National Green Tribunal
Capt. Brajesh Bharadwaj vs State Of Madhya Pradesh on 21 September, 2023
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Item No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No.92/2023(CZ)
(O.A.No.452/2022- PB)
Captain Brajesh Bharadwaj Applicant(s)
Versus
State of Madhya Pradesh & Ors. Respondent(s)
Date of Hearing : 15.09.2023
Date of uploading : 21.09.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. A SENTHIL VEL EXPERT MEMBER
For Applicant(s): Applicant in Person
For Respondent(s) : Mr. Mehul Bhardwaj, Adv.
Dr. Sapna Agarwal, Adv.
Ms. Parul Bhadoria, Adv.
Regional Officer, Jabalpur
ORDER
1. Article 21, 48 (A) and 51(A) (g) of the Constitution of India provides a mandate to the State and citizen of India to protect and improvement of environment and to safeguard the Forest and Wildlife of the country and to have compassion for leaving creatures. Precautionary Principles have been accepted on the part of the Law of the Land. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. 2
2. The applicant has sent the present letter petition, which has been treated and registered as original application, complaining about Mega construction activities in Eco-Sensitive Zone of Pench Tiger Reserve Seoni, Madhya Pradesh roughly 200 meters from the core area boundary at Awarghani Rayyat village, Khawasa buffer near Turiya Gate, Madhya Pradesh. The applicant has submitted that a huge artificial pond is being constructed and the mud from the same is being used to create a hill slope (12ft. high) around the border wall running across several acres. The construction site is surrounded by a high fencing secured to the cemented boundary wall and is being monitored by flying drone over the same. The construction violates various provisions of the Gazette Notification dated O.A. No.452/2022 Capt. Brajesh Bharadwaj Vs. State of M.P. -2- 06.11.2019 of Eco-sensitive Zone (ESZ), Pench Tiger Reserve Seoni, Section 38V-3(b) and Section 38(o) (1) (g) of the Wildlife Protection Act, 1972,. Vehicular pollution is being caused by emissions from construction vehicles plying in ESZ. Heavy earth moving machinery in operation also blows huge cloud of dust to nearby core area of park. Mud from the nearby construction will clog Nala flowing adjacent to the site. The area very close to the core area boundary is being diverted for ecologically unsustainable uses and the high mud slope barriers will obstruct tiger dispersal and will also affect their breeding habitant within protected area.
3. The matter was taken up by this Tribunal on 26.07.2022 and after considering the facts as narrated by the applicant, this Tribunal constitute a committee with directions as follows :
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―In view of the averments made in the application, it would be appropriate to have a factual and action taken report from a Joint Committee comprising of the Regional Office of MoEF & CC, Bhopal, Principal Chief Conservator of Forest (HoFF), Director, Pench Tiger Reserve Seoni, Madhya Pradesh, State PCB and District Collector, Chhindwara, Madhya Pradesh. The Joint Committee shall meet within four weeks, undertake site visits, look into the grievances of the applicant, verify the factual position and take requisite remedial action by following due process of law. State PCB will be the Nodal agency for coordination and compliance.
Factual and action taken report may be furnished within two month by e-mail at [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF."
4. In compliance of the order following officers of the department were nominated to visit the site and submit the report.
S.N., Name of the Nominated Representing
Officer & designation
1. Pradeep Vasudeva. APCCF, PCCF (HOPF),
Working Plan, Forest Forest
Department Jabalpur.
Department, MP
2 Dr. I-EVC Chary, Guntapalli, Regional Office,
Scientist E, Integrated MoEF8sCC, Bhopal
Regional Office, MoEF&CC _
Bhopal.
3 B.P. Tiwari, Deputy Director, Field Director,
Pench Tiger Reserve, Seoni
Pench Tiger
Reserve, Stool
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4. O.P. Sanodiya, ADM, Collector
Chh indwara.
Chhindwara
5. H.K. Ghorrnare, SDI& Rural, Collector Seoni.
Seoni
6. H.X.Sharma, Zonal Officer, MPPCB, Bhopal
MPPCS, Jabalpur
5. Members of the Committee in compliance of the order visited the site and submitted the report, which is as follows :
―1. The inspection of the disputed site was carried out by the committee so formed on 12-09-2022. The petitioner, Capt. Brajesh Bharadwaj was also invited at the site to elaborate his grievance before the committee. On behalf of the disputed site's land owner Shri Rakesh Singh who was not present, his representative, one Shri Surendra Dube.Yt supervisor was also present.
The Disputed Site Location Detaihn 2.1 The disputed site in question, where illegal construction in the ESZ of Pench Tiger Resent has been alleged by the applicant Capt. Bharaclwaj, belong to one Rakesh sic Molhai as per revenue records. The site location is approximately 2104411.5.5004"N and 79021'16_524"E, a mobile app screen shot of the same is attached. The site to-
ordinates that have been mentioned by the applicant are 21044n042*N and 79021'24.4"E, and accordingly the Google Mapa showing the location of the land in May 2022 as well as November 2018 are also placed as Annealing S. Both the locations represent the same site. The Google Maps, to some extent also elaborate the plot boundaries.
52.2. The land owner, Rakesh s/o Mothai is said to be a Gond tribal person. He was not present during the inspection, rather his. representative Shri Surendra Dubey was present. As per revenue records available online, Rakcsh Molhai owns as raany as 7 pieces of land in this village i_e. village Avargani Raiyyat, Patwari [Talks. 'Pada, Telma Kurai District Stool. A MP Bhulekh site screen shot which is maintained by GoIv1P is placed and attached as Annezure 6. Thus the land owner owns kh. No. 29/1 area 2.620 hectares, Kb.rin. 29/3. area 0.030 hectares,. kh.no,31, area 7.190 hectares, Kh.no. 54, area 0.080 hectares, kh.no. 59/4, area 0.il0 hectares, kh.no. 59/6, area 0.38 hectares and kh.no. 59.7 area 0.410 hectares thus totaling 11.51 hectares. !till the land pieces are not together in one chunk and as per the maps (Mailable from the MPBHULEICE site only two khasras, no. 31 and no. 29/1. are adjoining, a copy of the map is placed as Annexure 7. As per the applicant Capt. Brajesh Dharadwaj, the disputed construction is taking place in kh.no. 31, area 7.190 hectares.
3 .0 Site Inspection Information:
3.1 Site of disputed construction i.e_ Kh..no.31 admeasures 7.190 hectares. It lies in the buffer zone of the Pench Tiger Reserve, Sewn, There had been a natural Talab (pond) in the land, which was known as Nautili Talab. The petitioner has alleged that the owner has dug the Tahiti, drawn silt and stones out of it and made heaps as high as 12' along the boundary of plot. It was observed by the inspecting team that earth fie stones have been taken out of the pond and stone pitching has also been done in long portions of its banks and probably the remaining portion of the banks will also be 6 strengthened of stone pitched sooner or later. The earth extracted dug from the pond has been laid in heaps, not hap-
hazardly but systematically, creating proper landscape. The earthen mounds have been made well inside the premises, and not along the boundaries as alleged by the applicant. The complainant Capt. Elbaradwaj told the committee, that such developments in the ESZ as well as buffer areas cannot be undertaken; the pitching of the Talab banks with cobbles and boulders will desist the wild animals from access to drinking water, while high earthen mounds will repel the dispersion. of the wild animals and the runoff from these mounds / rain cuts will cause siltation of the natural -nallas and drains flowing outside the disputed land. Such activities, as per him are violative of the provisions of Pencla Tiger ESZ Notification dated 06-011-2019 (S,0_ .4009 (E)), as the village Avarghani falls in the ESZ and has been listed at serial no. 37 in Annes.•ure ill of the ESZ notification 3.2 A natural Nalla flows near the N-NW-WN boundary of the said plot that is marked in the Google Map (Annex ore 5). The nearest distance of the NW plot boundary as measured from the Nalla is only 15 meters and the distance from the waste water weir of the Talab, which happens to be an old construction, is 114 meters, and that of the Talab boundary itself is 145 meters. Distance measurements with GPS were taken by the forest department officials and the records of which is placed. As per the complainant, the nalla forms the boundary of the Core Zone and the Buffer Zone of the Pench Tiger Reserve and as such no activities of this nature can be conducted so near to the Core Area.
