of climate catastrophe resulting from global warming looming large. This Court has highlighted the Public Trust Doctrine in the case of M.C. Mehta v. Kamal Nath and Others [(1997) 1 SCC 388] and opined that the Public Trust Doctrine is part of the law of land. In Paragraph 25 of the said judgment, as reported, this doctrine has been explained with reference to writings of Joseph L. Sax, Professor of Law, University of Michigan, the proponent of Modern Public Trust Doctrine:-
"25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority:12
"Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses."
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32. The MoEF&CC essentially has argued in favour of having ESZ to be site specific and for that purpose they have invited proposals from individual State Government in the aforesaid Guidelines. In cases where such proposals have not come, they want 10 kilometres periphery of protected forests to be preserved as ESZ. As regards activities permissible within the buffer zone, certain works have been proposed to be regulated and certain activities to be permitted within the ESZ. This has been stipulated in Annexure I to the Guidelines. We have already referred to the prohibited activities. Among the regulated activities, as per these Guidelines are:-
(i) Felling of trees with permission from appropriate authority.
(ii) Establishment of hotels and resort as per approved master plan, which takes care of habitats allowing no restriction on movement of wild animals.
(iii) Drastic change in agricultural systems.
(iv) Commercial use of natural water resources including ground water harvesting as per approved master plan, which takes care of habitats allowing no restriction on movement of wild animals.
(v) Erection of electrical cables with stress on promoting underground cabling.
(vi) Fencing of premises of hotels and lodges. (vii) Use of polythene bags by shopkeepers.
(viii) Widening of roads with proper environmental impact assessment.
(ix) Movement of vehicular traffic at night for commercial purposes.
(x) Introduction of exotic species. (xi) Protection of hill slopes and river banks. (xii) Regulation of any form of air and vehicular pollution.
(xiii) Putting up of sign boards and hoardings.
Within permissible activities fall:
(i) Ongoing agricultural and horticulture practices by local communities.
(ii) Rain water harvesting (iii) Organic farming (iv) Use of renewable energy sources (v) Adoption of green technology for all activities.
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35. The approach of the Court in dealing with complaints of environmental degradation has been laid down by this very Bench in this Writ Petition itself in an order passed on 9th May 2022 in 13 connection with another set of applications. In this Order, it has been observed and held:-
"15. Adherence to the principle of sustainable development is a constitutional requirement. While applying the principle of sustainable development one must bear in mind that development which meets the needs of the present without compromising the ability of the future generations to meet their own needs. Therefore, Courts are required to balance development needs with the protection of the environment and ecology. It is the duty of the State under our Constitution to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on intergenerational equity. 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.
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 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."14
While dealing with the applications in the present set of proceedings, we shall follow the same principles.
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44. We accordingly direct:
a) Each protected forest, that is national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9th February 2011 shall be strictly adhered to. For Jamua Ramgarh wildlife sanctuary, it shall be 500 metres so far as subsisting activities are concerned.
b) In the event, however, the ESZ is already prescribed as per law that goes beyond one kilometre buffer zone, the wider margin as ESZ shall prevail. If such wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular national park or wildlife sanctuary awaiting final decision in that regard, then till such final decision is taken, the ESZ covering the area beyond one kilometre as proposed shall be maintained.
c) The Principal Chief Conservator of Forests as also the Home Secretary of each State and Union Territory shall remain responsible for proper compliance of the said Guidelines as regards nature of use within the ESZ of all national parks and sanctuaries within a particular State or Union Territory. The Principal Chief Conservator of Forests for each State and Union Territory shall also arrange to make a list of subsisting structures and other relevant details within the respective ESZs forthwith and a report shall be furnished before this Court by the Principal Chief Conservator of Forests of each State and Union Territory within a period of three months. For this purpose, such authority shall be entitled to take assistance of any governmental agency for satellite imaging or photography using drones.
