Calcutta High Court (Appellete Side)
Meena Gupta vs Union Of India on 20 February, 2025
20.02.2025
Item No.32
gd/ssd
WPA(P)/16/2025
MEENA GUPTA
VS
UNION OF INDIA
Mr. Yogeshwaran. A.
Ms. Poongkhulali B.
Mr. Pushan Majumdar
..for the Petitioner.
Mr. Ashok Kr. Chakraborty, Ld. ASGI,
Mr. Kumar Jyoti Tewari,
Ms. Amrita Pandey,
Mr. Anirudha Tewari
..for the Respondent.
1. This is a public interest litigation filed by a retired civil servant who worked in the Indian Administrative Service from 1971 to 2008 when she retired as Secretary, Government of India, Ministry of Environment and Forests. The petitioner would state that she served in the sectors of environment, forests, tribal affairs, labour and health. She also worked for four years with the office of the International Labour Organisation in Delhi and served as Secretary to Government of India, Ministry of Tribal Affairs, during which period she was actively engaged in the finalization of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Bill, prior to it becoming an Act. 2
2. Thus, we have little doubt in mind as regards the locus standi of the petitioner to bring about this public interest writ petition.
3. The petitioner seeks for issuance of a Writ of Certiorari to quash the Notification issued by the respondent dated 12.3.2021 in S.O. 1194(E) has been ultra vires the Environment (Protection) Act, 1986, Articles 14 and 21 of the Constitution and the Guidelines dated 9th February, 2011 issued by the respondent/Ministry.
4. By the impugned Notification the respondent has declared 0 Kilometer Eco Sensitive Zone (ESZ) on the Western, Southern and major part of the Eastern boundary of the Galathea National Park (GNP) and 0.5 Kilometer ESZ along with the shorter extent of Eastern boundary and 1 Kilometer on the Northern boundary of GNP towards Campbell Bay National Park.
5. The petitioner's case is that until issuance of the impugned Notification, a default ESZ of 10 Kilometer was enforced and the projects located within this distance were subjected to further scrutiny by the Standing Committee of the National Board for Wildlife (NBWL).
6. In this regard, several Notifications have been referred to. The Points of Law which have been raised in this writ petition are as hereunder: 3
A A. Whether the impugned Notification stipulating inadequate / non-existent eco- sensitive zone of 0, 0.5 and 1 km around the Galathea National Park is ultra vires the powers of the Respondent under Section 3 of the Environment (Protection) Act, 1986 as the Notification is not for the purpose of protecting and improving the environment.
B B. Whether the impugned notification is in violation of the Guidelines for declaration of Eco C sensitive zones issued by the Respondent ministry on 09.02.2011.
A C. Whether the impugned notification is violative of Articles 14 and 21 of the Constitution of India and is manifestly arbitrary.
B D. Whether the recommendation and acceptance of the subject ESZ proposal by the expert appraisal committee (EAC) of the Respondent is vitiated by non-application of mind, is bereft of reasons and is arbitrary and illegal.
C E. Whether the file noting of the Respondent makes it evident that the impugned notification has been issued without consideration of the need to protect the biodiversity of the GNP and the Shompen. D F. Whether the failure of the Respondent to take notice of the recommendation of the Wildlife Institute of India vitiates the impugned Notification.
E G. Whether the Respondent has failed to appreciate the fact that Eco Sensitive Zones are meant to act as a shock absorber around the protected area, to dampen the impact of surrounding activities and the 0, 0.5 and 1 km ESZ, notified by the Respondent does not serve this purpose.
F H. Whether the Respondent has failed to see that even the 1 km buffer has been notified only on the boundary along the Campbell Bay National Park, to the north; around the areas where development is proposed, on the east, west and south, a 0 km ESZ has been proposed, with a limited stretch of 0.5 km ESZ on the east, which is arbitrary and constitutes a fraud on the powers bestowed on the Respondent by law. G I. Whether the Respondent has failed to see that the reasons / justifications given by the administration for the 0, 0.5 and 1 km ESZ for 4 the Galathea Bay National Park are irrelevant for the purpose of notification of an Eco Sensitive Zone under Section 3 of the Environment (Protection) Act, 1986, and the reasons and justifications are false.
H J. Whether the Respondent ought not to have completed the entire process during the COVID 19 pandemic, effectively rendering the process nugatory, especially considering the fact that no urgency has been cited in the impugned Notification.