73.3 The perimeter of the plot has been fenced with chain linked fence with height ranging from 6 feet to 8 feet depending on the topography and contours of the land. According to the complainant, no fence beyond 4 feet high can be constructed in the ESZ area, nor chain-link fence or any other kind of fence can be erected as per rules, Only a bio fence, that too not exceeding 4 feet height can be erected if someone in ESZ intends to protect his land and agriculture. He objected that such chain linked fences as well as earthen mounds are an obstruction to the movement and dispersion of the wild animals from one place to another place and animals as big cats will also find it difficult to cross the chain-link fencing. Smaller animals who have been using the water of the Nandu Talab, will find it impossible to cross the fence to reach the Talab. The stone pitching as well as the steepening of the slopes of the Talab by artificial means will hamper the smaller animals like deer, boars etc to reach the water due to their hoofs being unable to hold ground on the stone pitching of the Talab, Thus, as per the complainant, the fencing done around the premises is clearly violative of the ESZ Notification as well as provisions of the Wildlife (Protection) Act, 1972.
3.4 The site owner's representative Shri Surendra Dubey on the other hand submitted that the land belonging to Rakesh Molhai, is a private agricultural land and it has not been diverted for any other purpose than agriculture. He further submitted that the deepening of the Talab has been done after taking due permission from the Grain Panchayat, Turia, As per him, the land owner living in the ESZ area has a right to protect his produce / agriculture as well as his life from the wild animals and fencing has been simply done to ensure it. Similarly the deepening of the 8 Talab has been undertaken to ensure water availability throughout the year to support the agriculture. Pissiculture is also being planned to be undertaken here in future. He said that the earth taken out from the deepening cannot be thrown outside, and has been kept inside, its slopes have been protected with grass to prevent the sail flow and it is intended in future to grow medicinal and exotic oil-bearing grasses/plants on it. 3.5 The copy of the NOC dated 02-06-2021 from Gram Panchayat, which is placed as Annexure 11. hes been issued to Rakesh Singh s/o of Mothal, for all his land holdings in Kit Pio. 29/1, 31. 54,59{4, 59/6, 59/7 (barring one i.e 29/3), for an area of 11.48 hectares. The construction permission was granted for constructing building (farm house), boundary (wire fencing) and pond construction in an area of 848.48 sqm. The address of the land owner has been mentioned in this NOC as village Barrnani) district Katni• 3,6 The inspecting Committee has also observed that there are brick walled structures / rooms etc made, having sloping tin roofs and false ceiling also from inside. As many as two such structures have been made at the site. A garden has also been developed in front of one of the building structures in around 5000 sq ft area, which lies between the earthen slopes/mounds and the Talab, 3.7 The complainant in this matter has also objected that there is a Monitoring Committee constituted as provided in. the ESZ Notification under the Chairmanship of Revenue Commissioner Jabalpur, that committee has not been consulted prior to undertaking such construction works in the ESZ. He also pointed 9 out that there is also one Local Advisory Committee (LAC), but no NOC / permission has been obtained from these committees- 4.0 Provisions of the ESZ Notification de Wildlife Pxotection Act; Notification. 06-11-2019 4.1 The Indira Priyadarshini Pench National Park, is located in Seoni and Chhidwara districts of MR while the Pench Mowgali Sanctuary is confined to Kurai tehsil of District Seoni, both having an area of 411.33 sq km, which together form the corn area of 'Fetich Tiger Reserve'-
4.2 Vide notification no. S.O. 4O09(E) dated 06-11-2019, the formation of the ESZ of Pench Tiger Reserve was done and its boundaries have been notified with an extent varying from zero to 27 km around the boundary of Pench Tiger Reserve (Indira Priyadarshini Pench National Park, Elf. the Pench Mowgali Sanctuary), covering an arta of 771.537 sq Ion as ESZ, it has also been provided that the minimum buffer, wherever it less than 2 km from the core boundary, the ESZ will be considered up to 2 km from the core boundary.
4.3 it is submitted that as per information made available by MP Tourism Board, the Zonal Maater Plan of Pench Tiger Reserve is at Draft Stage and after the release of Hon,'le Supreme Court order an 03/06/2022 and comments of PCCF (Wildlife) on the same, the Draft Zonal Master Plan of Pench Tiger Reserve is being revised, 4.5 The ESZ Notification, paragraph 4 further provides for the "List of activities prohibited or to be regulated within the Eco Sensitive Zone".
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4.6 The ESZ Notification vide its paragraph 5, also provides for the formation of a monitoring committee for the effective monitoring of the provisions of the ESZ notification. The monitoring committee so constituted is headed by the Divisional Commissioner of Jabalpur and other members-.
6. Ministry of Environment and Forest &Climate Change, New Delhi issued as notification dated 16.11.2019 vide S.O. No. 4009 (E) as follows :
―NOW, THEREFORE, in exercise of the powers conferred by sub- section(1) and clauses (v) and (xiv) of sub-section (2) and sub- section (3) of section 3 of the Environment (Protection) Act 1986 (29 of 1986) read with sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby notifies an area with an extent varies from zero to 27 kilometres around the boundary of Pench Tiger Reserve (Indira Priyadarsini Pench National Park and Mowgali Pench Sanctuary)in the State of Madhya Pradesh as the Pench Tiger Reserve (Indira Priyadarsini Pench National Park and Mowgali Pench Sanctuary)Eco-sensitive Zone (herein after in this notification referred to as the Eco- sensitive Zone) details of which are as under, namely:-
Extent and boundaries of Eco-sensitive Zone.--(1) The total area of the eco-sensitive zone of Pench Tiger Reserve (Indira Priyadarsini Pench National Park and Mowgali Pench Sanctuary) is 771.537 square kilo meters covering entire notified buffer area of Pench Tiger Reserve, Indira Priyadarshini Pench National Park and Pench Mowgli Sanctuary, and whenever buffer does not exist around core and extent of buffer is less than 2 kilometre from the boundary of core in such locations the Eco-sensitive Zone will be up to 2 kilometre from the core boundary irrespective of ownership, falls in Seoni and Chhindwara Districts in the Madhya Pradesh. The extent of Eco-Sensitive Zone varies from zero (due to Inter-State boundary and also the Pench Tiger Reserve, Madhya Pradesh contiguous to Pench Tiger Reserve, Maharashtra on southern side) to 27 kilometers.
7. The provisions of Zonal Master Plan measures which are required to be taken by the State Government for land use and activities, prohibited or regulated within the Eco Sensitive Zone (ESZ) have been mentioned in notification, which is quoted below :
1. The Zonal Master Plan shall provide for restoration of denuded areas, conservation of existing water bodies, management of catchment areas, watershed management, groundwater management, soil and moisture conservation, needs of local 11 community and such other aspects of the ecology and environment that need attention.
2. The Zonal Master Plan shall demarcate all the existing worshipping places, villages and urban settlements, types and kinds of forests, agricultural areas, fertile lands, green area, such as, parks and like places, horticultural areas, orchards, lakes and other water bodies and also with supporting maps giving details of existing and proposed land use features.
