National Green Tribunal
Brajesh Kumar Bharadwaj vs State Of Madhya Pradesh on 22 October, 2024
Item No. 08
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 188/2023(CZ)
(O.A.No.619/2023 - PB)
Brajesh Kumar Bharadwaj Applicant(s)
Vs.
State of Madhya Pradesh & Ors. Respondent(s)
Date of Hearing: 22.10.2024
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. A SENTHIL VEL, EXPERT MEMBER
For Applicant (s): Ms. Brajesh Kumar Bharadwaj
(Applicant in Person)
For Respondent(s) : Mr. Mehul Bhardwaj, Adv.
Mr. Pranjal Pandey, Adv.
Dr. Sapna Aggarwal, Adv.
ORDER
1. 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 1 O.A. No. 188/2023(CZ) Brajesh Kumar Bharadwaj Vs. State of Madhya Pradesh & Ors. 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.
2. 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.
3. 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.
4. 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:
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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
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
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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
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 4 O.A. No. 188/2023(CZ) Brajesh Kumar Bharadwaj Vs. State of Madhya Pradesh & Ors.
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 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).
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O.A. No. 188/2023(CZ) Brajesh Kumar Bharadwaj Vs. State of Madhya Pradesh & Ors.
5. Since, the expansion of the Pachmarhi airstrip is not in accordance to the regulated activities mentioned in Paras 4(13) (16) (23) & Para 6(1) & (2) of the Eco-Sensitive Zone Notification of Satpura Tiger Reserve, hence, such commercial expansion of the airstrip is in violation of the law so established and therefore, illegal. As per the ESZ Notification, no such construction can be taken place within 1 km of the Protected Area. A. Project is operating without obtaining the mandatory Environmental Clearance:
6. The Environment Impact Assessment Notification (EIA), 2006, under Para 2 states that all projects require an EC from the concerned regulatory authority which are listed in its Schedule. Further, Para 2(ii) requires expansion and modernization of existing projects or activities listed in the Schedule to this notification to also obtain an EC, with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization. Accordingly, as per Item 7(a) of the Schedule of the EIA Notification, all projects including airports for commercial use require an Environmental Clearance from the Central Government as it is a Category 'A' project. The relevant portion is reiterated below:
Project Category with threshold limit Conditions Activity if any A B 7(a) Air ports "All projects "Note - : Air strips, including which do not involve airstrips, which bunkering/ refueling are for facility and or Air commercial use." Traffic Control are exempted."
7. With respect to the expansion project of the non-functional airstrip, the above-mentioned extract from the Schedule of the EIA Notification, 6 O.A. No. 188/2023(CZ) Brajesh Kumar Bharadwaj Vs. State of Madhya Pradesh & Ors. clearly states that the Project required an EC from the MoEF&CC, prior to commencement of the construction activity as it is a Category 'A' project. Although the Schedule under Item 7(a) provides an exemption for air strips which do not involve bunkering/refueling facility and or Air Traffic Control, this exemption would not he applicable in the present case due to it being in a Notified ESZ/Biosphere/Tiger Reserve Area . This is because, according to an Office Memorandum FC-11/119/2020- FC of MoEF&CC (Forest Conservation Division) dated 17.05.2022, projects/activities which may or may not be regulated under the notified ESZ Notification, but are covered in the Schedule of the EIA Notification, 2006 are mandatorily required to obtain EC. Hence, the Project Proponent ought to apply and obtain EC prior to commencement of the construction activity. The relevant portion from the said OM is reproduced 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 Environmental Project/Activity For For Clearance (EC) shall be project/activity Project/Activity regulated and covered under covered under governed by the the Schedule of the Schedule of concerned EIA Notification, ELA Notification.
ESZ/ESA 2006; prior EC 2006: prior EC
Notification. as per the as per the
Accordingly. prescribed prescribed
activities procedures procedure
prohibited under mandatory mandatory is
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the ESZ/ESA anywhere anywhere
Notification outside the PA. outside the PA.
cannot be
undertaken.
Whereas, for
regadated and
other activities
in ESZ/ESA
Notification
covered under
the Schedule of
ELA Notification.
2006 prior EC as
per the
prescribed
procedure is
mandatory.
8. It is further submitted that the project has not obtained wildlife clearance from the Standing Committee, National Board of Wildlife and National Tiger Conservation Authority (NTCE) and is in violation of the notification O.M. dated 17.05.2022 issued by the MoEF&CC, O.M. 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 the project proponent ought to take clearance from the SCNBWL as well.
It is further submitted that it is in violation of the Wildlife (Protection) Act, 1972. The relevant portion is reiterated below:
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O.A. No. 188/2023(CZ) Brajesh Kumar Bharadwaj Vs. State of Madhya Pradesh & Ors.
