In Re: T.N. Godavarman Thirumulpad v. Union of India and Others
B. R. GA V AI, J.
I.A. NO. 131377 OF 2022:
1. The present I.A. is filed by the Union of India praying for
modification/clarification of the order passed by this Court dated 3rd June
20221 in I.A. No. 1000 of 2003 in WP(C) No. 202 of 1995.
2. The applicant specifically seeks modification of the directions
contained in paragraphs 56.1 and 56.5 of the order dated 3rd June 2022
(supra). The said paragraphs are reproduced hereinbelow:
“56.1. Each protected forest, that is, national park or wildlife
sanctuary must have an ESZ of minimum one kilometre measured
from the demarcated boundary of such protected forest in which
the activities proscribed and prescribed in the Guidelines of 9-2-
2011 shall be strictly adhered to. For Jamua Ramgarh Wildlife
Sanctuary, it shall be 500 m so far as subsisting activiti es are
concerned.
……….
56.5. In the event any activity is already being undertaken within
the one kilometre or extended buffer zone (ESZ), as the case
may be, of any wildlife sanctuary or national park which does not
come within the ambit of prohibited activities as per the 9-2-2011
Guidelines, such activities may continue with permission of the
Principal Chief Conservator of Forests of each State or Union
Territory and the person responsible for such activities in such a
situation shall obtain necessary permission within a period of six
months. Such permission shall be given once the Principal Chief
Conservator of Forests is satisfied that the activities concerned
do not come within the prohibited list and were continuing prior to
passing of this order in a legitimate manner. No new permanent
structure shall be permitted to come up for whatsoever purpose
within the ESZ.”
3. The clarification/modification of paragraph 56.1 of the order
dated 3rd June 2022 (supra) is sought to the extent that the Eco-Sensitive
Zones (for short, “ESZs”) which have already been notified (fin al and
draft) by the Ministry of Environment Forests and Climate Change (for
1 (2022) 10 SCC 544
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS
short, “MoEF & CC”) or the proposals for which have been received in
the Ministry be exempted from the directions therein. The applicant also
sought modification to the extent that paragraph 56.1 of the order dated
3rd June 2022 (supra) may not be made applicable where National Parks
and Wildlife Sanctuaries are located along inter-State boundaries and/or
common boundaries. Modification/clarification of th e directions in
paragraph 56.5 of the order dated 3rd June 2022 (supra) in its entirety is
additionally sought.
4. We have heard Ms. Aishwarya Bhati, learned Addit ional
Solicitor General (for short, “ASG”) appearing on behalf of the applicant,
Shri K. Parameshwar, learned amicus curiae as well as Senior Counsel
appearing on behalf of various State Governments.
5. It is submitted that the Government of India has already issued
Guidelines on 9 th February 2011 (hereinafter referred to as the “said
Guidelines”) for declaration of ESZs around National Parks and Wildlife
Sanctuaries. The said Guidelines were framed after consulting the
National Board for Wildlife (hereinafter referred to as “NBWL”), and
all the State and Union Territory Governments. The said Guidelines provide
a detailed procedure for submitting a proposal for declara tion 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.
6. It is further submitted that the direction as contained in paragraph
56.5 of the order dated 3 rd 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
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come up for whatsoever purpose within the ESZs would also c ause
great hardship.
7. It is further submitted that insofar as the direction in paragraph
56.1 of the order dated 3rd June 2022 (supra) is concerned, it mandates
that each protected forest, that is, National Park or Wildlife Sanctuary,
must have an ESZ of minimum one kilometre measured f rom the
demarcated boundary of such protected forest in which the activit ies
proscribed and prescribed in the said Guidelines shall be strictly adhered
to. Insofar as Jamua Ramgarh Wildlife Sanctuary is concerned, it is
directed that the ESZ shall be 500 meters so far as subsisting activities
are concerned.
8. The learned ASG, amicus curiae and Senior Counsel appearing
on behalf of various States submitted that in respect of various National
Parks and Wildlife Sanctuaries, already final notifications had been issued,
prescribing the boundaries for the ESZs. In some ca ses, the draft
notifications are pending and in some other cases, the proposal s for
issuance of draft and final notifications are pending with the Government
of India.
9. It is submitted that there cannot be a uniform boundary for all
the National Parks and Wildlife Sanctuaries. It is further submitted that
there cannot also be a uniform boundary for a particular National Park
or Wildlife Sanctuary. At times, it may be longer on one side and shorter
on the other side depending on various circumstances.