3. The Zonal Master Plan shall regulate development in Eco-
sensitive Zone and adhere to prohibited, regulated activities listed in the Table in paragraph 4 and also ensure and promote eco-friendly development for Security of local communities livelihood.
Measures to be taken by the State Government.-The State Government shall take the following measures for giving effect to the provisions of this notification, namely:-
(1) Land use. - (a) Forests, horticulture areas, agricultural areas, parks and open spaces earmarked for recreational purposes in the Eco-sensitive Zone shall not be used or converted into areas for commercial or residential or industrial activities:
Provided that the conversion of agricultural and other lands, for the purposes other than that specified at part (a), within the Eco- sensitive Zone may be permitted on the recommendation of the Monitoring Committee, and with the prior approval of the competent authority under Regional Town Planning Act and other rules and regulations of Central Government or State Government as applicable and vide provisions of this Notification, to meet the residential needs of the local residents and for activities such as:-
(i) widening and strengthening of existing roads and construction of new roads;
(iii) construction and renovation of infrastructure and civic amenities;
(iv) small scale industries not causing pollution;
(v) cottage industries including village industries; convenience stores and local amenities supporting eco-tourism including home stay; and
(vi) promoted activities given under paragraph 4:
2 Natural water bodies.-The catchment areas of all natural springs shall be identified and plans for their conservation and rejuvenation shall be incorporated in the Zonal Master Plan and the guidelines shall be drawn up by the State Government in such a manner as to prohibit development activities at or near these areas which are detrimental to such areas.
List of activities prohibited or to be regulated within the Eco-sensitive Zone.-
All activities in the Eco-sensitive Zone shall be governed by the provisions of the Environment Act and the rules made there under including the Coastal Regulation Zone, 2011 and the Environmental Impact Assessment Notification, 2006 and other applicable laws including the Forest (Conservation) Act, 1980 (69 of 1980), the Indian Forest Act, 1927 (16 of 12 1927), the Wildlife (Protection) Act 1972 (53 of 1972), and amendments made thereto and be regulated in the manner specified in the Table below, namely:-
S. No. Activity Description
(1) (2) (3)
A. Prohibited Activities
1 Commer mining, stone (a) All new and existing mining (minor and
. cial
quarrying and quarryingmajor
andminerals),
crushingstone
units shall be
crushing units. prohibited with immediate effect except for
meeting the domestic needs of bona fide
local residents including digging of earth for construction or repair of houses and for manufacture of country tiles or bricks for housing and for personal consumption;
(b) The mining operations shall be carried out in accordance with the order of the Hon'ble Supreme Court dated the 4th August, 2006 in the matter of T.N. Godavarman Thirumulpad Vs. UOI in W.P.(C) No.202 of 1995 and dated the 21st April, 2014 in the matter of Goa Foundation Vs. UOI in W.P.(C) No.435 of 2012.
2. Setting of industries New industries and expansion of existing causing pollution polluting industries in the Eco-sensitive Zone (Water, Air, Soil, Noise, shall not be permitted:
etc.).
Provided that, non-polluting industries shall be allowed within Eco-Sensitive Zone as per classification of Industries in the Guidelines issued by the Central Pollution Control Board in February, 2016, unless so specified in this notification and in addition the, non-
polluting cottage industries shall be
promoted.
3. Establishmentof major Prohibited (except as otherwise provided) as per the applicable laws.
hydroelectric project.
4. Use or production or Prohibited (except as otherwise provided) as processing of any per the applicable laws.
hazardous substance.
5. Discharge of Prohibited (except as otherwise provided) as untreated effluents in per the applicable laws. natural water bodies or land area.
6. Setting up of new saw New or expansion of existing saw mills shall mills. not be permitted within the Eco-sensitive Zone.
7. Setting up of brick Prohibited (except as otherwise provided) as kilns. per the applicable laws.
8.
Commercial use of Prohibited (except as otherwise provided) as
firewood per the applicable laws.
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9. Use of plastic bags Prohibited (except as otherwise provided) as
per the applicable laws.
B. Regulated Activities
10 Commercial No new commercial hotels and resorts shall
establishment be permitted within one kilometer of the
boundary of the Protected Area or upto the
Of hotels and resorts. extent of Eco-sensitive zone, whichever is
nearer, except for small temporary structures for Eco-tourism activities:
Provided that, beyond one kilometer from the boundary of the protected Area or upto the extent of Eco-sensitive Zone whichever is nearer, all new tourist activities or expansion of existing activities shall be in conformity 11 with Construction activities. (a) New the Tourism commercial Master of construction Plan and any kind guidelines as applicable.
shall not be permitted within one kilometer from the boundary of the protected area or upto extent of the Eco-
Sensitive Zone, whichever is nearer:
Provided that, local peopleshall be permitted to undertak construction in their land for their use including the activities listed in sub-
paragraph (1) of paragraph 3 as per building bye-laws to meet the residential needs of the local residents.
Provided further that the construction activity related to small scale industries not causing pollution shall be regulated and kept at the minimum, with the prior permission from the competent authority as per applicable rules and regulations, if any.
(b) Beyond one kilometer it shall be regulated as per the Zonal Master Plan.
12. Small scale non Non polluting industries as per classification polluting of industries issued by the Central Pollution Control Board in February, 2016 and non-hazardous, small-scale and service industry, agriculture, floriculture, horticulture or agro-based industry producing products from indigenous materials from the Eco-sensitive Zone shall be permitted by the competent Authority.
industries.
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13. Felling of trees. (a) There shall be no felling of trees in the forest or Government or revenue or private lands without prior permission of the competent authority in the State Government.
(b) The felling of trees shall be regulated in accordance with the provisions of the concerned Central or State Act and the rules made there under.
14. Collection of Forest Regulated under applicable laws.
Produce or Non-Timber Forest Produce.
15. Erection of electrical Regulated under applicable laws of and communication underground cabling may be promoted. towers and laying of cables and other infrastructures..
16. Infrastructure Taking measures of mitigation, as per including civic applicable laws, rules and regulation and amenities. available guidelines.
17. Widening and Taking measures of mitigation, as per strengthening of applicable laws, rules and regulation and existing roads and available guidelines construction of new roads.
18. Undertaking other Regulated as per the applicable laws.
activities related to
tourism like over flying
over the Eco-sensitive
Zonearea by hot air
balloon, helicopter,
drones, Microlites, etc.
related to tourism like
over flying over the
Eco-sensitive Zone area
by hot air balloon,
helicopter, drones,
Microlites, etc.
19. Protection of Hill Regulated as per the applicable laws.
Slopes and river
banks.
20. Movement of vehicular Regulated for commercial purpose under traffic at night.
amenities. applicable laws.
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21. Ongoing agriculture Permitted as per the applicable laws for use
and horticulture of locals.
practices by local
communities along
with dairies, dairy
farming, aquaculture
and fisheries.
horticulture practices
by local
communities along
with dairies, dairy
farming, aquaculture
and fisheries.
22. Discharge of treated The discharge of treated waste water or waste water/effluents effluents shall be avoided to enter into the in natural water water bodies and efforts shall be made for bodies or land area. recycle and reuse of treated waste water.
water/effluents in
natural water Otherwise the discharge of treated waste
bodies or land area. water/effluent shall be regulated as per
the applicable laws.
23. Commercial extraction Regulated under applicable laws.
of surface and ground water.
24. Establishment of large- Regulated (except as otherwise provided) as scale commercial per applicable laws except for meeting livestock and poultry local needs.
Farms by firms, corporate and companies.