Clearance Project/Activity is Project/Activit Project/Activity
Category Notified ESZ y outside PA outside PA in area
Around PA or in wherein ESZ is which is part of
notified ESA Tiger Reserve or
linking one PA or
Tiger Reserve to
another PA or
Tiger Reserve
Considerati Project/Activity Project/Activity Approval of
on by the proposed to be covered under NBWL/SCNBWL
National located within the Schedule of mandatory if the
Board of notified ESZ/ESA EIA Notification, project/activity is
Life/Standi shall be regulated 2006 and proposed to be
ng Wild and governed by located within located in an area
Committee the concerned ESZ 10 km of which forms or part
of the Notification. National Park or of a Tiger Reserve
National Accordingly, Sanctuary shall with another PA or
Board for activities prohibited require Tiger Reserve as
Wild Life under the consideration per section
(NBWL/SC ESZ/ESA by the NBWL/ 380(1)(g) of the
NBWL) Notification shall SCNBWL. Wild Life
not be undertaken. (Protection) Act.
Whereas, regulated 1972.
and consideration
by other activities
proposed the within
notified ESZ
around National
Park or Sanctuary
shall require
consideration by
the NBWL
/SCNBWL, is such
activity is covered
under the EIA
Notification. 2006
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9. Section 38 V (4) (i) of the Wildlife (Protection) Act, 1972 expressly states that the core or critical tiger habitat (CTH) areas designated in national parks and wildlife sanctuaries must be kept as Inviolate for the purposes of tiger conservation. The aircraft engine's loud noise will routinely interrupt the inviolate state of the peripheral core area/critical tiger habitat on both ground and air, during the engine startup, takeoff run, takeoff, approach, landing, diversions. holding, and various ground activities connected to the vehicular movements for passengers to and from the airfield. Certain engine operations need the use of full power on the ground, resulting in extremely loud noises.
Section 38 V (4) (ii) of the Wildlife (Protection) Act, 1972 requires to ensure the integrity of the critical tiger habitat with adequate dispersal for tiger species, which would be impacted due to aircraft operations. Section 38 O (1)(b) requires tiger conservation authority to disallow any ecologically unsustainable land use such as, mining, industry and other projects within the tiger reserve.
Section 38 O (1) (k) requires tiger conservation authority to carry out the purposes of this Act with regard to conservation of tigers and their habitats. 19.
10. As per a study published in the Defense Life Science Journal in July, 2020, titled "Wildlife Collisions to Aircrafi in India- A Comparative Analysis of Hazardous Species Involved in Different Time Period" it was found that the wildlife collision to aircrafts have increased. concerns of aviation safety in recent years. It was concluded that:
"....As the number of flights increase in the airspace, the problem of their collision with birds (and wildlife in general) will also increase. WS is a peculiar problem which demands constant assessment and novel methods to 10 O.A. No. 188/2023(CZ) Brajesh Kumar Bharadwaj Vs. State of Madhya Pradesh & Ors.
tackle the hazard. In the civil aviation sector, the wildlife strikes recorded every year is increasing, In IAF, the crashes due to WS are becoming less but total strikes and the economic losses continue to rise.
11. The Directorate General of Civil Aviation (DGCA) had asked all airport operators to review their wildlife management plan previous year, over rising cases of wildlife collisions with aircrafts. The communication stated that during monsoon season wildlife activity increases in and around airports, and the presence of the birds and animals in the aerodrome vicinity poses a serious threat to operational safety, and hence, asked the operators to check for any gaps in implementation of the wildlife management plan. Considering the close proximity of the airstrip in Pachmarhi to the protected area, it is bound to cause wildlife collision with the commercial aircrafts, endangering the life of rare fauna present there.
12. Notices were issued to the MoEF&CC and in compliance thereof, the affidavit has been filed by the Deputy Director General of the Forest, Regional Office, Ministry of Environment, Forest and Climate Change, Bhopal, with the facts that vide letter dated 13.12.2023 has communicated guidelines for seeking recommendations of the Standing Committee of National Board for Wild Life to all the States and Union Territories.
13. As per Section 38-0(1)(g) of the Wild Life (Protection) Act, 1972, the land under the tiger reserves (both core and buffer zones) cannot be diverted without the approval of the National Board for Wild Life (or its Standing Committee).
14. As per section 51 of the Wild Life (Protection) Act, 1972, any person who contravenes any provision of this Act or any rule or order made there 11 O.A. No. 188/2023(CZ) Brajesh Kumar Bharadwaj Vs. State of Madhya Pradesh & Ors. under or who commits a breach of any of the conditions of any license or permit granted under this Act, shall be guilty of an offence against this Act. Further, section 55 of the Act empowers the Chief Wild Life Warden, or any other officer authorised in this behalf by the State Government to file complaint against an offence.
