HOSPITALITY ASSOCIATION OF MUDUMALAI versus IN DEFENCE OF ENVIRONMENT AND ANIMALS AND ORS. ETC. on 14 October 2020

HOSPITALITY ASSOCIATION OF MUDUMALAI

v.

IN DEFENCE OF ENVIRONMENT AND

ANIMALS AND ORS. ETC.

(Civil Appeal No. 3438-3439 of 2020)

OCTOBER 14, 2020

[S. A BOBDE, CJI, S. ABDUL NAZEER AND

SANJIV KHANNA, JJ.]

Wildlife (Protection) Act, 1972– Elephant Corridor notifiedin Sigur Plateau of Nilgiris District – Resort owners/other privateland owners directed to vacate the lands falling within the notifiedelephant corridor – Notification challenged – Upheld by High Court– On appeal, held: State Government empowered to take measuresto protect forests and wildlife falling within its territory in light ofEntries 17A, 17B in the concurrent list and its power under theWildlife Act – State Government empowered to protect the habitatssituated on the appellants’ land by notifying an elephant corridorthereupon – Environmental Law – Constitution of India – ConcurrentList- Entries 17A, 17B.

Environmental Law – Precautionary Principle – Held:Precautionary Principle makes it mandatory for the StateGovernment to anticipate, prevent and attack the causes ofenvironmental degradation.

Disposing of the appeals, the Court

HELD: 1.1 The Wildlife Trust of India terms elephants asa “keystone species” because their nomadic behavior isimmensely important to the environment. Herds of roamingelephants play several important roles in the ecosystem:

(i) Landscape architects: Elephants create clearings in theforest as they move about, preventing the overgrowth of certainplant species and allowing space for the regeneration of others,which in turn provide sustenance to other herbivorous animals.

(ii) Seed dispersal: Elephants eat plants, fruits and seeds,releasing the seeds when they defecate in other places as they

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Atravel. This allows for the distribution of various plant species,which benefits biodiversity.

(iii) Nutrition: Elephant dung provides nourishment toplants and animals and acts as a breeding ground for insects.

(iv) Food chain: Apex predators like tigers will sometimesBhunt young elephants. Further, elephant carcasses provide foodfor other animals.

(v) The umbrella effect: By preserving a large area forelephants to roam freely, one provides a suitable habitat for manyother animal and plant species of an ecosystem.C

Elephant corridors allow elephants to continue theirnomadic mode of survival, despite shrinking forest cover, byfacilitating travel between distinct forest habitats. Corridors arenarrow and linear patches of forest which establish and facilitateconnectivity across habitats. In the context of today’s world,Dwhere habitat fragmentation has become increasingly common,these corridors play a crucial role in sustaining wildlife by reducingthe impact of habitat isolations. In their absence, elephants wouldbe unable to move freely, which would in turn affect many otheranimal species and the ecosystem balance of several wild habitatsEwould be unalterably upset. It would also eventually lead to thelocal extinction of elephants, a species which is widely reveredin our country and across the world. To secure wild elephants’future, it is essential that their uninterrupted movement betweendifferent forest habitats is ensured. For this, elephant corridorsmust be protected. [Para 34][292-A-G]F

1.2 Legal intervention in preservation of these corridorshas been necessitated because wildlife corridors are threatenedby various social, economic and anthropogenic factors, as notedabove. Commercial activities such as running of private resortsand construction of new buildings with barbed and electric fencesGwithin elephant corridors pose a serious threat of fragmentationand destruction of habitats. The long-term survival of the speciesdepends on maintaining viable habitats and connecting corridorswhich maintain variance in the species’ gene pool and avoid otherrisks associated with habitat fragmentation and isolation ofspecies. Overtime, several environmental legislations includingH

the Indian Forest Act, 1927 and the Wildlife Act have been enactedto provide for the protection of forests and wild animals, with aview to ensuring ecological balance and preserving naturalhabitats including such corridors. The corridor in the Sigur Plateauof Tamil Nadu connects the Western and the Eastern Ghats andsustains elephant populations and their genetic diversity. TheSigur Plateau has the Nilgiri Hills on its south-western side andthe Moyar River Valley on its north-eastern side. Depending onthe monsoon, the elephants migrate in search of food and waterand during the course of their migration, they have to cross theSigur Plateau. This migratory path is considered to be very crucialas it connects several contiguous forest areas forming the NilgiriBiosphere Reserve in the states of Tamil Nadu, Karnataka andKerala, the largest protected forest area in India. [Paras 35-37][292-H; 293-A-C; 294-B-C]

State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 :[1988] 3 Suppl. SCR 455 – relied on.

1.3 Conflicting maps of this corridor were presented beforethe Madras High Court, which thus directed the StateGovernment to choose between: (i) the elephant corridorsidentified in the Wildlife Trust of India’s book titled “Right ofPassage – Elephant Corridors of India” which were referred toby the Central Government in its letter dated 11.08.2006 to theState Government; or (ii) the single elephant corridor identifiedby the Expert Committee appointed by the High Court. As perthe aforesaid book titled “Right of Passage”, the following 4corridors lie in the Sigur Plateau region: (i) Avarahalla – Sigur,(ii) Kalhatti – Sigur at Glencorin, (iii) Moyar – Avarahalla and (iv)Kalmalai – Singara and Avarahalla. The Expert Committeeexamined all the elephant corridors in the area and identified asingle elephant corridor comprising of various elephant corridorsin the Sigur Plateau region. The State Government, vide theimpugned G.O., notified this single elephant corridor, along thelines of the recommendations made by the Expert Committee.[Para 38][294-D-F]

1.4 The State Government is empowered to take measuresto protect forests and wildlife falling within its territory in light ofEntries 17A ‘Forest’ and 17B ‘Protection of wild animals and A

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Abirds’ in the concurrent list and the power of the State Governmentunder the Wildlife Act to notify Sanctuaries and other protectedareas. It is an admitted position that the land of the appellantshas also been notified as private forest in 1991 under the TamilNadu Preservation of Private Forests Act, 1949, which prohibitscutting of trees in private forests. Given that the classification ofBthe appellants’ land as private forest land is not in dispute here,there is no difficulty in holding that the State Government wasempowered to protect the habitats situated on the appellants’land by notifying an elephant corridor thereupon. [Para 39][294-H; 295-A-C]