25. Open Well, Bore Well, Regulated under applicable laws and the etc. for agriculture or activity shall be strictly monitored by the other usage. concerned authority.
26. Solid Waste Regulated as per the applicable laws.
Management.
27. Introduction of Exotic Regulated as per the applicable laws.
species.
28. Eco-tourism. Regulated as per the applicable laws.
29. Commercial Sign Regulated as per the applicable laws.
boards and hoardings.
C. Promoted Activities
30. Rain water harvesting. Shall be actively promoted.
31. Organic farming. Shall be actively promoted.
corporate and companies.commercial livestock and poultry 16
32. Adoption of green Shall be actively promoted.
technology for all activities.
33. Cottage Shall be actively promoted.
industries including village
34. Use of renewable artisans, etc. Bio-gas, solar light etc. shall be actively energy and fuels. promoted.
35. Agro-Forestry. Shall be actively promoted.
36. Plantation of Shall be actively promoted.
Horticulture and Herbals.
37. Use of eco-friendly Shall be actively promoted.
transport.
38. Skill Development. Shall be actively promoted.
39. Restoration of Shall be actively promoted.
Degraded Land/ Forests/ Habitat.
40. Environmental Shall be actively promoted.
Awareness.
8. Monitoring Committee. -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 within three months hereby constitutes a Monitoring Committee, comprising of the following, namely: -
S. No. Constituent of the Monitoring Committee Designation
(i) Divisional Commissioner, Jabalpur --Chairperson;
(ii) Representative of State Pollution Control Board- --Member;
(iii)One representative of non-Governmental --Member;
Organisation (working in the field of environment including heritage conservation) to be nominated by the State Government
-
(iv) A representative nominated by the --Member;
Forest and Environment Department of Madhya Pradesh-
(v) An (expert in Biodiversity to be nominated --Member; by the State Government
(vi) An expert in Ecology and environment to be nominated by the State
(vii) Government -Member In charge Protected Area --- Member Secretary. 17
9. The MoEF&CC has further issued the guidelines and circulars to provide habitat supplement to the spill over population of wild animals from the core area, conserved with the active cooperation of stakeholder communities and providing site specific need, based participatory eco- development inputs to local stake holders for reducting their resource dependency on the core zone and for eliciting their support towards conservation initiatives in the area. Buffer zone of the Pench Tiger Reserve, Seoni, has been notified to ensure the integrity of the core area/ critical tiger habitat with adequate dispersal of tigers and other species and aims at promoting co-existence between wildlife and human activity with the recognition of livelihood development along with social and cultural rights of the local people. 449.392 sq. km of area was notified as "Pench Sanctuary" vide the Govt. of M.P.Forest Department Notification no. 15/11/77-10/3, Bhopal dated 30-09-1977. Govt. of M.P. has declared its intention to constitute an area of 292.857 sq. km which was carved out from the initially notified sanctuary as Pench National Park; vide the Govt. of M.P. Forest Department's Notification no. 5-15-82-10-(2) Bhopal dated 0103-1983. Out of the remaining portion of 156.535 sq. km, an area of 118.473 sq. km. was retained as Pench Sanctuary, while the remaining area of 38.062 sq. km. was excluded from the initially notified Sanctuary. The Pench Sanctuary was finally notified vide the Govt. of M.P. Forest Department's Notification no. F.15-65-96-X-2 Bhopal dated 21-8-1998. The National Park & Sanctuary were renamed as Indira Priyadarsini Pench National Park and Pench Mowgali Sanctuary respectively vide Govt of M.P. Forest Department's Notification no. F. 15-5-2002-10-2 Bhopal 18 dated 15-11-2002 The National Park was finally notified vide Govt of M.P. Forest Department's Notification no. F.15-11-05-X-2. Bhopal dated 16-12- 2005 as Indira Priyhadarshini Pench National Park.
10. The Govt. of India, Ministry of Environment and Forest, Project tiger, conveyed its approval for the establishment of project tiger (19th) vide his order no. 1-2/92-PT Part-II) dated 23 November 1992. (Part-II) dated 23 November 1992 (Annexure No. - 07) as per the from the received proposal State Govt. vide latter no. 14/21/10/2/ 92 dated 10-08- the project 1992. tigerarea The total wasof757.850 sq. km. out of which Pench National km.) Park was declared (292.857 sq. as core and rest of the area which includes Pench (118.473 Sanctuarysq.km.) and adjoining 346.520 sq. km. as buffer area. An area of 411.330 sq. km. of Indira Priyadarshini Pench National Park & Pench Mowgli Sanctuary was declared as Core Area of Pench Tiger Reserve, Seoni vide Govt. of M.P. Forest Department's Notification no. F.15-31-2007-X-2 dated 24-122007. Lastly the Buffer area has been notified by Govt. of M.P. Forest Dept. Notification No. F.15-8-2009-X-2 dated 05-10-2010.
11. The buffer zone of Pench Tiger Reserve boasts its importance in the natural history of central India, as it has great richness in terms of flora and fauna. It has been one of the most important habitats in the world for the conservation of highly endangered Species Panthera tigris, The Tiger. Besides the highly endangered Indian Tiger, the forest also harbours a wide range of faunal species some of which figure prominently in the IUCN Red List. It also harbours great biodiversity of 19 floral species, some of them extremely important in the context of conservation. The forest area provides suitable habitat for residential birds. It harbours high ungulate and biomass density. The Pench Tiger Reserve is centrally located in Central highlands of India. It is connected to Kanha Tiger Reserve by forest of Seoni, Balaghat and Mandla districts and satpura Tiger Reserve by forests of chindwara district. Given such great significance of the buffer area of Pench Tiger Reserve, it becomes important to manage the area in such a way that adequate dispersal habitat and other critical ecological functions are maintained along with the interests of people residing in buffer zone. To achieve these objectives, buffer zone of PTR has been notified. Any area, often peripheral to a protected area, inside or outside, in which activities are implemented or the area managed with the aim of enhancing the positive and reducing the negative impacts of conservation on neighbouring communities and neighbouring communities on conservation."
12. The impact zone (buffer) of the Tiger Reserve comprises of fringe revenue and forest villages, which exert biotic pressure on the peripheral protected areas resources. The dependency of these villages varies from collection of fuel wood and Minor Forest Produce, to livestock grazing, apart from the use of some water bodies. The impact zone has been delineated carefully after considering the various incidents of interface conflicts and assessment of dependencies of the surrounding indigenous communities on the protected area. The zone of influence extends in the area of 768.300 sq. kms.
20The Profile of Impact Zone:
There are 99 villages located within the Zone of influence (ZI) out of which 51 fall in Seoni District and the remaining 48 villages are situated in Chhindwara District. All these villages have also been selected for ―Eco-development Programme‖. The implantation of such programme has been executed through Eco-development committee (EDC) constituted for every village for effective supervision for the activities of such EDCs, the 99 villages have been put under the 5 Eco Units.
13. Vide order dated 17.10.2022 this Tribunal directed the PCCF and Director, State Forest Research Institute (SFRI) Jabalpur to submit the report regarding impacts of the constructions raised/ activities carried out by the Project Proponent and wildlife area. The Director, State Forest Research Institute (SFRI) Jabalpur, vide report dated 12.01.2023 visited the site with the State Forest Research Institute (Members) and submitted the report as follows :
1. Two rooms structure with soft roof top, a shade and green net house for keeping live plants.
2. A pond which is connected with the natural stream of adjacent forest. The pattern of that pond was assumed to be modified by land owner.