10. 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 (hereinafter referred to as
“1972 Act”) whereas there is no settlement 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 var ious
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 submitte d that
the procedure prescribed for obtaining the permission of the PC CF 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.
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
11. It is further submitted that though this Court has observed in
paragraph 54 of the order dated 3 rd June 2022 (supra) that the said
Guidelines are reasonable, it has nevertheless issued dire ctions which
are in conflict with the said Guidelines.
12. It is further contended that the issue in I.A. No. 1000 of 2003
was restricted to prohibition of mining activities in and ar ound Jamua
Ramgarh Wildlife Sanctuary and prescribing ESZs for the said Wildlife
Sanctuary only. As such, various State Governments did not have an
opportunity to address this Court.
13. Having considered the rival submissions, we find it appropriate
to refer to various orders passed by this Court on the issue of E SZs/
Buffer Zones.
14. The first of such orders was passed by this Court on 16 th
September 20052. It will be relevant to refer to paragraph 13 of the said
order, which reads thus:
“13. We have perused the affidavit dated 14-9-2005 filed by Mr
Anurag Bajpai on behalf of MoEF and the statement showing the
grant of temporary working permit in the last two years i.e. from
1-1-2003 to 31-12-2004 in the national parks, sanctuaries and forest
area. This is despite the order passed by this Court restraining the
mining activities in these areas. Learned amicus curiae submi ts
that the inspection of the government record shows a disma l
picture and he would shortly file an application fo r taking
appropriate action against the persons concerned. Pending filing
of the said application and further orders, we again reiterate that
without compliance with the environmental laws, in particular the
permission under the Forest (Conservation) Act, 198 0, no
temporary working permission or temporary permit or any other
permission by whatever name called shall be granted for mining
activities in the aforesaid areas. We further direct that no mining
activity would continue under any temporary working perm it
or permission which may have been granted. It appears from
the chart filed with the affidavit of Mr Anurag Bajpai that no
temporary working permission is in operation as of today. If
it is otherwise, an affidavit to that effect shall be filed wi thin
two weeks giving the particulars of such permission. ”
[emphasis supplied]
2 (2006) 5 SCC 25
613
15. It can thus clearly be seen that this Court directed that no
mining activity would be permitted to continue under any temporary
working permit or permission which may have been granted.
16. It will further be relevant to refer paragraph 15 of th e said
order, which reads thus:
“15. MoEF is directed to place on record within three weeks its
viewpoint on the question of area of buffer zone and other related
matters such as should it be universal or place specific. This should
be done after also obtaining the viewpoint of the National Board
of Wildlife.”
17. It can thus be seen from the said paragraph that this C ourt
directed MoEF to place on record within three weeks its viewpoi nt on
the question of area of buffer zone and other related matters such as
should it be universal or place specific. The Court further directed that
this should be done after obtaining the viewpoint of the NBWL.
18. The second of such orders is passed on 4th August 20063. The
said order basically pertains to banning the mining activities in the National
Parks, Sanctuaries and forest areas. The Court laid down various pre-
conditions wherein temporary working permits could be granted.
19. The next order is passed on 4 th December 20064. In the said
order, the Court expressed its anguish towards the various State
Governments for not responding to the letter issued by MoEF dated 27th
May 2005 requiring them to initiate measures for identification of suitable
areas and submit detailed proposals at the earliest. It will be relevant to
refer to paragraphs 3 and 4 of the said order, which read thus:
“3. The order earlier passed on 30-1-2006 [ Goa
Foundation v. Union of India, (2011) 15 SCC 793] refers to the
decision which was taken on 21-1-2002 to notify the areas within
10 km of the boundaries of national parks and sanctuaries as eco-
sensitive areas. The Letter dated 27-5-2005 is a departure from
the decision of 21-1-2002. For the present, in this case, we are
not considering the correctness of this departure. That is be ing
examined in another case separately. Be that as it may, it is evident
that the States/Union Territories have not given the import ance
3 (2010) 13 SCC 740
4 (2011) 15 SCC 791
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
that is required to be given to most of the laws to protect
environment made after Rio Declaration, 1992.