15. It is also submitted that the Eco-sensitive Zone around the Satpura Tiger Reserve has been notified vide notification dated 09.08.2017. Accordingly, the Member Secretary of the Monitoring Committee or the concerned Collector(s) or the concerned park Deputy Conservator of Forests shall be competent to file complaints under Section 19 of the Environment (Protection) Act, 1986 against any person who contravenes the provisions of this notification.
16. Guidelines regarding submission of proposal for consideration of the Standing Committee of the National Board of Wildlife notified by the MoEF&CC vide order dated 13.12.2023 provides as follows:-
1. "ACTIVITIES WITHIN TIGER RESERVES AND LINKING AREAS:
The Protected Areas constituting a Tiger Reserve attract all the provisions applicable for National Parks or Sanctuaries. In addition, per section 38-0 (1) (g) of the WLPA, for approval of NHWL and advice by the National Tiger Conservation Authority (NTCA) are required for activities within tiger reserve and in areas linking one Protected Area or tiger reserve with another Protected Area or tiger reserve for ecologically unsustainable uses, except in public interest. 12 O.A. No. 188/2023(CZ) Brajesh Kumar Bharadwaj Vs. State of Madhya Pradesh & Ors.
2. ALTERATION OF BOUNDARIES:
In view of sections 264 (3), 35 (3) and 35 (5) of the WLPA, no alteration of the boundaries by the State Government of a sanctuary, National Park in respect of which the State Government has declared its intention by notification for constitution National Park shall be made except recommendation of the NBWL/SCNWBL.. Further, view of section 38W of the Act, no alteration in the boundaries of a tiger reserve can be made except on a recommendation of the NTCA and the approval of the NHWL/SCNBWL.
3. ACTIVITIES INSIDE ECO-SENSITIVE ZONES:
Notifications of Eco-Sensitive Zones (ESZ) specify the activities. which are prohibited, regulated and promoted in the ESZ. Proposals for prohibited activities in the ESZ notification and the guidelines regarding declaration of ESZ issued by the Ministry dated 9.2.2011 (in view of order of Hon'ble Supreme Court dated 28.04.2023 in W.P. (C) No. 202 of 1995) should not be forwarded for consideration of the SCNBWL. For taking up any activity within an ESZ, if notified, within 10 km zone of the boundary of National Parks sanctuaries, if ESZ has not been notified, prior approval of the SCNBWL shall be required: i. for construction and allied activities undertaken by and for Indian Railways and any of its subsidiaries/sister concerns ii. if the activity/project is listed in the schedule of the Environment Impact Assessment Notification, 2006 as amended from time to time.
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4. PROCEDURE TO BE FOLLOWED FOR CONSIDERATION OF PROPOSALS BY THE STANDING COMMITTEE OF NATIONAL BOARD FOR WILDLIFE:
i. The User Agency shall submit the proposal online on PARIVESH portal of the Ministry mandatorily as communicated vide Ministry's letter F.No.6-137/2017 WL (pt.1) dated 22.11.2018. A. User Manual of online submission and monitoring of Environmental, Forests and Wild Life Clearance at https://parivesh.nic.in. No proposal submitted for consideration of the NBWL/SCNBWL in physical form shall be entertained by the Ministry.
ii. The user agency can also track the movement of the proposal through different stages of processing through the online clearance system.
iii. The roles of various agencies involved in the process.
and actions required to be taken are provided in the mamual. In case of difficulty, the details of concerned to be contacted have also been provided."
5. Learned counsel for the MoEF&CC has submitted that the compliance affidavit on behalf of the MoEF&CC has been filed and is on record. Reply on behalf of Director General of Civil Aviation (DGCA), Govt. of M.P. has been filed but this does not clearly depict the picture as to whether the necessary permission from the competent authority has been taken or not. Simply narration of facts does not disclose that the works as done by the PWD or respondents are in accordance with the provisions of law.
6. The applicant has filed the additional documents with the copy of the order of the Hon'ble Supreme Court and further sought some time to file the rejoinder against the reply by the MoEF&CC and the State. 14 O.A. No. 188/2023(CZ) Brajesh Kumar Bharadwaj Vs. State of Madhya Pradesh & Ors.
7. Learned counsel for Director General, Forest and National Tiger Conservation Authority have submitted that the reply submitted by the MoEF&CC is adopted by them.
8. The rejoinder/reply/action taken report may be filed within three weeks.
List it on 09th January, 2025.
Sheo Kumar Singh, JM [ Dr. A Senthil Vel, EM 22nd October, 2024 O.A. No. 189/2023(CZ) PN 15 O.A. No. 188/2023(CZ) Brajesh Kumar Bharadwaj Vs. State of Madhya Pradesh & Ors.