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1.5 Furthermore, since the impugned decision of the HighCourt, the Ministry of Environment, Forest and Climate Changevide its Notification S.O. 4498(E) dated 13.12.2019 has declaredthe entire area in question and adjoining areas around theMudumalai Tiger Reserve as an Eco-Sensitive Zone. Under this DNotification, the State Government of Tamil Nadu has beenexpressly directed to regulate land use generally, as wellcommercial establishment of hotels/resorts specifically, in theEco-Sensitive Zone so established. The “Precautionary Principle”has been accepted as a part of the law of the land. Articles 21, 47,48A and 51A(g) of the Constitution of India give a clear mandate Eto the State to protect and improve the environment and tosafeguard the forests and wild life of the country. It is the duty ofevery citizen of India to protect and improve the naturalenvironment including forests and wild life and to have compassionfor living creatures. The Precautionary Principle makes it

Fmandatory for the State Government to anticipate, prevent andattack the causes of environmental degradation. In order toprotect the elephant population in the Sigur Plateau region, itwas necessary and appropriate for the State Government to limitcommercial activity in the areas falling within the elephantcorridor. [Para 40][295-D-G]G

M.C. Mehta v. Union of India and Ors. (1997) 3 SCC715 : [1996] 7 Suppl. SCR 465 – relied on.

1.6 The second limb of the appellants’ submissionscomprises of questions about the scientific accuracy of the ExpertHCommittee’s Report and contentions that the dimensions as well as the location of the single corridor identified therein are at oddswith authoritative scientific publications. It has been argued bythe appellants that their resorts and other establishments do notfall within the historic corridors identified in these publications.These assertions were dealt with by the High Court which heldthat there was material on record to show presence of elephantsas well as a past incident of human-elephant conflict, whichresulted in the death of a French tourist, in the region where theappellants’ resorts are located. The High Court also held thatany absence of elephants from the areas surrounding theappellants’ resorts was, in fact, due to the construction activitiesof the appellants whereby access of the elephants has beenrestricted through erection of electric fencing. The Court seesno reason to interfere with the above factual findings of the HighCourt and also do not find fault in the State Government’s adoptionof the recommendations of the High Court-appointed Expert Committee, through the impugned G.O. [Para 41][296-A-D]

1.7 The appellants have contended that there has beensubstantial variance between the acreage recommended foracquisition by the Expert Committee Report and the acreage inthe impugned G.O. It is further alleged that the acreage in thenewspaper advertisement by the State Government invitingobjections to notification of the corridor is also different from theacreage in the impugned G.O. As all the objections receivedpursuant to the said newspaper advertisement were rejected bythe State Government and since the impugned G.O. purported toadopt the recommendations of the Expert Committee, theappellants allege that the said variance in acreage is arbitraryand unreasonable. It has also been alleged that the DistrictCollector, Nilgiris has acted arbitrarily in sealing their resortsafter rejecting the documents submitted by the appellant resortspurporting to show approvals and title. Similarly, it has beenalleged that the District Collector went beyond the scope of thisCourt’s order dated 24.12.2018 wherein immediate removal ofelectric fences and barbed wire was directed. It is the appellants’case that non-electric fences as well as fences beyond the notifiedelephant corridor area were removed by the District Collector.It is just and proper to hold an inquiry to establish the veracity of AB

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Athe above factual objections of the appellants. Therefore, a 3-member Inquiry Committee is appointed to decide the individualobjections of the appellants and any other persons claiming to beaggrieved by the actions of the District Collector, Nilgirispursuant to the impugned G.O. and as recorded before the Courtthrough her Plan of Action Report and her twin Action TakenBReports, as also the allegations regarding arbitrary variance inacreage of the elephant corridor under the impugned G.O. [Paras42, 43][296-E-H; 297-A-D]

T. N. Godavaraman Thirumulkpad v. Union of India(1997) 2 SCC 267 : [1996] 9 Suppl. SCR 982 – referredCto.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3438-3439 of 2020.

From the Judgment and Order dated 07.04.2011 of the High CourtEof Judicature at Madras in Writ Petition Nos. 10098 of 2008 and 23939of 2010.

With

Civil Appeal Nos. 3437, 3440, 3442-3443, 3444, 3445, 3447, 3448-3449, 3450-51, 3446, 3452, 3453, 3454, 3455, 3456, 3457, 3458, 3459,F3460, 3461, 3462, 3463, 3464, 3465, 3466, 3467, 3468, 3469, 3476, 3477,3470, 3471-3472, 3473, 3475, 3474 Of 2020.

Jayant Muthuraj, Sr. Adv. (AAG), Raju Ramachandran, Sr. Adv.,Rahul Shyam Bhandari, Senthil Jagadeesan, Sridhar Potaraju, Ms. ShiwaniTushir, Vishnu Tulashi Menon, Trideep Pais, Ms. Sanya Kumar, N.K.GVerma, Ms. Anjana Chandrashekar, Ms. Diksha Rai, P. Soma Sundaram,Naveen Kumar, Vikas Mehta, Zulfiker Ali P. S, V. Balachandran,Kaustubh Shukla, Abhay Singh, S. Ravi Shankar, Ms.Yamunah Nachair,Shashi Bhushan Kumar, Deepayan Mandal, Janmejay Giridhar, ShakilAhmed Syed, K. V. Mohan, K.V. Balakrishnan, M.F. Philip, Ms. Purnima H

Krishna, Sudarsh Menon, Mrs. Lalita Kaushik, Ms. N. Annapoorani,G. Balaji, M. Yogesh Kanna, Rajarajeswaran, Ms. Aparna Bhat, GurmeetSingh Makker, B. Balaji, B. Krishna Prasad, Vinodh Kanna B., K. V.Vijayakumar, P. A. Noor Muhamed, Annam D. N. Rao, B. KrishnaPrasad, Ms. Mayuri Raghuvanshi, Advs. for the appearing parties.