d) Mining within the national parks and wildlife sanctuaries shall not be permitted.
e) In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as per the 9th February 2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ.
f) The minimum width of the ESZ may be diluted in overwhelming public interest but for that purpose the State or Union Territory concerned shall approach the CEC and MoEF&CC and both these bodies shall give their respective opinions/recommendations before this Court. On that basis, this Court shall pass appropriate order.15
g) In the event the CEC, MoEF&CC, the Standing Committee of National Board of Wildlife or any other body of persons or individual having special interest in environmental issues consider it necessary for maintaining a wider or larger ESZ in respect of any national park or wildlife sanctuary, such body or individual shall approach the CEC. In such a situation the CEC shall be at liberty to examine the need of a wider ESZ in respect of any national park or wildlife sanctuary in consultation with all the stakeholders including the State or Union Territory concerned, MoEF&CC as also the Standing Committee of National Board of Wildlife and then approach this Court with its recommendations. ......"
8. I.A. No. 131377/2022 in Writ Petition No. 202 of 1995, In Re: T.N. Godavarman Thirumulpad vs Union of India and Ors. was filed before the Hon'ble Supreme Court for modification/clarification of the orders passed by the Hon'ble Supreme Court in W.P. (C) No. 202/1995. The relevant portions of the order are quoted below:
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2. The applicant specifically seeks modification of the directions contained in paragraphs 56.1 and 56.5 of the order dated 3rd June 2022 (supra). The said paragraphs are reproduced hereinbelow:
"56.1. Each protected forest, that is, national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9-2- 2011 shall be strictly adhered to. For Jamua Ramgarh Wildlife Sanctuary, it shall be 500 m so far as subsisting activities are concerned.
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56.5. In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as per the 9-2-2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ."16
3. The clarification/modification of paragraph 56.1 of the order dated 3rd June 2022 (supra) is sought to the extent that the Eco-Sensitive Zones (for short, "ESZs") which have already been notified (final and draft) by the Ministry of Environment Forests and Climate Change (for short, "MoEF & CC") or the proposals for which have been received in the Ministry be exempted from the directions therein. The applicant also sought modification to the extent that paragraph 56.1 of the order dated 3rd June 2022 (supra) may not be made applicable where National Parks and Wildlife Sanctuaries are located along inter- State boundaries and/or common boundaries. Modification /clarification of the directions in paragraph 56.5 of the order dated 3rd June 2022 (supra) in its entirety is additionally sought."
9. The guidelines have been issued with regard to prohibited, regulated and permitted areas and a list of the activities which are prohibited, regulated and permitted is contained in Annexure-I of the said Guidelines.
10. In above petition, Hon'ble Supreme Court in para 48 and other paragraphs observed as follows:
48. If the direction as issued by this Court in paragraph 56.5 of the order dated 3rd June 2022 (supra) is continued, then no permanent structure would be permitted to come up for whatsoever purpose in the aforesaid ESZs. As already pointed out from the aforesaid examples, hundreds of villages are situated within the ESZs in the country. If no permanent construction is to be permitted for any purpose, a villager who is desirous to reconstruct his house would not be permitted.
Similarly, if there is an extension in their family and some additional construction is required for accommodating the enlarged family, the same would also not be permitted. Similarly, if the Government decides to construct schools, dispensaries, anganwadis, village stores, water tanks and other basic structures for improvement of the life of the villagers, the same would also not be permitted. The effect of the order will be to prevent the State or the Central Government from constructing roads and provide other facilities to the villagers.