4. The Ministry is directed to give a final opportunity to all States/
Union Territories to respond to its Letter dated 27-5-2005. The
State of Goa also is permitted to give appropriate propos al in
addition to what is said to have already been sent to the Centra l
Government. The communication sent to the States/Un ion
Territories shall make it clear that if the proposals a re not sent
even now within a period of four weeks of receipt o f the
communication from the Ministry, this Court may have to consider
passing orders for implementation of the decision that was taken
on 21-1-2002, namely, notification of the areas within 10 km of
the boundaries of the sanctuaries and national parks as eco-
sensitive areas with a view to conserve the forest, wildlif e and
environment, and having regard to the precautionary principles. If
the States/Union Territories now fail to respond, they would do so
at their own risk and peril.”
20. It can be seen that this Court refers to its earlier order dated
30th January 2006 wherein a reference is made to the decision dated
21st January 2002 to notify the areas within 10 kilometres of the boundaries
of National Parks and Sanctuaries as ESZs. Though the order re cords
that the letter dated 27 th May 2005 is a departure from the decision
taken on 21st January 2002, the Court observes that, in the said case, the
Court was not considering the correctness of the said departur e. The
Court therefore directed the Ministry to give a final oppor tunity to all
States/Union Territories to respond to its Letter dated 27 th May 2005.
The said order states that the communication should mention that if the
proposals were not sent within a period of four weeks from the receipt
of the communication from the Ministry, this Court may have to consider
passing orders for implementation of the decision that was taken on 21st
January 2002, i.e., notification of the areas within 10 kilometres of the
boundaries of the sanctuaries and National Parks as ESZs.
21. The next order of this Court is dated 21 st April 2014 in the
case of Goa Foundation v. Union of India and Others 5. It will be
relevant to refer to the following observations of this Court in the said
order:
5 (2014) 6 SCC 590
615
“49. ……The result is that the order passed by this Court saying
that there will be no mining activity within one kilometre safety
zone around national park or wildlife sanctuary has to be enforced
and there can be no mining activities within this area of on e
kilometre from the boundaries of national parks and wildlif e
sanctuaries in the State of Goa.”
22. The Court has clarified that there shall be no mining activity
within one kilometre of the safety zone around National Park or Wildlife
Sanctuary and that this has to be enforced. It is also reiterated that there
can be no mining activities within this area of one kilome tre from the
boundaries of National Parks and Wildlife Sanctuaries in the State of
Goa.
23. The Court thereafter refers to the earlier orde r dated 4 th
December 2006 (supra) in the said case and observed thus:
“50. ……..It will be clear from the order dated 4-12-2006 [Goa
Foundation v. Union of India, (2011) 15 SCC 791] of this Court
that this Court has not passed any orders for implementation of
the decision taken on 21-1-2002 to notify areas within 10 km of
the boundaries of national parks or wildlife sanctuaries as eco-
sensitive areas with a view to conserve the forest, wildlif e and
environment. By the order dated 4-12-2006 [ Goa
Foundation v. Union of India, (2011) 15 SCC 791] of this Court,
however, the Ministry of Environment and Forests, Government
of India, was directed to give a final opportunity to all Stat es/
Union Territories to respond to the proposal and also to refer to
the Standing Committee of the National Board for Wildlife the
cases in which environment clearance has already been granted
in respect of activities within the 10 km zone from the boundaries
of the wildlife sanctuaries and national parks. There is, therefore,
no direction, interim or final, of this Court prohibiting mining
activities within 10 km of the boundaries of national parks or wildlife
sanctuaries.”
24. It could thus be seen that the Court has specifically observed
that this Court had not passed any orders for implementation of the
decision taken on 21st January 2002 to notify areas within 10 kilometres
of the boundaries of National Parks or Wildlife Sanctuaries as ESZs
with a view to conserve the forest, wildlife and environment. The Court
therefore clarified that there is no direction, interim or final, prohibiting
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
mining activities within 10 kilometres of the boundaries of National Parks
or Wildlife Sanctuaries.
25. It will be relevant to refer to paragraphs 87.3 and 88.1 of the
said order, which read thus:
“87.3. Until the order dated 4-8-2006 [ T.N. Godavarman
Thirumulpad v. Union of India, (2010) 13 SCC 740] of this Court
is modified by this Court in IA No. 1000 in T.N. Godavarman
Thirumulpad v. Union of India, there can be no mining activities
within one kilometre from the boundaries of national parks and
sanctuaries in Goa.
88.1. MoEF will issue the notification of eco-sensitive zones around
the national park and wildlife sanctuaries of Goa after following
the procedure discussed in this judgment within a period of six
months from today.”