Caveator-in-person.

The Judgment of the Court was delivered by

S. ABDUL NAZEER, J.

1. Leave granted.

2. The appellants in these appeals have assailed the final judgmentand order dated 07.04.2011 of the High Court of Judicature at Madras,passed in Writ Petition (PIL) No. 10098 of 2008 along with severalother writ petitions including Review Application No. 131 of 2010 andWrit Petition No.23939 of 2010 filed by the Hospitality Association ofMudumalai. The High Court by the impugned judgment has upheld thevalidity of the Tamil Nadu Government Notification G.O.(Ms.) No.125,dated 31.08.2010 which had notified an ‘Elephant Corridor’ in the SigurPlateau of Nilgiris District and has further directed resort owners andother private land owners to vacate and hand over the vacant possessionof the lands falling within the notified elephant corridor to the DistrictCollector, Nilgiris within three months from the date of the judgment.

3. The appellant in Civil Appeal Nos._________2020 (arisingout of SLP (C) Nos.17313-17314 of 2011), is the Hospitality Associationof Mudumalai, registered under the Tamil Nadu Societies RegistrationAct, 1975, situated in the Nilgiris District of Tamil Nadu. The membersof this association have established resorts/guest houses in the Nilgirisforest area. The other appellants are either the owners of the resorts/guest houses or the owners of the lands in and around the Nilgiris forestarea. Some of them have built dwelling houses on their lands, some ofthem have encroached upon government lands and put up constructionsthereon and some of them are cultivating the said lands.

4. Before referring to the proceedings before the High Court andthis Court,as well as the submissions made by the learned counsel forthe parties, it would be helpful to refer to the background facts and theprevailing ecological context in which the impugned G.O. was notified.

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AA. BACKGROUND

5. Despite being a figure of traditional cultural reverence, todaythe elephant species is severally threatened in India. The crux of theproblem is one that affects all wildlife in the country: land. As India’shuman population has grown exponentially in the past several decades,Bso has its demand for resources. At its essence, that demand boils downto the requirement for more land – for agriculture to grow more foodand for construction of roads, dams, mines, railways and housing. Thisdemand for land has led to the degradation and fragmentation of thecountry’s forest cover. The elephant, being a large agrarian animal, mayweigh upto 4-5 tons and requires about 200-300 kgs. of fodder comprisingCof various plant species daily. It, therefore, needs large areas, which ituses by rotation, so that it may not overgraze an area and in the processdestruct it altogether. This allows the natural vegetation of the habitats achance to re-generate.

6. However, the ever-growing need for land, infrastructure andDenergy requirements of our large population have slowly fragmented theelephant’s natural spaces which are now surrounded by human habitation,agriculture, mining, roads and railways. The more forest habitat isfragmented, the farther an elephant herd has to roam in search of foodand water. Increasingly, elephants have to move farther and farther afield,Eeven from one forest area to another, often through small patches offorests called corridors. As forest lands continue to be lost, these relativelynarrow and linear patches of vegetation form vital natural habitat linkagesbetween larger forest patches. They allow elephants to move betweensecure habitats freely, without being disturbed by humans. Further,elephants are genetically programmed by nature to never inbreed withinFtheir birth family and thus need to move around between gene pools toreproduce. These corridors aid this process by helping different elephantpopulations to intermingle, which is essential for retaining the vigour ofthe species and ensuring its long-term survival. By identifying and nurturingsuch corridors, deadly confrontations between humans and elephantsGcan be avoided, in addition to safeguarding the welfare of the wildlife.Unfortunately, in most areas, the existing corridors are repeatedly beingdestroyed which will block migration routes of the elephants and wouldresult in the fragmentation of the habitats as well as increased human-elephant conflict.

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7. To prevent such conflict and protect elephants, the Governmentof India through the then Ministry of Environment and Forests launcheda centrally sponsored scheme ‘Project Elephant’ to provide financialand technical support to the wildlife management efforts by States fortheir free ranging populations of wild elephants. The ‘Project Elephant’document was released in the year 1993. It admits that elephants arefacing serious threat due to large scale destruction and fragmentation oftheir habitat due to increase in human and cattle populations, felling ofnatural forest and replacing them with single species, commercialplantation, excessive grazing, forest fires and shifting cultivation,destruction or capture for crop raiding, human killings, encroachmentsand man-made barriers/destructions such as roads, railway lines, dams,canals, tea gardens, agriculture and industry etc. The ‘Project Elephant’was to provide financial and technical support to major elephant bearingStates in the country. The project aims to ensure long term survival ofviable conservation reliant population of elephants in their natural habitatsby protecting the elephants, their habitats and migration corridors. Othergoals of the ‘Project Elephant’ are addressing issues of human-animalconflict and providing for welfare of captive elephants.The main activitiesunder this project include the following:

1. Ecological restoration of existing natural habitats and migratoryroutes of elephants;

2. Development of scientific management planning forconservation of elephant habitats and viable elephantpopulations in India;

3. Promotion of measures for mitigation of human-elephantconflict in crucial habitats;

4. Moderating impact of human and domestic livestock activitiesin crucial elephant habitats;

5. Strengthening of measures for protection of wild elephantsfrom poachers and unnatural causes of death;

6. Research on elephant management related issues;

7. Public conservation education and awareness programmesabout elephants;

8. Eco-development of elephant habitats; and A

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A9. Provision of improved veterinary care for elephants.

8. Specifically in the context of elephant preservation in TamilNadu, on 14.06.2006, the State’s Principal Chief Conservator of Forestsand Chief Wildlife Warden (‘PCCF’) had requested that the private/patta lands forming the traditional movement corridors of elephantsBbetween the Mudumalai Wildlife Sanctuary and National Park to otherparts and also between Eastern and Western Ghats be brought underthe control of the Forest Department, by acquiring the lands after payingcompensation to the owners. The PCCF had highlighted the use of thesepatches of private forest land, which serve as vital migratory routes, fornon-forestry use as a serious threat to free movement of elephants.TheCPCCF addressed another letter dated 6.11.2006 to the State Government,proposing the Survey Nos. of the patta land to be acquired for the purposeof the elephant corridors. Similarly, the Ministry of Environment andForests, Government of India, by its letter dated 11.08.2006 to the StateGovernment of Tamil Nadu had noted that 88 elephant corridors hadDbeen identified by the Wildlife Trust of India’s book titled “Right of Passage– Elephant Corridors of India” and requested that necessary action betaken for notification and protection of the elephant corridors situated inTamil Nadu, as identified in the aforesaid publication.