49. If the order dated 3rd June 2022 (supra) is not modified, it will also be impossible for the Forest Departments to conduct eco- development activities around National Parks and Sanctuaries. The said activities are required with the dual objectives of protection of wildlife and provision of benefits for the local communities. MoEF & CC provides financial assistance to the States under the Centrally Sponsored Scheme-Integrated Development of Wildlife Habitats, which includes assistance for eco-development activities. These activities often involve construction of small structures which are permanent in nature in areas including ESZs. For example, the said activities which are likely to be prohibited are thus:
17i. The construction of community halls, bridges, threshing floors, fish-drying platforms, drinking water storage, etc., for the benefit of local communities/villages;
ii. The construction of forest chowkies, watch towers, and other structures for protection of wildlife and forests; iii. The construction of interpretation centres, toilets and other basic structures for the environmental education of visitors to National Parks and sanctuaries.
50. It is further to be noted that there are various regulated and permissible activities. There are also certain projects of national and strategic importance such as construction of National Highways, Railways, Defence related infrastructure etc. The effect of the direction in 56.5 of the order dated 3rd June 2022 (supra) is that all such activities will be permanently prohibited. In this respect, it is to be noted that MoEF & CC has issued an Office Memorandum dated 17th May 2022 which required that any activity listed in Schedule of the EIA Notification 2006, when conducted in a notified ESZs, or in the case of National Parks and Sanctuaries for which no ESZ has been finally notified, when conducted within 10 kilometres of such National Park or Sanctuary, requires the consideration and recommendation of the NBWL or its Standing Committee in addition to the Environment Clearance under the 1986 Act. Additionally, activities which are regulated as per the specific ESZ notification, require approval as per that notification. As such, we find that there are inbuilt safeguards for preventing rampant construction and abuse of process which may be detrimental to the development and maintenance of wildlife habitats. It is further to be noted that if the direction as contained in paragraph 56.5 of the order dated 3rd June 2022 (supra) that even for continuation of existing activities, the permission of the PCCF of each State or Union Territory would be necessary, remains unmodified, taking into consideration that in each State or Union Territory there will be hundreds of villages wherein millions of people would be residing, the PCCF would be left with no other job except to consider such applications for permission to continue such activities. Even a farmer desirous to continue farming activities would be required to seek such permission. We find that such a direction is impossible to be implemented.
51. We are of the view that if such a direction is continued, rather than avoiding man-animal conflict, it will intensify the same. As observed in the said Guidelines, the requirement of declaring ESZs is not to hamper day to day activities of the citizens but is meant to protect the precious forests/Protected Areas from any negative impact, and to refine the environment around the Protected Areas.
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55. Insofar as direction in paragraph 56.1 of the order dated 3rd June 2022 (supra) is concerned, a perusal of various orders would reveal that this Court has not directed any minimum area from the demarcated boundary of such Protected Areas. The area to be declared as ESZ cannot be uniform and will be Protected Area specific. In some cases, it may be 10 kilometres on one side and 500 meters on the other side. In certain cases, it may not be possible to have a uniform minimum area by virtue of inter-state boundaries or a sea or a river beyond one side of the Protected Area. In any case, a detailed 18 procedure is required to be followed as prescribed under Rule 5 of the 1986 Rules which we have already referred hereinabove. We find that once such a notification is issued after following the procedure prescribed under the 1986 Rules, the ESZs will have to be as per the said notification.
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63. It is further directed that any person who is aggrieved with such a final notification would be entitled to approach this Court directly by filing an application in the present proceedings.
64. We further clarify that the direction contained in paragraph 56.1 of the order dated 3rd June 2022 (supra) would not be applicable where the National Parks and Sanctuaries are located on inter-State borders and/or share common boundaries.
65. We also modify the direction contained in paragraph 56.4 of the order dated 3rd June 2022 (supra) and direct that mining within the National Park and Wildlife Sanctuary and within an area of one kilometre from the boundary of such National Park and Wildlife Sanctuary shall not be permissible.
66. We also modify the directions contained in paragraph 56.5 of the order dated 3rd June 2022 (supra) and replace the same as under:
(i) The MoEF & CC and all the State/Union Territory Governments shall strictly follow the provisions in the said Guidelines dated 9th 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 17th May 2022 issued by MoEF & CC."