26. It can thus be seen that this Court has held that until the order
dated 4th August 2006 (supra) is modified by this Court in IA No. 1000
of 2003 in the case of T.N. Godavarman Thirumulpad v. Union of
India, there can be no mining activities within one kilometre from the
boundaries of National Parks and Sanctuaries in Goa. The Court further
directed MoEF to issue the notification of ESZs around the Nat ional
Park and Wildlife Sanctuaries of Goa after following the proc edure
discussed in the said judgment. The same was directed to be done within
a period of six months from the date of the said order.
27. The next relevant order would be dated 11th December 2018.
It will be relevant to refer to the following part of the said order:
“The learned ASG has informed us that there are 104
National Parks and 558 Wildlife Sanctuaries making a total of 662
National Parks and Wildlife Sanctuaries in the country.
The proposals for declaring areas around these National
Parks and Wildlife Sanctuaries as Eco Sensitive Zone have been
received from State Governments / UT Administrations for 641
National Parks and Wildlife Sanctuaries. No proposals have been
received in respect of 21 National Parks and Wildlife Sanctuaries.
The proposals have been accepted and Notification has been
issued in respect of 289 National Parks and Wildlife Sanctuaries
as on 26.11.2018 and draft Notification has been prepared in
respect of 206 National Parks and Wildlife Sanctuaries.
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The declaration with regard to Eco Sensitive Zone is under
process with the Ministry of Environment, Forests and Clima te
Change (MoEF) as well as with the State Governments in respect
of 4 146 National Parks and Wildlife Sanctuaries.
We expect the Ministry of Environment, Forests and Climate
Change to actively pursue the preparation of the draft Notification
and to issue a final Notification at the earliest.
The proposals for 21 National Parks and Wildlife Sanctuaries
in respect of which proposals have not yet been received by the
MOEF are as follows:-
……..
It is submitted by the learned Amicus that this issue h as
been pending since sometime in December, 2006. 12 years have
gone-by but no effective steps have been taken by the Sta te
Governments in respect of the National Parks and Wi ldlife
Sanctuaries mentioned above.
Under the circumstances, we direct that an area of 10 Kms
around these 21 National Parks and Wildlife Sanctuar ies be
declared as Eco Sensitive Zone by the MoEF. The declaration be
made by the MoEF at the earliest.
Liberty is granted to the State Governments to move an
application for modification of this order along with proposal only
two weeks after submission of the proposals to the MoEF.”
28. It can be seen that this Court has recorded the submissions of
the learned ASG that there were 104 National Parks and 558 Wil dlife
Sanctuaries making a total of 662 National Parks and Wildlife Sanctuaries
in the country. It was further recorded that the proposals for decl aring
areas around these National Parks and Wildlife Sanctuaries as ESZs
had been received from the State Governments/Union Territories . It
can further be seen that no proposals have been received in r espect of
21 National Parks and Wildlife Sanctuaries. It further recorded that the
proposals had been accepted and notification had been issued in respect
of 289 National Parks and Wildlife Sanctuaries as on 26 th November
2018 and draft notification had been prepared in respect of 206 National
Parks and Wildlife Sanctuaries. The Court therefore expected the MoEF
& CC to actively pursue the preparation of the draft Notification and to
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
issue a final Notification at the earliest. The Court then r ecorded 21
National Parks and Wildlife Sanctuaries in respect of which proposals
have not yet been received by the MoEF & CC alongside its ang uish
that though 12 years had been passed, no effective steps have been
taken by the State Governments in respect of the National Parks and
Wildlife Sanctuaries named in the said order. Therefore, the Court directed
that an area of 10 kilometres around these 21 National Parks and Wildlife
Sanctuaries be declared as ESZs by the MoEF & CC. Libe rty was
granted to the State Governments to move an application for modification
of the said order. However, it further directed that the application should
be along with the proposal for declaration of ESZs.
29. It is to be noted that the learned Judges of this Court, i n the
case of Goa Foundation 6, had directed that the MoEF & CC shall
follow the procedure and issue notification of ESZs under Rule 5 of the
Environment (Protection) Rules, 1986 (hereinafter referred to as “1986
Rules”). The relevant provisions of the 1986 Rules ar e reproduced
hereinbelow:
“5. Prohibition and restriction on the location of industri es
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 opera tions 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.
(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.
6 (2014) 6 SCC 590
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(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 Centr al
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 i n 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.
(d) The Central Government shall within a period of o ne
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
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
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 proces s 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).]”
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 ta ken 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 Rules requires that whenever it
appears to the Central Government that it is expedi ent 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
oncarrying 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
621
is entitled to file an objection to the Central Governme nt 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 a nd Wildlife
Sanctuaries.