9. Pursuant to this communication, the Government of Tamil NaduEissued a Government Order dated 21.08.2007, appointing an ExploratoryCommittee with Collector of Nilgiris as the Chairman and four othermembers consisting of District Forest Officer, Nilgiris North Division,Wildlife Warden, Ooty, Officer of the Revenue Department, Ooty andthe concerned Tehsildar. This Committee was constituted for exploringthe possibility of acquiring the patta lands with the willingness of farmersFwho could spare their lands for acquisition for elephant corridors.

B. Proceedings before the Madras High Court

B. Proceedings before the Madras High Court

10. During this period, an organization called ‘In Defence ofEnvironment and Animals’, represented by its Managing TrusteeG‘Elephant’ G. Rajendran, filed Writ Petition No.10098 of 2008 before theMadras High Court seeking issuance of a Writ of Mandamus directingthe official respondents therein to keep the elephant corridors free fromencroachment and to prevent any other disturbances to the freemovement of elephants and other animals. It was the specific case ofthe petitioner therein that the elephant corridor was being disturbed byH

some encroachers and builders. Due to mushrooming of resorts, elephantcorridors were either closed or becoming narrow. It was further contendedthat the Forest Department had not taken any stringent action to evictthe encroachers from the elephant corridor. On 02.02.2009, the HighCourt passed an interim direction to the District Collector, Nilgiris to filea status report showing the steps taken to remove the encroachers fromthe lands falling under the elephant corridor.

11. Certain other writ petitions were filed by the Schedule Tribesand other Traditional Forest Dwellers contending that they were notencroachers and that they had a right to occupy the land in questionunder the Schedule Tribes and Other Traditional Forest Dwellers(Recognition of Forest Rights) Act, 2006. It was further contended thaton the strength of the order dated 02.02.2009 in Writ Petition No.10098of 2008, the District Collector had directed them to stop the cultivationof these lands and that they were being prevented from collection ofminor forest produce and grazing their cattle. These writ petitions wereclubbed together for hearing before the Madras High Court.

12. At this stage, Hospitality Association of Mudumalai, theappellant herein, filed an impleadment application in the said case. Itwas contended that this association consisted of residents of the MasingudiBokkapuram area and that they had been providing hospitality servicesto tourists who visit the area to see the wildlife and that there was amisguided sense of hostility towards the people who own and run guesthouses in this area from the authorities and self-proclaimedenvironmentalists dwelling outside the area. It was also contended thatthe members of the said association had been living in the said area formore than 50-60 years and that there had been virtually no human-animalconflict in the area since there is little to no agriculture and the elephantscan freely move around throughout the area.

13. During the course of hearing, the District Forest Officer ofNilgiris North Division made a presentation before the High Court tohighlight the importance of the forests and corridors in the region. TheDistrict Collector, Nilgiris also appeared before the High Court and showedcertain slides on his computer depicting a map of the corridor of elephants.He stated that to allow the elephants to pass through the corridor, theunauthorized occupants hadto be evicted. Similarly, the State’s PCCFalso made submissions before the High Court to highlight the necessityof preservation of the elephant corridor by acquisition of patta lands.

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AConsidering the rival contentions of the parties, on 30.09.2008, the HighCourt issued the following directions:

“(i)forest department, which has the knowledge ofmovement of elephant in the corridor, may identify andinform the same; B

(ii) the State Government may publish the informationregarding the elephant corridor and the area, in leadingnewspapers and also by drum beating/tom tom, callingfor objections of locals, if any, in the area in question;

(iii) after hearing the locals, particularly those who may beCaffected, they may finalize the elephant corridor fromwhich unauthorized occupants are to be evicted;

(iv) to ensure that schedule tribes and other foresttraditional dwellers are not affected, it is required toidentify the other traditional forest dwellers in termsDwith Schedule Tribes and other Traditional ForestDwellers (Recognition of Forest Tribes) Rules, 2007;

(v) only after the recommendation and recording their namesin the appropriate register, they may proceed witheviction, by giving notice in the newspaper, by drumEbeating/tom tom and by giving individual notice to theunauthorised occupants.

(vi) So far as the acquisition of the land is concerned, ifany private land is required to be acquired, they willhave to follow the procedure under the Land AcquisitionFAct. Prima facie, as the tribals and other forest dwellerscannot be evicted from the unauthorized lands, theirlands need not required to be acquired, if it is a forestland. Learned counsel for the parties are requested togive further suggestion in the matter, in the interest ofpublic and elephants.”G

14. Since there was opposition to the map prepared by the DistrictCollector by the contesting parties, the Court felt it necessary that ateam of experts of the Environment and Forest Department be constitutedto identify the elephant corridor and submit a report after taking intoconsideration different books published with regard to elephant corridors.H

15. In pursuance of the directions of the High Court, an ExpertCommittee was constituted by the Government. The Expert Committeevisited the elephant corridor area in the Nilgiris twice, enquired with thefield officers and tribals of the area and obtained opinions from expertsbefore submitting its report on 04.11.2009. A map of the elephant corridorin the Sigur Plateau in Nilgiris region was also filed by the said expertCommittee before the High Court. Noting that the State Governmentwas responsible for notifying elephant corridors within its territory, theHigh Court on 01.12.2009 directed the State Government to choose oneof the maps for the elephant corridor out of either the one identified bythe Expert Committee or the one identified by the Wildlife Trust of India’spublication “Right of Passage – Elephant Corridors of India”, whichwas referred to in the Central Government’s abovementioned letter dated11.08.2006. This order also directed the State Government to file anaffidavit disclosing the actions it intends to take against resort ownersand residents of the elephant corridor. In accordance with the High Court’sdirections,the State Government came forward with a decision that itwill ensure that no illegal construction takes place in the area shown as‘elephant corridor’ in the report of the Expert Committee and that noperson will be allowed to put up fresh solar/electrical fencing within theproposed area of the elephant corridor. Taking into account the materialson record, the High Court passed a fresh order dated 03.12.2009 asunder:

“(i)The State Government will have to decide as to whichElephant Corridor has to be identified, i.e. corridoridentified by the Central Government in the letter dated11.08.2006, with the help of the State Forest Departmentand NGOs, or the proposed Elephant Corridor asidentified by the Expert Committee in the present cases,preferably within one month.