3. The team also observed few artificial soil mound structures inside the property.
4. Entire property is found fenced with chain-link wire with two or three openings.
5. The boundary of the property found adjacent to the buffer of Pench Tiger Reserve, Seoni, M.P.
14. The applicant in person has submitted that the Project Proponent claims that the construction done in the pond was part of the agriculture use in his private land but agriculture activities were being carried out on adjacent land which was incorrectly identified as agricultural activities on the site. However, the beautification of the pond cannot be termed as 21 agricultural activities nor it can be termed as residential activities as per ESZ notification of Pench Tiger Reserve Seoni.
15. Learned Counsel for the Project Proponent has submitted that as per regulated activities it is 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 bye-laws to meet the residential needs of the local residential. It is further argued that deepening of pond can be considered as agriculture activity with stone pitching around the water body. With regard to the fencing the committee has recommended that it should be only upto 4-5 ft. height by bio-fencing which would also act as a habitat for birds, animal and provide necessary protection and feed to the herbivorous animals.
16. It is further argued by the applicant in person that the earthen mounds created due to the dugout soil has settled only from the top layer due the rain. It is very unstable and can possibly cause mishaps for wild animals climbing over it during dispersal and to drink water. The loose mounds will eventually erode over time due to rains, clogging the nearby natural nallah. The construction of garland drain/trench overflow discharge in the adjacent natural stream (114 meters) and deep trench dug along the stream and jungle side, endangering wild animals' movements and obstructing their path towards the pond will eventually clog the natural nallah. This is against the ESZ notification (point 2) which promotes for the preservation of the natural water resources. 22
17. Violations of air, noise and vehicular pollution ESZ notification rules were justified by stating that the violations of pollution laws not applicable as activities involving man and machinery are common whenever construction of any sort is done. These activities are regulated activities at Point No. 11 under regulated activities in the ESZ Notification. No major environmental impact of permanent nature is envisaged due to the said construction. Temporary violations are not permitted under the ESZ notification. Those violations at site by heavy earth moving machinery continued for months and disturbed the wildlife (prohibited) which is roughly 200 meters from the core area of the tiger reserve. These provisions as mentioned in the ESZ Notification.
18. On the objection raised by the applicant this Tribunal directed the State Pollution Control Board that the Member of Forest Research Institute to submit the report and the Chief Chemist, State Pollution Control Board submitted the report, as follows :
―1. The inspection was carried out in the site of disputed construction. This disputed site falls in khasra no. 31 and admeasures 7.190 Hectares as per the report of the Joint Committee.
2. As mentioned in the report of Joint Committee, following constructions were undertaken at the site:
a. Water pound development by deepening, broadening and stone pitching of existing Talab.
b. Landscaping using the extracted earth of the Talab. c. Fencing of the plot with chain linked fence having height ranging from 6 to 8 feet.
d. Two (brick walled) rooms / structures with tin roofs & false ceiling. e. A garden in front of the rooms / structures.
3. Nothing objectionable has been pointed out by the Joint Committee in its report, except the high chain linked fencing, this according to 23 the property owner has been undertaken protection of agriculture produce from the animals.
4. As per the recommendations (Point 5.1 para 1) of the Joint Committee report, no additional construction or any commercial activity could be observed at site during the visit.
5. Ambient air quality monitoring was carried out at the site during the visit. The measured values are with the prescribed limits.
6. Water samples were collected from the Talab / Pond and the ground-water for quality testing. The observed values reveal that the surface water & ground-water quality is normal.
7. Noise level monitoring carried out at site also revealed that the noise level is normal and within the prescribed limits.
19. The Ambient Air Quality was monitored by State Pollution Control Board vide inspection analysis dated 11.01.2023 and characteristics as found are as per the parameters.
Water samples are as follows :
Sample from Distt. Seoni MP Surface water sample, Pench area, Awaeghani Rayyat Village, Khawaa, Near Turaiya gate Sample details ":
Lake water sample, sample collected in reference to NGT , OA. -452/2022
Date of Collection 10 01 2023 Analysis No.
58/123 Bill No. Dt.
Date of Receipt : 11.01.2023
sasample, Pench area, a
Date of Analysis : 11.01.2023
Analysis Done By : Dr. Shubhi Mathur Jr. Scientis Sample collected by :- Shri V.K. Kushwaha, L.A,
S.N. Re ults
Parameters Unit
A -- PHYSICAL PARAMETERS I
°
1. Temperature C 19.5
'1/4lial ..is Done it> :- Dr. Shohhi Mathur.
2. Turbidity N.T,U. 2.0 _ Jr. Scientist
3. Colour - Colourless
4. Odour . -
5. Specific Conductivity µmho/cm 299.6 24 B - CHEMICAL PARAMETERS
6. pH - 7.34 26.0 7 Total Alkalinity mg /I
8. Total Hardness ( as CaCO3) mg/1 130.0 9 Calcium Hardness ( as CaCO1 ) mg /I 76.0 I0 Magnesium Hardness (as CaCO3 ) mg /I 54,0 II Chloride mg /I 15.00 I2. Total Solids mg/1 263.0
13. Dissolved Solids mg/1 242.0
14. Suspended Solids mg/I 21.0
15. Ammonical Nitrogen ( as N ) mg /I 0.04
16. Nitrite Nitrogen (_ as NO21 mg/1 0.009
17. Nitrate Nitrogen ( NII3 ) mg /I 0.28 18 Total Kjeldahl Nitrogen ( as N ) mg/1 IV. Fluoride mg/I BDL
20. Dissolved Oxygen mg /I 6.9
21. B.O.D. ( 3 days, 27 uQ) mg/I 1.4
22. C.O.D. mg/1 10.0
23. Sulphate mg / I 7.0
24. Phosphate ( as P ) mg / I 0.15 25 Lead (Pb) mg/1 26 Chromium ( Cr 6 ) mg/ I 27 Copper I Cu 1 mg / I .
28 Zinc (7.n ) mg / I
Iron (Fe 1 mg / I •
29
30 Cadmium mi./ I .
25
Sample from Distt. Seoni MP Ground water sample, Pench area, Awaeghani Rayyat Village,
Khawaa, Near Turaiya gate
Sample Details
Bore well water sample collected in reference NGT OA 452/2022 Date of Collection :. 10.01.2023 Analysis No. 59/123 I Bill No..
Date Receipt : 11.01.2023
Date of. Analysis:- 11 01 2023
Analysis, Done by:- Dr. Shubhi Mathur. Sample collected by :- Shri V.K.Kushwaha L..A.
Jr. Scientist
sasample, Pench area, a
Sample from Distt. Seoni MP
Dat Receipt
SNO .- 11Parameters
01'2023 Unit Result
A...-- PHYSICAL PARAMETERS
°
1. 'Temperature C 21.0
1 0
N.T.U. .
2. Turbidity
_.
3.Colour Jr. Scientist - Colourless
4. Odour - -
5. Specific Conductivity µmho/cm 539.7
B - CHEMICAL PARAMETERS
6. elfpH - 7.71
7. Total Alkalinity mg /1 56.0
Date Receipt .- 11 01'2023
8. Total Hardness ( as CaCO3 ) mg /1 310.0
9. Calcium hardness -( as CaCO3 ) mill 176.0
10. Magnesium I laciness (as CaCO3 ) mg /111 134.0
11. Chloride mg/1 11.0
121 Total Solids mg/1 466.0
_
13.Dissolved Solids mg /1 457.0
14, Suspended Solids mg /I 09.00
15. Ammonical Nitrogen ( as N ) mg /1 0.09
16. Nitrite Nitrogen c as NO2 ) mg /1 0.11
17. Nitrate Nitrogen ( NH3 ) mg /1 3.6
18.Total Kieldahl Nitrogen ( as N _r/ 1
19. i Fluoride mg /1 0.08
20. Dissolved Oxygen mg / I -
21. B.O.D. ( 3 days, 27 °C ) mg / 1 0.8
22. C.O.D. mg/1 10.0
23. Sulphate mg /1 34.0
24. Phosphate ( as P ) n114)1 0.19
25.