33. The said Guidelines refer to a meeting of the Indian Board for
Wildlife held on 21 st 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 Sect ion
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 Pro tected
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 develop ment. 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 complia nce vide
letter dated 27th May 2005.
34. The said Guidelines thereafter refer to the directio ns of this
Court dated 4th December 2006. It also refers to the statutory provisions
as contained in Section 5C (1) of the 1972 Act, Section 3 of the 1986 Act
and Rule 5 of the 1986 Rules. The said Guidelines state that the purpose
of declaring ESZs around National Parks and Sanctuaries is to create
some kind of Shock Absorber for the Protected Areas. They would also
act as a transition zone from areas of high protection to areas involving
lesser protection. It also reiterates the decision of the N BWL that the
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
activities in the ESZs would be of a regulatory nature rather than
prohibitive nature unless and otherwise so required. Paragraph 4 of the
said Guidelines notes that many of the existing Protected Areas have
already undergone tremendous development in close vicinity t o their
boundaries. It refers to the Guindy National Park, Tamil Nadu, Sanjay
Gandhi National Park, Maharashtra, etc. and notes that the Protec ted
Areas are lying in the urban set up. It therefore observes t hat defining
the extent of ESZs around Protected Areas will have to be kept flexible
and Protected Area specific. It notes that the width of ESZs and type of
regulations will differ from one Protected Area to another Pro tected
Area. It however notes that, as a general principle, the width of the
ESZs could go up to 10 kilometres around a Protected Area as provided
in the Wildlife Conservation Strategy-2002. It further notes that in case
where sensitive corridors, connectivity and ecologically important patches,
crucial for landscape linkage, are even beyond 10 kilometres width, these
should be included in the ESZs. It further notes that even in context of a
particular Protected Area, the distribution of an area of the ESZ and the
extent of regulation may not be uniform all around and it could be of
variable width and extent. The said Guidelines notes that thoug h the
directions were issued by this Court to all the States/Union Territories,
except a few States, several other States/Union Territo ries have not
come forward with the proposals for declaration of ESZs. It was
observed that this could be perhaps for want of guidelines in this regard.
It further notes that this Court in its judgment and order dated 3 rd
December 2010 in a case relating to construction of park at Noida near
Okhla Bird Sanctuary, observed that the ESZs around the Prote cted
Areas had not been notified as the Government of India had not issued
any guidelines in this regard.
35. It thereafter refers to the Committee under the Chairmanship
of Shri Pronab Sen for identifying parameters for designating Ecologically
Sensitive Areas in India.
36. The said Guidelines thereafter state in paragraph 6 tha t the
basic aim of notifying ESZs is to regulate certain activities around National
Park and Wildlife Sanctuary so as to minimize the negative i mpact of
such activities on the fragile ecosystem encompassing the P rotected
Area. It states that the first step towards it is to prepare an inventory of
the different land use patterns and the different types of activities, types
and number of industries operating around each of the Protected Area
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as well as important Corridors. It states that the inventory could be done
by the concerned Range Officers, who can take a stock of activit ies
within 10 kilometres of the range. It further notes that a Com mittee
comprising of the concerned Wildlife Warden, an Ecologist, an official
from the Local Self Government and an official of t he Revenue
Department of the concerned area, could be formed to suggest the
following:
(i) Extent of eco-sensitive zones for the Protected Area being
considered.
(ii) The requirement of such a zone to act as a shock absorber
(iii) To suggest the best methods for management of the eco-
sensitive zones, so suggested.
(iv) To suggest broad based thematic activities to be included in
the Master Plan for the region.
37. It further notes that based on the above, the Chief Wildlife
Warden could group the activities under the following categories:-
(i) Prohibited
(ii) Restricted with safeguards.
(iii) Permissible
38. The said Guidelines thereafter note that once the proposal for
ESZs has been finalized, the same should be forwarded to the MoEF &
CC for further processing and notification. An indicative list of details
that need to be submitted along with the proposals is also appended to
the said Guidelines.