(ii) Thepublication of such map showing the ElephantCorridor, should be made by the State through the ForestDepartment, in two local newspapers, one in Englishand another in vernacular Tamil, giving the details ofSurvey Numbers of private lands which are fallingwithin the proposed Elephant Corridor. The persons maybe asked to submit their objections within a time frame,say one month.

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A(iii)The intimation of such proposed Elephant Corridoralong with a copy of the report of the Expert Committee,should be also forwarded to each local Panchayats,which fall within the proposed Elephant Corridor, sothat the local persons can have the knowledge of thecorridor of their own, if they so choose.B

(iv) No separate individual hearing is required to be givento any person, though a mass hearing may be given asgenerally given in the “Land Acquisition” cases andon hearing such objections, the proposed ElephantCorridor including the map containing the differentCSurvey Numbers should be finalized and be alsopublished at an early date, say maximum within sixmonths.

(v) No individual or any Association generally shouldintervene in the case. If they have any objection, theyDmay raise before the authorities concerned.

23. On such finalization, it will be open for the State to decide:

(a) Whether the private lands which are falling within theElephant Corridor, do not belong to Schedule Tribe andEother traditional forest dwellers, who have a right underthe provisions of the Schedule Tribes and otherTraditional Forest Dwellers (Recognition of ForestRights) Act, 2006, and whether such lands should beacquired. If the decision is taken to acquire the lands,they will follow the regular procedures as laid downFunder the provisions of the Land Acquisition Act.

(b) If the State Government, in the meantime, wants to takeover the management of the private forest, it may do soin terms of Section 3 of the Tamil Nadu Private Forest(Assumption of Management) Act (LV of 1961), so as toGenable the elephants to pass through the corridorwithout any hindrance till the lands are acquired.”

16. Here, it may be noted that the aforesaid order of 03.12.2009passed by the High Court was challenged before this Court throughSpecial Leave Petition (Civil) Nos. 14416–14422 of 2010 which wasHdisposed vide order dated 30.04.2010 in the following terms:

“Permission to file special leave petitions is granted.

Delay condoned.

Heard learned counsel for the petitioner and learned counselfor respondent no.1.

The learned counsel for the petitioner contends that ifproposed Elephant Corridors established, the petitioner wouldbe seriously effected as his land falls in that area.

The petitioner would be at liberty to approach the Committeewhich is likely to finalize the Elephant Corridors and alsowould be at liberty to approach the High Court and seekintervention proceedings though the division Bench hasalready indicated under other proceeding that no interventionis allowed.

With the above directions, the special leave petitions aredisposed of.”

17. In pursuance of the directions of the High Court, the StateForest Department issued a public notice dated 07.01.2010, therebypublishing a proposed elephant corridor, as identified by the ExpertCommittee, and requiring the persons whose private lands are fallingwithin the proposed corridor to submit objections. Public hearings werealso held by the authorities concerned and the objections raised by variouspersons were rejected. Thereafter, the State Government issued theimpugned G.O., thereby confirming the elephant corridor map as publishedon 07.01.2010 and also specifying the boundaries of the elephant corridorand the Survey Nos. falling within the said corridor.

18. Several writ petitions were filed before the High Courtchallenging the impugned G.O. These were clubbed with the other pendingwrit petitions and PIL and came to be decided by the High Court’simpugned order dated 07.04.2011.

19. The High Court rejected the appellant’s contentions regardingthe propriety of constitution of the Expert Committee given that the Wildlife(Protection) Act, 1972(‘Wildlife Act’) does not envisage the same andrather provides for constitution of State and National Boards for Wildlife.It was held that the Expert Committee’s mandate did not impinge uponthat of the Boards under the Wildlife Act. The High Court also did notfind merit in the appellant’s contention that the State Government lacked A

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Athe power to notify an elephant corridor. For this, the High Court reliedupon Entries 17A ‘Forest’ and 17B ‘Protection of wild animals and birds’in the concurrent list and the power of the State Government to notifySanctuaries, National Parks, Conservation Reserves and CommunityReserves under Chapter IV of the Wildlife Act.B20. Before the High Court, the appellant had also contended thatthe impugned G.O. sought to create an “artificial corridor” in an areathrough which elephants do not traditionally pass. In rejecting thiscontention, the High Court held that the material on record clinchinglyshowed that the animals were already moving through the said area.TheHigh Court observed that the appellant and others have constructedCholiday resorts and are carrying on commercial activities in the areadespite only holding permissions for construction of dwelling houses.The mushrooming of such resorts, which were bounded by electric fencingand barbed wires, had severally restricted the movement of elephantsand caused an increase in incidents of human-elephant conflict.DAccordingly, the High Court passed the following directions which areunder challenge before us:

“The resort owners and other private land owners are directedto vacate and hand over the vacant possession of the landsfalling within the notified ‘elephant corridor’ to the DistrictECollector, Nilgiris within three months from today. In themeanwhile, the Government of Tamil Nadu is permitted to goon with the implementation of the project as has been notifiedin G.O.M.s. No. 125, dated 31.08.2010, in the best interest ofthe wildlife, particularly elephants so as to notify and improvethe elephant corridor.”F

21. The High Court also directed the State to strictly adhere withthe provisions of the Scheduled Tribes and Other Traditional ForestDwellers (Recognition of Forest Rights) Act, 2006 and in case any forestdwellers are evicted from the elephant corridor, they be provided alternateaccommodation or compensation as per the procedure contemplatedGunder law.