Lead (Pb) _. -
26. Chromium mg / I -
mg / I -
27. Copper ( Cu )
28. Zinc ( Zn ) mg / I -
_
29. Iron ( Fe ) _ mg / I -
30. Cadmium mg / I -
C - BIOLOGICAL
8.3
MPN/100 ml
31. Total Coliform
32. Fiscal Coliform MPW100m1 -
26
20. The noise level was analyised by the level of State Pollution Control Board which was found to be 48.8 dB (A) which is as per prescribed parameters.
21. In reply filed by the State Respondent Nos. 1, 3 & 4 it has been submitted that the private land owner has submitted to SDM, Kurai that he is neither constructing any resort on the state land nor has got land diversion permission for commercial use. He is developing the land for agriculture and making some structure for storage of agriculture produce. Fencing has been erected to safe the crop from wild animals.
22. The contention of the applicant in person Captain Brajesh Bharadwaj R/o Chhindwara M.P._is that alleged construction activities are going on within the ESZ of Pench Tiger Reserve Zone, and the private land owner is constructing a artificial pond and mud excavated from it is being used to create a hilly slope 12ft. height around the border and the version of the applicant is that construction activities violates various provisions of Gazette Notification of ESZ of Pench Tiger Reserve, Seoni dated 06.11.2019. It is further alleged that the construction activities also creates Noise Pollution, Air Pollution, Vehicular Pollution and violates of Section 38 of Wildlife Protection Act, 1972.
23. The submission of the Learned Counsel for the respondent are that :
"The construction work has been undertaken in the premises within 01 km of the core area, inside the notified ESZ area, which seems to be a permitted activity for self use of the landholder.
Permission from Gram Panchayat was obtained for it. As per the provisions of ESZ Notification, 2019 the locals can undertake construction for their residence or agricultural needs. The site 27 was inspected by the officials of the revenue department and nothing objectionable has been found. However, no commercial activities in future should be undertaken at the site without prior approval/ permission from the competent authorities. And that as per the decision taken by LAC of Pench Tiger Reserve only a stone fence or mud fence or shrub fencing not exceeding four feet height is permitted. But the chain link fencing has been undertaken by the land owner on the grounds of protecting its agriculture produce from wild animals.
The sheds have been made within 100m of the Nandu Talab, which is not a new Talab and is situated in the private land of the owner itself. However it does not appear that this decision of LAC regarding 100m distance between building & talab will apply to private ponds, otherwise land holders having small and holding may not be able to undertake any construction if a pond exists in their land and a distance of 100m between pond and building is not available and the matter of the construction of talab was discussed in the meeting dated 22.07.2021 of the LAC where it was informed that the work has been stopped by revenue officials. Hence further Nandu Talab that should not be a hindrance for the wild animals to obtain water from it.
24. It is further submitted that The earthen mounds that have been created from the soil dug from the Talab, have now settled in shape and have been seeded with grass etc. to protect erosion and silt flow during rains. The present shape of the slopes does not seem to be steep enough to create restriction on the dispersal and movement of wild animals. As the mud mounds are now covered with grass, run-off from the mud mounds causing siltation and clogging of the natural nallas flowing close to the land boundary is very limited. The construction that has been undertaken does not fall in the corridor connecting Pench Tiger Reserve with any other National Park or 28 Sanctuary and that, as per the order of Hon'ble Supreme Court dated 03.06.2022 para 44(e), any regulated activity could be undertaken only with prior permission of the PCCF & Hoff. The state has filed an application for modification of the above mentioned order and to restore the authority of monitoring committee for regulating the works within ESZ. The land owner could be advised to apply for the same before monitoring committee of ESZ as soon as possible and get approval of Monitoring Committee of the ESZ, before restarting any construction. The committee also submitted that the earthen mounds have been seeded with grass and at present shape of slopes do not creates restriction on the dispersal of wild animals and movements. It is also clear from the reports that the construction work does not fall in the corridor connecting Pench TR with any other National Park or Sanctuary. That, with respect to the ESZ notification dated 06.11.2019, paragraph-4 enlists the construction activities at Sr. No. 11 of the Part-B as "Regulated Activities" provided that local people shall be permitted to undertake construction in their land for their use including the activities listed in subparagraph (1) of the paragraph-3 as per building bye-laws to meet the residential needs to the local residents. Thus as per ESZ Notification of Pench Tiger Reserve dated 06.11.02019, fencing by a land owner is not a prohibited activity. Though, as per the proceedings of the LAC meeting dated 21.07.2021, the construction works in the said land has been stopped by collector, final decision may be taken by the Monitoring committee of ESZ as per existing Provisions. At present, no construction work is being carried out over the land in question within the ESZ. So far, the Joint Committee has not found any violation of any provisions of Wildlife (Protection) Act, 1972 and Rules made therein. It is further submitted that as wildlife Conservation is only possible with the support of local community the residents of the ESZ and buffer areas should not be devoid of their bonafide rights. ESZ and buffer areas around Protected 29 Areas i.e. National Parks & Sanctuaries of the State are multiple use areas and regulations should not make the life of the residents difficult.
25. Vide order dted 17.10.2022 again the Director, Forest Research Institute, Pench Tiger Reserve was requested to submit the report with regard to the observations of the committee and it has been submitted that these works are under the category of regulated works under the ESZ notification. Hence, all these constructions works including chain link fencing should be undertaken with the prior approval of the monitoring committee of ESZ.
26. We appreciate the applicant petitioner Captain Brajesh Bharadwaj for his presentation of fact and law on the environmental issues in a very systematic manner with judgments of Hon'ble Supreme Court passed on the issue of Eco Sensitive Zone and highlighted the violations and protection of ESZ in a better manner. He has submitted that the Pench Tiger Reserve Seoni has its importance in the natural history of central India, the area of Pench Tiger Reserve Seoni is also popularly known as Mowgli land. This area is famous as it has been mentioned as Mowgli land in Rudyard Kipling's ―The Jungle Book‖. It is necessary to conserve and protect the area around the protected area of Pench Tiger Reserve (Indira Priyadarsini Pench National Park and Mowgli Pench Sanctuary) as eco-sensitive zone from ecological and environmental point of view. Tigers are a keystone species, crucial for the integrity of the ecosystems in which they live. As top predators, they keep populations of prey species in check, which in turn maintains the balance between herbivores and the vegetation upon which they feed. In short, when tigers thrive, the whole ecosystem thrives. After a territorial fight or the dispersing transient tigers may establish territory in buffer and fringe areas near a water source. The 30 buffer zone takes care of the spill over population of tiger and other species by providing area for dispersal and suitable habitat to Tiger and other species from adjoining core area of Pench Tiger Reserve. The area is very important for gene flow of various species; especially Tiger. The buffer zone is very important for genetic diversity and gene flow in the landscape. This is vital for keeping tiger population sustainable in the landscape. The buffer zone takes care of the spill over population of tiger and other species by providing area for dispersal and suitable habitat to Tiger and other species from adjoining core area of Pench Tiger Reserve. The buffer zone comes in the Pench- Kanha corridor.
