Gujarat High Court
Param vs State on 3 February, 2011
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
Gujarat High Court Case Information System
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SCA/601/2011 1/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 601 of 2011
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PARAM
UDHYOG THROUGH PARTNER MEHUL D PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 2 - Respondent(s)
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Appearance
:
MR AMIT PANCHAL with MS SHIVANI
RAJPUROHIT for
Petitioner(s) : 1,
MR HK PATEL, AGP for Respondent(s) : 1,
None
for Respondent(s) : 2 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 03/02/2011
ORAL
ORDER
1. Learned advocate Mr. Amit Panchal with Ms. Shivani Rajpurohit for the petitioner moves draft amendment. The same is allowed.
2. Notice to the newly added respondents returnable on 10.2.2011.
3. Learned AGP, Mr. H.K. Patel, instructed by Mr. Y.L. Verma, Deputy Conservator of Forests, made available for perusal an order of the Hon'ble Apex Court in I.A. No. 1598-1600 in Writ Petition (C) No. 202 of 1995 and connected matters dated 4.8.2006. The learned AGP invited attention of the Court to the order passed in I.A. Nos. 1413, 1414, 1454 in I.A. Nos. 1413, 1426, 1428, 1440, 1439, 1441, 1444-1445, 1459 and 1460 in Writ Petition (C) No. 202 of 1995. The relevant part of the order reads as under :-
By order dated 16.9.2005, it was, inter alia, directed that no Temporary Working Permissions or Temporary Permit or any other permission, by whatever name called, shall be granted for mining activities in the National Parks, Sanctuaries and Forest areas. It was further directed that no mining activity would continue under any Temporary Working Permit or Permission (TWP), which may have been granted. This order was later relaxed on the applications filed by some of the applicants. Suggestions have been filed by the learned Amicus Curiae and the Ministry of Environment and Forests, besides the Federation of Indian Minerals Industries (FIMI) regarding the conditions, which would govern grant of TWP.
On consideration thereof, the conditions precedent for the grant of TWPs as well as the procedure for their grant shall be as provided hereinafter. At the outset, it is clarified that TWPs shall be granted only where the following conditions are satisfied.
Pre-Conditions :-
(i) TWPs can only be granted for renewal of mining leases, and not where the lease is being granted for the first time to the applicant user agency,
(ii) The mine is not located inside any National Park/Sanctuary notified under Section 18, 26-A or 35 of the Wildlife (Protection) Act, 1972,
(iii) The grant of the TWP would not result in any mining activity within the safety zone around such areas referred to in (ii) above, (as an interim measure, one kilometer safety zone shall be maintained subject to the orders that may be made in I.A. No. 1000 regarding Jamua Ramgarh Sanctuary),
(iv) ................
From the aforesaid, it is clear that the Hon'ble Supreme Court clearly provided that the TWP should not result in any mining activity within the safety zone. The safety zone referred to by the Hon'ble the Apex Court was with regard to areas which are referred to in condition No.
(ii). Areas referred to in condition No. (ii) are, (i) National Park, and (ii) Sanctuary, which are notified under Sections 18, 26-A or 35 of the Wild Life (Protection) Act, 1972.
On reading the order of the Hon'ble Apex Court, further, it is clear that as an interim measure, the Hon'ble Apex Court provided that in absence of any specific provision having been made, 1 km. shall be maintained as a safety zone, this was specifically made subject to the orders that may be made in I.A. No. 1000 regarding Jamua Ramgarh sanctuary, by the Hon'ble Apex Court.
4. Learned advocate for the petitioner invited the attention of the Court to a decision of the Hon'ble Apex Court in the matter of In Re:
Construction of Park at Noida, Near Okhla Bird Sanctuary Anand Arya and another Vs. Union of India and others, reported in (2011) 1 SCC 744. Learned advocate rightly invited the attention of the Court to Para 73 of the said judgment, wherefrom it is clear that the aforesaid safety zone of 1 km. is not varied by the Hon'ble Apex Court by any subsequent orders. The relevant part of the judgment reads as under :-
32. The issue regarding identification/ notification of eco-sensitive zones around the national park and sanctuaries is presently pending for consideration before this Hon'ble Court. The National Board of Wildlife (NBWL) had earlier decided that area within 10 km around national parks/sanctuaries should be the eco-sensitive zone. Later on, it was decided by NBWL that eco-sensitive zone should be specific to each national park/sanctuary. The CEC had recommended that 500 m around national park/sanctuary should be declared as eco-sensitive zone. The recommendation of the CEC has not so far been accepted by the Hon'ble Supreme Court after the learned amicus curiae took a view that 500 m may not be adequate. Pursuant to this Hon'ble Supreme Court's order dated 4.8.2006 in the TWP matter, mining is presently prohibited up to a distance of one kilometre from the boundary of national parks/ sanctuaries.