22. A Review Application No. 157 of 2011 was filed against theabove decision of the High Court. The same was dismissed by the HighCourt vide its order dated 16.11.2011 on the ground that the impugnedjudgement was a reasoned order which did not suffer from any errorHapparent on the face of the record.

C. Proceedings before this Court

23. During the pendency of the present appeals, this Court wasinformed that large scale construction was underway in the elephantcorridor in Tamil Nadu. In its order dated 12.07.2018, this Court hadmade it clear that no construction is allowed in the elephant corridor inTamil Nadu and directed District Collector, Nilgiris to prepare and presenta plan of action on how to identify the constructions that have beenmade, when they have been made and for what purpose the constructionsare being utilized. This plan of action was to be with respect to theelephant corridors as mentioned in the Report of the Elephant Task Forcetitled “Gajah” as well as the elephant corridor as notified by the impugnedG.O.

24. In compliance with this order, the District Collector, Nilgirisfiled a Plan of Acton Report which identified the following constructionsin the elephant corridor areas:

Sl. No.Nature of the constructionTotal number of constructions01. Total No. of Buildings within Resort Complexes (numbering 309 39)02.Houses39003. Other Common Buildings (Schools, Water Tank, Community 27 Halls, Temple, Public Toilet etc.)04.No.of Estates/Plantations905.No.of Cultivation Fields7706. Other Constructions 9 Total821

Specifically in respect of the resorts, the District Collectorsubmitted that all 39 of them were operating illegally as 27 of them hadobtained approvals only for residential purpose whereas 12 of them hadnot obtained any approval at all.

25. At the next hearing on 09.08.2018, this Court noted that onlyadvocates on behalf 12 out of the 39 resorts were present before theCourt and thus deemed that the remaining 27 resorts had accepted theCollector’s above-mentioned report. Accordingly, this Court directed thatthese 27 resorts be closed down/sealed by the Collector and granted 48hours to the other 12 resorts to produce documents showing approvalsand title for running of their resorts before the Collector. If the Collectorwere to find the documentation incomplete, she was directed toimmediately close down/seal the premises. Further, the non-resortdwellers who were identified by the Collector’s report to be occupying A

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Aland in the corridor area, were granted a period of 2 months to producenecessary documents for verification before the Collector.

26. Thereafter, the District Collector, Nilgiris filed an Action TakenReport dated 23.10.2018 stating that 27 resorts had been sealed as perthis Court’s above direction and documents were received from the otherB12 resorts. The Collector submitted that out of these 12 resorts, only 1resort owner could show proof of use of his premises for residentialpurpose while the remaining 11 resort owners did not have validdocuments. Accordingly, these 11 resorts were also sealed by theCollector in accordance with the above order of this Court. In this Report,the Collector additionally highlighted that the Forest Department hadCdirected the sealed resorts to remove solar, electric and barbed wirefences erected around their premises as the same hinder the freemovement of elephants in the corridor. However, only a few of the resortowners had complied with the Forest Department’s directive. In thisconnection, on 24.10.2018, this Court directed that electric fences andDbarbed wire, wherever installed by there sort owners, should be removedimmediately. The District Collector, Nilgiris filed another Action TakenReport dated 29.11.2018 reporting that she had ensured removal ofelectric fences and barbed wire from the premises of the aforesaid resortsin the corridor area.

E27. During this time, in addition to the 12 resorts which wereinitially represented before this Court, several other owners of resorts/guest houses as well as the owners of cultivated lands, dwelling housesand other constructions in and around the elephant corridor area havesought to be impleaded before us, being aggrieved by the actions of theDistrict Collector, Nilgiris and also the impugned High Court decision.F

D. Contentions of the Parties

28. Appearing for the appellants, Shri Salman Khurshid, learnedSenior Counsel argues that the appellants’ lands do not fall within anelephant corridor and that the area notified under the impugned G.O.Gdoes not fall within any scientifically recognized elephant corridor andseeks to cover areas which are not traversed by elephants. It is furthercontended that the identification of elephant corridors is a scientific processand that the impugned G.O., which was issued in pursuance of therecommendations of the Expert Committee appointed by the High Court,was erroneous and untenable in law. The resort owners claim that they H

run small resorts which are compatible with the environment and areessentially for tourists who want to be close to nature and wildlife. It isalso asserted that these resorts help tourists acquire sensitivity towardsanimals and the environment, while preventing any exploitation or damageby their presence. Some of the other appellants have also contendedthat their lands do not fall within the elephant corridor from which theremoval of encroachment was sought.

29. It is further argued that the areas which have been notified aselephant corridor by the State Government through the impugned G.O.,are in variance with all authoritative studies on historic elephant corridorsin Sigur Plateau from 1972 till date. It is also submitted that there is avariance in acreage between the recommendations of the ExpertCommittee formed by the High Court and the impugned G.O. issued bythe State Government. It is contended that the unilateral addition anddeletion of private/Government lands in the said G.O. is arbitrary andillegal. The expansion of the corridor areas under the G.O. amounts tocreation of a new elephant corridor which does not presently exist andthe same is unlawful.

30. Learned counsel for some of the other appellants have madesimilar submissions. It was argued that the lands of the appellants do notfall within the elephant corridor. It was also argued that the Plan ofAction Report filed by the District Collector, Nilgiris before this Court isclearly fallacious and the actions of the District Collector in pursuancethereof are illegal. Some of the appellants have further alleged that theDistrict Collector, Nilgiris has illegally removed fencing fromestablishments outside the notified elephant corridor area as well.

31. On the other hand, learned advocate appearing for thecontesting respondents, has sought to justify the impugned judgment ofthe High Court, so also the Plan of Action Report and Action TakenReports filed by the District Collector, Nilgiris.

32. Learned advocate appearing as Amicus Curiaehas supportedthe submissions of the contesting respondents and the Reports submittedby the District Collector, Nilgiris.

E. Our Analysis

33. We have carefully considered the submissions of the learnedcounsel made at the Bar and perused the materials on record.