39. The said Guidelines further note that where the boundary of a
Protected Area abuts the boundary of another State/Union Territory
where it does not form part of any Protected Area, it should b e the
endeavour of both the State/Union Territory Governments to have a
mutual consultation and decide upon the width of the ESZs around the
Protected Area in question. The said Guidelines emphasize that the State
Government should endeavour to convey a very strong message to the
public that ESZs are not meant to hamper their day to day activities, but
instead, are meant to protect the precious forests/Protect ed Areas in
their locality from any negative impact, and also to refine the environment
around the Protected Areas. It further notes that these guideline s are
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
indicative in nature and the State/Union Territory Governments may use
these as basic framework to develop specific guidelines a pplicable in
the context of their National Parks, Wildlife Sanctuaries , important
corridors etc. with a view to minimizing and preferably eliminating any
negative impact on Protected Areas.
40. A list of the activities which are prohibited, regulated and
permitted is contained in Annexure-I of the said Guidelines, which reads
thus:
Sl.
No.
Activity Prohibited Regulated Permitted Remarks
1. Commercial
mining
Y Regulation sill not
prohibit the digging of
earth for construction
or repair of houses for
manufacture of country
tiles or bricks for
housing for personal
2. Felling of trees Y With permission from
appropriate authority
3. Setting of saw
mills
Y
4. Setting of
industries causing
pollution (Water,
Air, Soil., Noise,
etc.)
Y
5. Establishment of
hotels and resorts
Y As per approved master
plan, which takes care
of habitats allowing no
restriction on
movement of wild
animals
6. Commercial use of
firewood
Y For hotels and other
business related
establishment
7. Drastic change of
agriculture systems
Y
8. Commercial use of
natural water
resources including
ground water
harvesting
Y As per approved master
plan, which takes care
of habitats allowing no
restriction on
movement of wild
animals.
9. Establishment of
major hydroelectric
projects
Y
10. Erection of
electrical cable
Y Promote underground
cabling
11. Ongoing
agriculture and
horticulture
practices local
communities
Y However, excessive
expansion of some of
these activities should
be regulated as per the
master plan
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12. Rain Water
harvesting
Y Should be actively
promoted
13. Fencing of
premises of hotels
and lodges
Y
14. Organic farming Y Should be actively
promoted
15. Use of polythene
bags by
shopkeepers
Y
16. Use of renewable
energy sources
Y Should be actively
promoted
17. Widening of roads Y This should be done
with proper EIA and
mitigation measures
18. Movement of
vehicular traffic at
night
Y For commercial
purpose
19. Introduction of
exotic species
Y
20. Use of production
of any hazardous
substances
Y
21. Undertaking
activities related to
tourism like over-
flying the National
Park are by any
aircraft, hot-air
balloons
22. Protection of hill
slopes and river
banks
Y As per the master plan
23. Discharge of
effluents and solid
waste in natural
water bodies or
terrestrial are
Y
24. Air and vehicular
pollution
Y
25. Sign board &
hoardings
Y As per the master plan
26. Adoption of green
technology for all
activities
Y Should be actively
promoted.
41. It is to be noted that this Court in paragraph 54 of the orde r
dated 3rd June 2022 (supra) has, in fact, held the said Guidelines to be
reasonable and also accepted the view of the Standing Commit tee of
the NBWL that uniform guidelines may not be possible in res pect of
each sanctuary or National Park for maintaining the ESZs. It is also
observed that the sanctuaries like Sanjay Gandhi Nationa l Park and
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
Guindy National Park in Mumbai shall form special cases. Th e said
paragraph 54 is reproduced hereinunder:
“54. In our opinion, the Guidelines framed on 9-2-2011 appear to
be reasonable and we accept the view of the Standing Committee
that uniform guidelines may not be possible in respect of ea ch
sanctuary or national park for maintaining ESZ. We are of the
opinion, however, that a minimum width of 1 km ESZ ought to be
maintained in respect of the protected forests, which forms part
of the recommendations of CEC in relation to Catego ry B
protected forests. This would be the standard formula, subject to
changes in special circumstances. We have considered CEC’s
recommendation that the ESZ should be relatable to the a rea
covered by a protected forest but the Standing Committee’s view
that the area of a protected forest may not always be a reasonable
criteria also merits consideration. It was argued before us that
the 1 km wide “no-development-zone” may not be feasible in all
cases and specific instances were given for Sanjay Gandhi National
Park and Guindy National Park in Mumbai and Chennai metropolis
respectively which have urban activities in very close proximity.
These sanctuaries shall form special cases.”
42. It is to be noted that an elaborate and exhaustive list has been
prepared by MoEF & CC of the activities which shall be prohibited, the
activities which shall be regulated and the activities whi ch shall be
permitted.