For other projects, no restriction has so far been imposed. The MoEF has time and again requested the States/UTs to identify the eco-sensitive zones around the national parks/sanctuaries. However, the State of Uttar Pradesh has so far not prepared any proposal in this regard. The CEC is of the view that in the absence of a decision/notification, presently there is no legal restriction against the implementation of the project on the ground that the project is adjacent to the Okhla Bird Sanctuary.
5. At this juncture, it will be appropriate to consider the observations of the Hon'ble Apex Court with regard to the State creating such situation by not taking any decision and issuing any notification. In this regard, Para 74 is material which is reproduced for perusal :-
74. The report of the CEC succinctly sums up the situation. Though everyone, excepting the project proponents, view the construction of the project practically adjoining the bird sanctuary as a potential hazard to the sensitive and fragile ecological balance of the sanctuary there is no law to stop it.
This unhappy and anomalous situation has arisen simply because despite directions by this Court the authorities in the Central and the State Governments have so far not been able to evolve a principle to notify the buffer zones around sanctuaries and national parks to protect the sensitive and delicate ecological balance required for the sanctuaries. But the absence of a statute will not preclude this Court from examining the project's effects on the environment with particular reference to the Okhla Bird Sanctuary.
For, in the jurisprudence developed by this Court environment is not merely a statutory issue. Environment is one of the facets of the right to life guaranteed under Article 21 of the Constitution. Environment is, therefore, a matter directly under the Constitution and if the Court perceives any project or activity as harmful or injuries to the environment it would feel obliged to step in. The question of the likelihood of the project causing any adverse effects on the Okhla Bird Sanctuary must, therefore, be examined from this angle.
6. In the present case, the petitioner has placed on record a Government Resolution dated 2.4.2008 which pertains to regarding obtaining of No Objection Certificate for the purpose of permission of industrial activities/mining in the known forest area within a radius of 5 kms. from the area declared as Sanctuary/National Park/Conservation Reserve. The opening para of the resolution reads as under :-
It shall be obligatory to obtain No Objection Certificate of the Forest Department before grant of permission to carry out mining or establish an industry in the entire non-forest land coming within the radius of 5 kms. from the boundary of the National Park/Sanctuary/Conservation Reserve declared in the State under the Wild Life Protection Act. As per the interim order of the Hon'ble Supreme Court, this limit shall be 10 kms. in case of Narayan Sarovar Chinkara Sanctuary. ........
7. This Court is of the opinion that this resolution is contrary to the directions issued by the Hon'ble Apex Court by the aforesaid order dated 4.8.2006, wherein the Hon'ble Apex Court provided 1 km. as a safety zone, required to be maintained, within which no mining activity shall take place by grant of any TWP.
8. The Additional Chief Secretary of Forests and Environment Department is directed to file an affidavit explaining the aforesaid situation and the observation made hereinabove that, 'the resolution dated 2.4.2008 is found to be in violation of the directions issued by the Hon'ble Apex Court.' Besides the Additional Chief Secretary, Forests and Environment Department is also directed to file an affidavit placing on record as to how many TWPs are issued by the concerned department with or without 'No Objection Certificate' issued, if any, by the Forests and Environment Department. The Additional Chief Secretary will also see to it that the reply contains response to Para 4.12 of the amendment which has been granted today.
9. The reply must be filed on or before 9.2.2011, failing which, the Additional Chief Secretary shall personally remain present before this Court.
A copy of this order be made available to the learned AGP for its onward communication.
[RAVI R. TRIPATHI, J.] mrpandya Top