7. In paragraph 7 of the writ petition the petitioner has mentioned seven points as to the challenge to the impugned Notification.
8. Our attention was drawn to the annexures along with the writ petition and in particular the impugned Notification. A bear reading of the impugned Notification it is seen that while preparing the Draft Notification the importance of the GNP has been highlighted and has been elaborately stated. The impugned Notification has been issued in exercise of the powers conferred under Section 3 of the Environment (Protection) Act, 1986. Among other things what is required to be considered is whether the power under Section 3 could have been invoked in the instant case to restrict the ESZ 0 to 0.1 Kilometers from the National Park and whether the same would be necessary or expedient for the purpose of protecting and improving the quality of the environment and preventive, controlling and abating environmental pollution. Clause XIV of sub-section (2) of Section 3 has also been referred to which also speaks of the 5 power of the Central Government to be exercised in such other matters for the purpose of securing effective implementation of the provisions of the Act. The Hon'ble Supreme Court in Alembic Pharmaceuticals Limited v. Rohit Prajapati in (2020) 17 SCC 157 wherein the Hon'ble Supreme Court while testing the correctness of the Circular issued by the respondent dated 14.5.2002, pointed out that for an action of the Central Government to be treated as a measure referable to Section 3, it must satisfy the statutory requirement of being necessary or expedient "for the purpose of protecting and improving the quality of the environment and preventive, controlling and abating environmental pollution". It was held that the Circular dated 14.5.2002 which was subject matter of challenge in the said writ petition does not satisfy the said requirement.
9. Therefore, we are to consider in this case as to whether the power which was exercised by the respondent under Section 3(1), (2) and (3) of the Environment (Protection) Act subserves the powers for which such power was conferred on the respondent.
10. The learned Additional Solicitor General submitted that the impugned Notification was issued as early as on 12th March, 2021 and the challenge to the said Notification is belated.
6
11. The learned advocate appearing for the petitioner explained that the entire process took place during the pick of Covid and there was a lock down and the Andaman & Nicobar Islands were severely affected on account of poor connectivity and no broad band connection which has been highlighted in the several Articles by the Press. Furthermore, it is submitted that though it has been stated in the impugned Notification that the Draft Notification was published and objections or suggestions on the proposals contained in the Draft were called for, it is pointed out that the text of the Draft Notification was published in a paper which is circulated in the Andaman & Nicobar Islands called Daily Telegrams and the Notification was in such fine and small print which a common man would definitely missed out. Though the paper publication states that the Notification can be accessed through the website of the Ministry, when the petitioner attempted to do so the Draft Notification was not available and what appeared in the screen was "page not found".
12. Therefore, it is submitted that the challenge to the impugned Notification is not belated.
13. That apart, the projects are yet to commence and it appears that the projects which are proposed to be developed in the area are in the pipeline and at various stages.
7
14. Further, it is pointed out that the Wildlife Institute of India to which the Draft Notification was sent has given their opinion on 30th September, 2020 and a perusal of the said opinion qua GNP it is seen that they have flagged the issue with regard to the buffer zone and also stated that the important ecological sensitive areas around the National Park are missed out.
15. Therefore, it is submitted that when use of the Wildlife Institute of India are called for it definitely would sway in the minds of the respondent, more particularly the Sub-Committee which has been constituted for declaration of the Eco Sensitive Zone. In fact, the Minutes of the 44 th Meeting of the Expert Committee held on 18th January, 2021 has been annexed to the writ petition and a cursory reading of the same, we find that there appears no reference to the opinion of the Wildlife Institute of India.
16. Thus, to consider all these issues and other issues that may be placed before this court when the matter is heard, the respondents have to file their affidavit.
17. This court has recorded the above facts and the submissions in order to give a broad overview as to the broad parameters on which the impugned Notification has been put to challenge. 8
18. The appropriate authority of the respondents shall file their affidavit within five weeks from date. Advance copy/soft copy of the same be served on the learned advocate appearing for the petitioner.
19. Since it has been submitted that the projects which were envisaged are in the pipeline are yet to be implemented, the question of granting any interim order at this stage may not arise.
20. However, we give liberty to the petitioner to move appropriate application if as and when a need arises prayer for any interim order.
21. List this matter on 10th April, 2025.
(T. S. SIVAGNANAM) CHIEF JUSTICE (CHAITALI CHATTERJEE (DAS), J.)