27. He has fairly submitted the remedial measures with the contention that fencing should not exceed 4 ft. around the pond for ease of passage of wild animals to drink water and for un-hinder tiger dispersal and further submitted that the stone pitching along the ponds should be made a systematic slope with grass and soil along the bank of the pond. The petitioner in person relied on the judgment of the Supreme Court passed in T.N. Godavarman Thirumulupad vs. Union of India & Ors. W.P. (Civil) No. 202 of 1995 in I.A. No. 1000 of 2003 dated 03.06.2022.
28. In response to the above contention the Learned Counsel for the respondent and for the MoEF&CC has submitted that the above judgment and order of the Supreme Court was again subject matter of the Writ Petition and vide order dated 26.04.2023 (2023 LIVE LAW (SC) page 351 W.P. (Civil) No. 202 of 1995 in Re:T.N. Godavarman Thirumulupad vs. Union of India & Ors. has been modified it, considering the problems being faced by the local public residing within the ESZ zone.
31
29. It is submitted that the Government of India has already issued Guidelines on 9th February 2011 for declaration of ESZs around National Parks and Wildlife Sanctuaries. The said Guidelines were framed after consulting the National Board for Wildlife and all the State and Union Territory Governments. The said Guidelines provide a detailed procedure for submitting a proposal for declaration of the areas around National Parks and Wildlife Sanctuaries as ESZs. It is further submitted that the said Guidelines itself contain various activities which have been categorized as prohibited, regulated and permitted.
30. It is further submitted that the direction as contained in paragraph 56.5 of the order dated 3rd June 2022 (supra) is likely to cause great hardship to the citizens residing in the ESZs. It is further submitted that the said directions provide that if any activity is already being undertaken within one kilometre or extended buffer zone (ESZ), and which does not come within the ambit of prohibited activities as per the said Guidelines, such activities may continue with the permission of the Principal Chief Conservator of Forests (for short, ―PCCF‖) 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. The said Guidelines further provide that such permission shall be given once the PCCF is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this Court's order dated 3rd June 2022 (supra) in a legitimate manner. It is further submitted that the direction that no new permanent structure shall be permitted to come up for whatsoever purpose within the ESZs would also cause great hardship.
31. It is submitted that the rights of the citizens who are residing in the Protected Areas are settled under the provisions of Sections 18 to 25A of the Wild Life (Protection) Act, 1972 whereas there is no settlement 32 of rights of citizens residing in ESZs. The citizens therein continue to reside and are also continuing with their daily avocation like farming etc. It is submitted that various developmental activities like construction of schools, dispensaries, anganwadis, public health centres etc. are required to be undertaken in such areas. Not only that, but if the direction not to make any construction is continued, the persons residing therein would not be in a position to construct or reconstruct houses on their own land. It is submitted that the procedure prescribed for obtaining the permission of the PCCF is very tedious. If such a direction is issued, the PCCF would be left with no other work but to consider the applications for continuation of such activities.
32. The Hon'ble Supreme Court of India in Goa Foundation Case (2014) 6 SCC page 590 had directed that the MoEF & CC shall follow the procedure and issue notification of ESZs under Rule 5 of the Environment (Protection) Rules, 1986. The relevant provisions of the 1986 Rules are reproduced as under:
―5. Prohibition and restriction on the location of industries and the carrying on of processes and operations in different areas.--(1) The Central Government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas:
(i) Standards for quality of environment in its various aspects laid down for an area.
(ii) The maximum allowable limits of concentration of various environmental pollutants (including noise) for an area.
(iii) The likely emission or discharge of environmental
pollutants from an industry, process or operation
proposed to be prohibited or restricted.
(iv) The topographic and climatic features of an area.33
(v) The biological diversity of the area which, in the opinion of the Central Government needs to be preserved.
(vi) Environmentally compatible land use.
(vii)Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted.
(viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified as such under the Wild Life (Protection) Act, 1972 or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international conference, association or other body.
(ix) Proximity to human settlements.
(x) Any other factor as may be considered by the Central Government to be relevant to the protection of the environment in an area.
(2) While prohibiting or restricting the location of industries and carrying on of processes and operations in an area, the Central Government shall follow the procedure hereinafter laid down.
(3) (a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the location of an industry or the carrying on of processes and operations in an area, it may, by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time, give notice of its intention to do so.
(b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the location of the industries and carrying on of processes or operations in that area.
(c) Any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication in the notification in the Official Gazette.34
The Central Government shall within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette consider all the objections received against such notification and may [within [seven hundred and twenty-five days [, and in respect of the States of Assam, Meghalaya, Arunachal Pradesh, Mizoram,Manipur Nagaland, Tripura, Sikkim and Jammu and Kashmir in exceptional circumstance and for sufficient reasons within a further period of one hundred and eighty days,]] from such date of publication] impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area:
[Provided that on account of COVID-19 pandemic, for the purpose of this clause, the period of validity of the notification expiring in the financial year 2020-2021 and 2021-2022 shall be extended up to [30th June, 2022] or six months from the end of the month when the relevant notification would have expired without any extension, whichever is later.] (4) Notwithstanding anything contained in sub-rule (3), whenever it appears to the Central Government that it is in public interest to do so, it may dispense with the requirement of notice under clause
(a) of sub-rule (3).]‖
32. It is to be noted that Rule 5 of the 1986 Rules prescribes a detailed procedure for issuing notification prohibiting or restricting various activities in the specified areas. The said power flows from Sections 3(v) of the Environment (Protection) Act, 1986 (hereinafter referred to as ―1986 Act‖).
33. Hon'ble Supreme Court of India vide order dated 26.04.2023 in T.N. Godavaraman's case has observed as follows :
"30. It is to be noted that Rule 5 of the 1986 Rules prescribes a detailed procedure for issuing notification prohibiting or restricting various activities in the specified areas. The said power flows from Sections 3(v) of the Environment (Protection) Act, 1986 (hereinafter referred to as "1986 Act‖).
31. A perusal of clause (viii) of sub-rule (1) of Rule 5 of the 1986 Rules would reveal that one of the factors that has to be taken into consideration for declaring ESZ is the proximity to a sanctuary, National Park, game reserve or closed area notified, as such under the 1972 Act. Sub-rule 3(a) of Rule 5 of the 1986 35 Rules requires that whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions, it is required to give notice of its intention to do so by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time. As per sub-rule 3(b) of Rule 5, every such notification is required to give a brief description of the area, the industries, operations processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the location of the industries on carrying out of the processes or operations in that area. Accordingly, as per sub-rule 3(c) of Rule 5, any person interested in filing an objection is entitled to file an objection to the Central Government within sixty days from the date of publication in the notification in the Official Gazette. The Central Government thereafter within the prescribed period provided under clause (d) of sub-rule (3) of Rule 5 of the 1986 Rules is required to issue a notification in the Official Gazette imposing such prohibition or restrictions in an area. This is required to be done only after considering all the objections received under clause (c) of sub-rule (3) of Rule 5 of the 1986 Rules. It can thus be seen that a detailed procedure is prescribed under the 1986 Rules for notifying ESZs.
32. It is to be noted that MoEF & CC has issued the said Guidelines for declaration of ESZs around the National Parks and Wildlife Sanctuaries.
33. The said Guidelines refer to a meeting of the Indian Board for Wildlife held on 21st January 2002, in which "Wildlife Conservation Strategy-2002" was adopted. Point No. 9 of the said Strategy envisaged that lands falling within 10 kilometres of the boundaries of National Parks and Sanctuaries should be notified as eco-fragile zones under Section 3(v) of the 1972 Act and clause
(viii) of sub-rule (1) of Rule 5 of the 1986 Rules. It further states that when the views were obtained from all the State Governments, some of the State Governments had raised concern over applicability of 10 kilometres range from the Protected Area boundary and informed that most of the human habitation and other areas including important cities in these States would come under the purview of ESZs and will adversely affect the development. The said Guidelines also refer to the National Wildlife Action Plan (2002-2016). The NBWL, in its meeting held on 17th March 2005, decided that the delineation of ESZs would have to be site specific and relate to regulation rather than prohibition of specific activities. The said decision was communicated to all the State Governments for compliance vide letter dated 27th May 2005.36
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:
(i) 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 structur 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 37 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.