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A34. At the very outset, it must be noted that the Wildlife Trust ofIndia terms elephants as a “keystone species” because their nomadicbehavior is immensely important to the environment. Herds of roamingelephants play several important roles in the ecosystem:

(i) Landscape architects: Elephants create clearings in the forestBas they move about, preventing the overgrowth of certainplant species and allowing space for the regeneration of others,which in turn provide sustenance to other herbivorous animals.

(ii) Seed dispersal: Elephants eat plants, fruits and seeds, releasingthe seeds when they defecate in other places as they travel.CThis allows for the distribution of various plant species, whichbenefits biodiversity.

(iii) Nutrition: Elephant dung provides nourishment to plants andanimals and acts as a breeding ground for insects.

(iv) Food chain: Apex predators like tigers will sometimes huntDyoung elephants. Further, elephant carcasses provide foodfor other animals.

(v) The umbrella effect: By preserving a large area for elephantsto roam freely, one provides a suitable habitat for many otheranimal and plant species of an ecosystem.E

Elephant corridors allow elephants to continue their nomadic modeof survival, despite shrinking forest cover, by facilitating travel betweendistinct forest habitats. Corridors are narrow and linear patches of forestwhich establish and facilitate connectivity across habitats. In the contextof today’s world, where habitat fragmentation has become increasinglyFcommon, these corridors play a crucial role in sustaining wildlife byreducing the impact of habitat isolations. In their absence, elephantswould be unable to move freely, which would in turn affect many otheranimal species and the ecosystem balance of several wild habitats wouldbe unalterably upset. It would also eventually lead to the local extinctionof elephants, a species which is widely revered in our country and acrossGthe world.To secure wild elephants’ future, it is essential that we ensuretheir uninterrupted movement between different forest habitats. For this,elephant corridors must be protected.

35. Legal intervention in preservation of these corridors has beennecessitated because wildlife corridors are threatened by various social,H

economic and anthropogenic factors, as noted above. Commercialactivities such as running of private resorts and construction of newbuildings with barbed and electric fences within elephant corridors posea serious threat of fragmentation and destruction of habitats.The long-term survival of the species depends on maintaining viable habitats andconnecting corridors which maintain variance in the species’ gene pooland avoid other risks associated with habitat fragmentation and isolationof species.

36. Overtime, several environmental legislations including the IndianForest Act, 1927 and the Wildlife Act have been enacted to provide forthe protection of forests and wild animals, with a view to ensuringecological balance and preserving natural habitats including such corridors.The object of the Wildlife Act was interpreted emphatically by this Courtin State of Bihar v. Murad Ali Khan[1] in the following terms:

“8. … The policy and object of the Wild Life laws have a longhistory and are the result of an increasing awareness of thecompelling need to restore the serious ecological-imbalancesintroduced by the depredations inflicted on nature by man.The state to which the ecological imbalances and theconsequent environmental damage have reached is soalarming that unless immediate, determined and effective stepswere taken, the damage might become irreversible. Thepreservation of the fauna and flora some species of whichare getting extinct at an alarming rate, has been a great andurgent necessity for the survival of humanity and these lawsreflect a last-ditch battle for the restoration, in part at least, agrave situation emerging from a long history of callousinsensitiveness to the enormity of the risks to mankind thatgo with the deterioration of environment.

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10. … Environmentalists’ conception of the ecological balancein nature is based on the fundamental concept that nature is“a series of complex biotic communities of which a man is aninter-dependant part” and that it should not be given to apart to trespass and diminish the whole. The largest singlefactor in the depletion of the wealth of animal life in nature A

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Ahas been the “civilized man” operating directly throughexcessive commercial hunting or. more disastrously, indirectlythrough invading or destroying natural habitats.”

37. Specifically in issue before us, is the corridor in the SigurPlateau of Tamil Nadu. It connects the Western and the Eastern GhatsBand sustains elephant populations and their genetic diversity. The SigurPlateau has the Nilgiri Hills on its south-western side and the MoyarRiver Valley on its north-eastern side. Depending on the monsoon, theelephants migrate in search of food and water and during the course oftheir migration, they have to cross the Sigur Plateau. This migratorypath is considered to be very crucial as it connects several contiguousCforest areas forming the Nilgiri Biosphere Reserve in the states of TamilNadu, Karnataka and Kerala, the largest protected forest area in India.

38. Conflicting maps of this corridor were presented before theMadras High Court, which thus directed the State Government to choosebetween: (i) the elephant corridors identified in the Wildlife Trust of India’sDbook titled “Right of Passage – Elephant Corridors of India” which werereferred to by the Central Government in its letter dated 11.08.2006 tothe State Government; or (ii) the single elephant corridor identified bythe Expert Committee appointed by the High Court. As per the aforesaidbook titled “Right of Passage”, the following 4 corridors lie in the SigurEPlateau region: (i) Avarahalla – Sigur, (ii) Kalhatti – Sigur at Glencorin,(iii) Moyar – Avarahalla and (iv) Kalmalai – Singara and Avarahalla.The Expert Committee examined all the elephant corridors in the areaand identified a single elephant corridor comprising of various elephantcorridors in the Sigur Plateau region.The State Government, vide theimpugned G.O., notified this single elephant corridor, along the lines ofFthe recommendations made by the Expert Committee.

39. The first limb of the appellants’ contentions before us is thatthere is no statutory power for creating/recognition of new corridors bythe State Government. We do not find merit in this argument and, inprinciple, are in agreement with the findings of the High Court regardingGthe power of the State Government to take measures, including issuanceof the impugned G.O., for protection of wildlife in Tamil Nadu. It isundeniable that the State Government is empowered to take measuresto protect forests and wildlife falling within its territory in light of Entries17A ‘Forest’ and 17B ‘Protection of wild animals and birds’ in theHconcurrent list and the power of the State Government under the Wildlife Actto notify Sanctuaries and other protected areas. It is an admittedposition that the land of the appellants has also been notified as privateforest in 1991 under the Tamil Nadu Preservation of Private ForestsAct, 1949, which prohibits cutting of trees in private forests. Our attentionhas also been drawn to the decision of this Court in T.N. GodavaramanThirumulkpad v. Union of India[2 ]wherein felling of trees in the stateof Tamil Nadu was prohibited in all forests, including forests situated inprivately owned lands. The contesting respondents have argued that theconstruction of the appellants’ resorts must have necessarily run afoulof the above decision of this Court. Without commenting on the factualaccuracy of this assertion, given that the classification of the appellants’land as private forest land is not in dispute here, we find no difficulty inholding that the State Government was empowered to protect the habitatssituated on the appellants’ land by notifying an elephant corridorthereupon.