43. In the application, it is stated that after the proposa ls are
received from the State Governments/Union Territory Administrations,
they are scrutinized in consultation with the Wildlife Institute of India,
Dehradun, and in case of tiger reserves, with the N ational Tiger
Conservation Authority. They are thereafter published in the Official
Gazette of the Central Government in both Hindi and English. They are
also placed in the public domain for 60 days for seeking comm ents of
concerned stakeholders. The comments so received are compiled and
scrutinized and observation of the concerned State Government/Union
Territory Administration is sought on the same. The aforesaid
requirements are in tune with the provisions of Rule 5 of 1986 Rules.
44. The application further states that the proposal is the reafter
placed before an Expert Committee constituted for ESZ within the MoEF
& CC. The said Committee comprises of the following:
627
(i) Indian Institute of Remote Sensing/Indian Space Research
Organization,
(ii) Ministry of Jal Shakti,
(iii) Ministry of Rural Development,
(iv) Forest Survey of India,
(v) Town & Country Planning Organization, Government of
India,
(vi) National Tiger Conservation Authority,
(vii) Wildlife Institute of India,
(viii) GB Pant Institute of Himalayan Environment &
Development,
(ix) Indian Council of Forestry Research and Education,
(x) World Wildlife Fund,
(xi) Zoological Survey of India,
(xii) Botanical Survey of India,
(xiii) Salim Ali Centre for Ornithology and Natural Hi story
(SACON).
45. It is further stated in the application that ba sed on the
recommendation of the Expert Committee (ESZ), the Ministry finalizes
the notification of ESZs and after due legal vetting by the Ministry of
Law & Justice, final notifications specifying the ESZ s around the
Protected Areas are notified. It could thus be seen that an elaborate
procedure including consideration by a Committee of Experts comi ng
from 13 organizations having expertise in wildlife ecology, forest etc. is
followed before a final notification prescribing ESZs is notified.
46. In the application filed by the Union of India, various illustrations
have been given to point out as to how if the directions issued in paragraph
56.5 of the order dated 3rd June 2022 (supra) are not modified, a severe
hardship would be caused to the millions of people. We refer to the
same hereunder:
(i) “The ESZ around Nagarjunasagar Srisailam Tiger Reserve
in Andhra Pradesh extends from 0 to 26 kilometres and
100 villages are situated within it ( Zero extent of ESZ is
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
due to Krishna River and interstate boundary with
Telangana);
(ii) The ESZ around Valmiki Wildlife Sanctuary, Valmi ki
National Park and Valmiki Tiger Reserve in Bihar extends
from 0 to 9 kilometres and 323 villages are situated within it
(zero extent of ESZ is towards Western side sharing
inter-state boundaries with Uttar Pradesh and towards
Northern side sharing international boundary with
Nepal);
(iii) The ESZ around Betla National Park, Palamau Wildlife
Sanctuary, and Mahuadanr Wolf Sanctuary in Jharkhand
extends from 0 to 9 kilometres and 382 villages are situated
within it ( Zero extent of ESZ is due to Inter-State
boundary);
(iv) The ESZ around Cauvery Wildlife Sanctuary in Karnataka
extends from 1 to 14.5 kilometres and 107 villages are
situated within it;
(v) The ESZ around Kanha National Park and Phen Wildlife
Sanctuary in Madhya Pradesh extends from 0 to 30
kilometres and 168 villages are situated within it (Zero extent
of Eco-sensitive Zone is towards the eastern side having
interstate boundary with Chhattisgarh);
(vi) The ESZ around Tadoba-Andhari Tiger Reserve in
Maharashtra extends from 3 to 6 kilometres and 150 villages
are situated within it;
(vii) The ESZ around Jaisamand Wildlife Sanctuary in Rajasthan
extends from 1.6 to 8.9 kilometres and 83 villages are
situated in it;
(viii) Even a small ESZ such as the one around Keoladeo National
Park in Rajasthan which extends from 0.5 to 1.5 kilometres
has 22 villages situated in it.”
47. It would thus reveal that in the ESZ around Nagarjunasagar
Srisailam Tiger Reserve in Andhra Pradesh, 100 villages are si tuated
within it. In the ESZ around Valmiki Wildlife Sanctuary, Valmiki National
Park and Valmiki Tiger Reserve in Bihar, 323 villages are situated within
it. In the ESZ around Betla National Park, Palamau Wildlife Sanctuary,
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and Mahuadanr Wolf Sanctuary in Jharkhand, 382 villages are situated
within it. In the ESZ around Cauvery Wildlife Sanctuary in Karnataka,
107 villages are situated within it. In the ESZ around Kanha Nat ional
Park and Phen Wildlife Sanctuary in Madhya Pradesh, 168 villages are
situated within it. In the ESZ around Tadoba-Andhari Tiger Reserve in
Maharashtra, 150 villages are situated within it. In the ESZ around
Jaisamand Wildlife Sanctuary in Rajasthan, 83 villages are situated in it.