52. As already discussed hereinabove, the necessity to have ESZs is to provide a buffer zone around the Protected Areas. The rights of the villagers residing in the Protected Areas are required to be settled in accordance with the provisions contained in the 1972 Act and such villagers are rehabilitated outside the Protected Areas. However, no such settlement of rights is available to the villagers residing in the ESZs areas. As stated in the said Guidelines, the purpose of declaring ESZs is not to hamper the day to day activities of the citizens. If the direction as issued is continued, it would certainly hamper the day to day activities of the citizens residing in ESZs. As such, we find that the said direction needs to be modified.
53. It is further to be noted that the NBWL, in its meeting dated 17th March 2005, has also recommended that the delineation of ESZs should project as regulation rather than prohibition of activities.
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 38 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 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.
56. It is further to be noted that, as required under sub-rule (3) of Rule 5 of the 1986 Rules, before any final notification is issued, a draft notification is required to be published in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time. Any person interested in filing any objection to such a draft notification is entitled to file objection within a period of 60 days from the date of publication of the draft notification in the Official Gazette. We find that the Central Government can be directed to give a wide publicity to the draft notification so that all persons interested have knowledge about issuance of such draft notification.
57.It is pertinent to note that after following the aforesaid procedure, the matter is placed before the Expert Committee consisting of 13 organizations having expertise in the relative field. As such, before an ESZ area is specified, various factors are taken into consideration. There are various factors which will determine the ESZs for a particular Protected Area. The circumstances may differ from one Protected Area to another Protected Area. As such, we find that the direction which prescribes a uniform one kilometre ESZ requires to be modified.
58. It is further to be noted that on the date of filing of the present application, final notifications have been issued in respect of 474 Protected Areas whereas draft notifications have been issued in respect of 102 Protected Areas. 73 proposals are pending. As already discussed hereinabove, this Court has already found the said Guidelines to be reasonable and has accepted the same. The Court has also accepted the view of the Standing Committee of the NBWL that uniform guidelines may not be possible in respect of each Sanctuary or National Park for maintaining ESZs. Though the Court has observed that a minimum width of one kilometre in ESZ ought to be maintained, in paragraph 56.6 of the order dated 3rd June 2022 (supra) itself, it has observed that minimum width of the ESZ may be diluted in overwhelming public interest but for that purpose the State or Union Territory concerned is required to approach Central Empowered Committee (CEC) and MoEF & CC. It has further observed that both these bodies shall give their respective recommendations before this Court and on that basis, the Court should pass appropriate order.
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61 We are therefore inclined to allow the present I.A. The direction in paragraph 56.1 of the order dated 3rd June 2022 (supra) is modified and clarified that the directions contained therein would not be applicable to the ESZs in respect of which a draft and final notification has been issued by the MoEF & CC and in respect of the proposals which have been received by the Ministry.
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.
34. It is further submitted by the respondent that Hon'ble the Supreme Court of India referring the guidelines has held that commercial use of water resource including ground water harvesting is regulated activity and that agriculture and horticulture practices of local communities, rain water harvesting is a permitted category as shown in Sl. 11 and
12. Further, fencing comes within the regulated category. The matter was argued before the Hon'ble Supreme Court of India and it was found that the 1 kilometer vide no development zone may not be feasible in all cases and specific instances where even for Sanjay Gandhi National Park and Guindy National Park in Mumbai and 40 Chennai metropolis respectively which have urban activities in very close proximity.
35 It is to be noted that the State Level Tourism and Eco Tourism strategy for Tiger Reserves shall be in tune with the guidelines and adequate provisions shall be made to ensure that the Eco Tourism does not get relegated to purely high in exclusive tourism living out local communities. The Local Advisory Committee have been constituted for these Tiger Reserves to ensure site specific norms on buildings and infrastructures in areas in site and close to Tiger Reserves, keeping in view the corridor value and ecologic esthetics, and to regularly monitor all these environmental clearances areas of coverage and ownership type of constructions. It is further provided that the Local Advisory Committee will monitor that there should not be any intensive form of land use like mining, quarrying and the live while granting NOC. It is to be noted that while economic development should not be allowed to take place at the cost of ecology or by causing vide spreading environmental destruction and violation, at the same time, the necessity to preserve the ecology and environment should not hamper economic and other developments. Both development and environmental must go hand in hand, in adverse there should not be any development at the cost of environment and vis- versa but there should be development while taking due care and ensuring the production of environment.
36. The petitioner has pressed the notification dated 06.11.2019, which provides for the local the people to undertake construction in their land for their use including the activities listed in sub paragraph 1 of paragraph 3 as per building Bye-laws to meet the residential need to local residents and as a regulated activities. The matter was reconsidered by the Hon'ble Supreme Court vide order dated 26.04.2023 and it was observed that the rights of the villagers residing 41 in the protected areas are required to be settled in accordance with the provisions contained in 1972 Act and such villagers are rehabitated outside the protected area. However, no such settlement of rights is available to the villagers residing in the ESZ areas. As stated in the said guidelines the purpose of declaring ESZ is not to hamper the day to day activities of the citizens. If the directions are as issued in continued it would certainly hamper the day to day activities of the citizens residing in ESZs.
37. In view of the above discussion and in light of the order dated 26.04.2023 passed by the Hon'ble Supreme Court of India quoted above in T.N. Godavarman's case, we direct the respondent as follows :
1. The respondents are directed to strictly follow the guidelines and also the provisions contained in the ESZ notifications pertaining to the respective areas with regard to prohibited activities, regulated activities and permissible activities.
2. While granting environmental clearance or forest clearance the respondents are directed to strictly follow the provisions contained in the Office Memorandum dated 17.05.2022 issued by MoEF&CC with regard to project activities in ESZ and other areas outside the protected areas.
3. With regard to the trenches along the boundary it shall be ensured that this trenches are not deep and shall be provided with soil bunds along the boundaries of the trenches, so that the animals do not get trapped and fall into the trenches.
4. Instead of the metallic wired fencing, these fences should be replaced with bio-fence with the involvement of local Forest Officers. The bio-fence of appropriate height and plant species shall be identified by the Forest Department. The bio-fence would also act as a habitat for birds, animal and provide necessary protection and feed to the herbivorous animals as well.42
5. The stone pitching along the ponds that prevents the animals to walk over to the ponds for drinking water shall be rectified. The Authorities may ensure that the stone pitching shall be covered with soil and grass bed to be created on the soil along the bank of the pond. The slope of the banks of the pond shall be such that there is free movement of animals to the pond.
38 The Local Advisory Committee headed by the Regional Commissioner, Jabalpur as constituted vide order dated 02.12.2020 by the State of Madhya Pradesh is directed to periodically monitor and ensure that the guidelines issues and the orders of the Supreme Courts are strictly complied with in accordance with the Rules in the ESZ.
39. With these observations the Original Application stands disposed of.
A copy of the order be sent to Commissioner, Jabalpur being head of the Local Advisory Committee of Tiger Reserve, DFO -Jabalpur and Member Secretary, State Pollution Control Board for compliance.
Sheo Kumar Singh, JM Dr. A Senthil Vel, EM 21st September, 2023 O.A No.92/2023(CZ) K