11. By filing an additional affidavit, the applicant has stated that in the reply filed under section 6 of the Right to Information Act, 2005, the Divisional Forest Officer, Ballia has responded that the construction of the building was within the eco-sensitive zone and that it falls within the flood plains of the lake.
12. Vide Notification dated 08.03.2019 issued by the MoEF&CC, the area of the Jai Prakash Narayan Bird Sanctuary is recorded as 34.392 sq. kms and in para 3 (1) the State Government was directed to take certain 19 measures for giving effect to the provisions of the Notification with regard to forest, horticulture, agriculture, parks and open spaces earmarked for recreation purposes in the eco-sensitive zone.
13. It is further provided that conversion of land may be permitted on the recommendations of the Monitoring Committee and with the prior approval of the competent authority under Regional Town Planning Act and under Rules and Regulation of Central Government or State Government as applicable and the Monitoring Committee has been notified as follows:
"5. Monitoring Committee for Monitoring the Eco-sensitive Zone Notification: For effective monitoring of the provisions of this notification under sub-section (3) of section 3 of the Environment (Protection) Act, 1986, the Central Government hereby constitutes a Monitoring Committee, comprising of the following namely:
S. Constituent of the Monitoring Committee Designation N. 1 District Magistrate, Ballia Chairman, ex-officio 2 Superintendent of Police/Senior Member Superintendent of Police, Ballia 3 A representative of Non-governmental Member Organization working in the field of wildlife conservation to be nominated by the State Government 4 Executive Engineer of PWD, Ballia Member 5 One expert in Ecology from reputed institution Member or university of the State 6 Executive Engineer of Irrigation Department, Member Ballia 7 District Agriculture Officer, Ballia` Member 8 Wildlife Warden, Kashi Wildlife Division, Member Ramnagar, Varanasi 9 Regional Officer, Uttar Pradesh State Pollution Member Control Board, District Ballia 10 Divisional Director, Social Forestry Division, Member Secretary Ballia
14. Accordingly, in light of the provisions contained in Section 5 of the Gazette notified on 08.03.2019, the matter of consideration within Rule 3(1) must be considered by the competent Committee as notified and quoted above in Rule 5.
2015. In view of the above provisions, we direct as follows:
i. The matter referred in the letter petition may be placed before the competent committee called Monitoring Committee for monitoring the eco-sensitive zone as notified in Section 5 of the Notification dated 8.3.2019 issued by MoEF&CC and the Committee shall strictly comply with the provisions contained in the notification.
ii. MoEF&CC and State of UP shall strictly follow the provisions in the guidelines dated 9.2.2011 and provisions contained in the ESZ Notification pertaining to respective protected areas with regard to prohibited, regulated and permissible activities.
iii. The Monitoring Committee quoted above is directed to strictly follow the guidelines and take necessary action according to Rules and to ensure that there should not be violation of environmental laws.
iv. Activities within the area should be regulated in accordance with guidelines issued and we further direct that while granting Environmental Clearances/Forest Clearances for project activities in eco-sensitive zone, the District Administration and State of UP shall strictly follow provisions contained in the Office Memorandum dated 17.05.2022 issued by the MoEF&CC. The matter of dispute coming within the provisions of Forest Act and other Acts shall be placed before Settlement Officer (Forest) for demarcation and identification of land and the Settlement Officer (Forest) shall decide the matter in accordance with the rules and anyone aggrieved by the order of Settlement Officer (Forest), has a right to appeal or revision according to law.21
16. The letter petition/Original Application stands disposed of in light of above observations.
17. A copy of this order be forwarded to District Magistrate, Ballia, Chairman, ex-officio of the Monitoring Committee as provided under Section 5 of the Gazette Notification dated 08.03.2019 for information and necessary action.
Sheo Kumar Singh, CP Arun Kumar Tyagi, JM Dr. A. Senthil Vel, EM July 12, 2023 Original Application No. 698/2022 DV 22