Even in a small ESZ around Keoladeo National Park in Rajasthan, 22
villages situated in it.
48. If the direction as issued by this Court in paragraph 56.5 of
the order dated 3 rd 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 example s,
hundreds of villages are situated within the ESZs in the countr y. If no
permanent construction is to be permitted for any purpose, a vill ager
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 ot her
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 co nduct 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 area s 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;
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
(ii) The construction of forest chowkies, watch towers, and
other structures for protection of wildlife and forests;
(iii) The construction of interpretation centres, toilets and other
basic structures for the environmental education of visitors
to National Parks and sanctuaries.
50. It is further to be noted that there are various regulated and
permissible activities. There are also certain projects of national and
strategic importance such as construction of National Highways, Railways,
Defence related infrastructure etc. The effect of the direction in 56.5 of
the order dated 3 rd 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 17 th May 2022 which
required that any activity listed in Schedule of the EIA Notification 2006,
when conducted in a notified ESZs, or in the case of National Parks and
Sanctuaries for which no ESZ has been finally notified, when conducted
within 10 kilometres of such National Park or Sanctuary, re quires 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 const ruction
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 re fine the
environment around the Protected Areas.
631
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 s uch
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.
54. As was pointed out by the counsel for one of the States, t he
entire municipal area of the Sulthan Bathery Block Panchayat is situated
within the ESZ area.
55. Insofar as direction in paragraph 56.1 of the order dated 3 rd
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 declare d as ESZ
cannot be uniform and will be Protected Area specific. In some cases, it
may be 10 kilometres on one side and 500 meters on the other side. In
certain cases, it may not be possible to have a uniform minimum area by
virtue of inter-state boundaries or a sea or a river beyond one side of the
Protected Area. In any case, a detailed procedure is r equired to be
followed as prescribed under Rule 5 of the 1986 Rules which we have
already referred hereinabove. We find that once such a notifica tion 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
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
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 in to 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 direc tion 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 i n 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 Nati onal 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.
59. As already discussed hereinabove, the ESZs are required to
be notified after following the procedure as prescribed under the 1986
Rules and the said Guidelines. Such notifications cannot be issued unless
a close scrutiny at various levels including the scrut iny by Expert
Committee consisting of experts from 13 organizations. As such, we
find that the direction as contained in paragraph 56.6 of the order dated
3rd June 2022 (supra) also needs to be modified.
60. Insofar as the restriction on mining is concerned, we are of
the considered view that it has been the consistent view of this Court
that the mining activities within an area of one kilometre of the boundary
633
of the Protected Areas will be hazardous for the wildlife. Though in the
case of Goa Foundation (supra), the said directions were issued in
respect of State of Goa, we find that such directions need to b e issued
on Pan-India basis.
61. We are therefore inclined to allow the present I.A. The direction
in paragraph 56.1 of the order dated 3 rd 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 notificat ion has been
issued by the MoEF & CC and in respect of the proposals whic h have
been received by the Ministry.
62. We, however, direct the Central Government that wide publicity
should be given to the draft notification which is required to be published
under the provisions of clause (a) of sub-rule (3) of Rule 5 of the 1986
Rules. We further direct that the final notification to be published under
clause (d) of sub-rule (3) of Rule 5 of the 1986 Rules shall not be given
effect for a period of 30 days from the date of issuance th ereof.
63. It is further directed that any person who is aggrieved with
such a final notification would be entitled to approach this Court directly
by filing an application in the present proceedings.
64. We further clarify that the direction contained in paragrap h
56.1 of the order dated 3 rd 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 t he
respective Protected Areas with regard to prohibite d
activities, regulated activities and permissible activities;
IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF
INDIA AND OTHERS [B. R. GAVAI, J.]
(ii) We further direct that while granting Environmental and
Forest Clearances for project activities in ESZ and ot her
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 Off ice
Memorandum dated 17th May 2022 issued by MoEF & CC.
67. All the other present I.As shall stand disposed of in terms of
the above. No costs.
Nidhi Jain I.As disposed of.
(Assisted by : Tamana, LCRA)