40. Furthermore, since the impugned decision of the High Court,the Ministry of Environment, Forest and Climate Change vide itsNotification S.O. 4498(E) dated 13.12.2019 has declared the entire areain question and adjoining areas around the Mudumalai Tiger Reserve asan Eco-Sensitive Zone. Under this Notification, the State Governmentof Tamil Nadu has been expressly directed to regulate land use generally,as well commercial establishment of hotels/resorts specifically, in theEco-Sensitive Zone so established. As was held by this Court in M.C.Mehta v. Union of India and Ors.[3] the “Precautionary Principle” hasbeen accepted as a part of the law of our land. Articles 21, 47, 48A and51A(g) of the Constitution of India give a clear mandate to the State toprotect and improve the environment and to safeguard the forests andwild life of the country. It is the duty of every citizen of India to protectand improve the natural environment including forestsand wild life andto have compassion for living creatures. The PrecautionaryPrinciplemakes it mandatory for the State Government to anticipate,prevent and attack the causes of environmental degradation. In this light,we have no hesitation in holding that in order to protect the elephantpopulation in the Sigur Plateau region, it was necessary and appropriatefor the State Government to limit commercial activity in the areas fallingwithin the elephant corridor.

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A41. The second limb of the appellants’ submissions comprises ofquestions about the scientific accuracy of the Expert Committee’s Reportand contentions that the dimensions as well as the location of the singlecorridor identified therein are at odds with authoritative scientificpublications. It has been argued by the appellants that their resorts andother establishments do not fall within the historic corridors identified inBthese publications. These assertions were dealt with by the High Courtwhich held that there was material on record to show presence ofelephants as well as a past incident of human-elephant conflict, whichresulted in the death of a French tourist, in the region where the appellants’resorts are located. The High Court also held that any absence ofCelephants from the areas surrounding the appellants’ resorts was, in fact,due to the construction activities of the appellants whereby access ofthe elephants has been restricted through erection of electric fencing.We see no reason to interfere with the above factual findings of theHigh Court and also do not find fault in the State Government’s adoptionof the recommendations of the High Court-appointed Expert Committee,Dthrough the impugned G.O.

42. This brings us to the last limb of the submissions of theappellants, which is comprised of factual objections to the acreage ofthe elephant corridor as notified by the impugned G.O. and the actionstaken by the District Collector, Nilgiris in pursuance thereof. TheEappellants have contended that there has been substantial variancebetween the acreage recommended for acquisition by the ExpertCommittee Report and the acreage in the impugned G.O. It is furtheralleged that the acreage in the newspaper advertisement by the StateGovernment inviting objections to notification of the corridor is also

Fdifferent from the acreage in the impugned G.O. As all the objectionsreceived pursuant to the said newspaper advertisement were rejectedby the State Government and since the impugned G.O. purported toadopt the recommendations of the Expert Committee, the appellantsallege that the said variance in acreage is arbitrary and unreasonable. Ithas also been alleged that the District Collector, Nilgiris has actedGarbitrarily in sealing their resorts after rejecting the documents submittedby the appellant resorts purporting to show approvals and title. Similarly,it has been alleged that the District Collector went beyond the scope ofthis Court’s order dated 24.12.2018 wherein immediate removal of electricfences and barbed wire was directed. It is the appellants’ case that non-Helectric fences as well as fences beyond the notified elephant corridor area were removed by the District Collector. We are of the view that itis just and proper to hold an inquiry to establish the veracity of the abovefactual objections of the appellants.

43. Therefore, we appoint a 3-member Inquiry Committeeconsisting of: (i) Hon’ble Mr. Justice K. Venkatraman, Former Judge ofthe Madras High Court (Chairman); (ii) Mr. Ajay Desai, Consultant toWorld Wide Fund for Nature-India and Member of the TechnicalCommittee to come up with a National Elephant Action Plan (NEAP),constituted by the Union Ministry of Environment, Forest and ClimateChange (MOEF&CC); and (iii) Mr. Praveen Bhargava, Trustee ofWildlife First and Former Member of National Board for Wildlife todecide the individual objections of the appellants and any other personsclaiming to be aggrieved by the actions of the District Collector, Nilgirispursuant to the impugned G.O. and as recorded before us through herPlan of Action Report and her twin Action Taken Reports, as also theallegations regarding arbitrary variance in acreage of the elephant corridorunder the impugned G.O. The State Government is directed to consultthe Chairman of the Inquiry Committee and pay remuneration to himand the other Members of the Inquiry Committee. Further, we direct theState Government to provide appropriate secretarial assistance andlogistical support to the Inquiry Committee for holding the inquiry withinfour weeks from today.

44. We leave it to the discretion of the Inquiry Committee to decidethe location for its inquiry proceedings. We also authorize the InquiryCommittee to appoint requisite staff on temporary basis to assist theCommittee in the inquiry and to fix their salaries. The State Governmentis directed to pay their salaries. The State Government and the districtlevel authorities are directed to provide their full cooperation and produceany and all files/documents required by the Inquiry Committee to addressthe grievances of the appellants and any other persons claiming to besimilarly aggrieved. The appellants and other persons claiming to beaggrieved by the plan of action/actions of the District Collector, Nilgirispursuant to the impugned G.O. and the allegations regarding variance inacreage under the impugned G.O, are permitted to file objectionscontaining their grievances before the Inquiry Committee within a periodof four months from today.The Inquiry Committee is directed to considerthe objections filed before it and pass appropriate orders thereon aftergranting the parties a reasonable opportunity of being heard. The parties AB

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Aare also permitted to file documents in support of their respectivecontentions before the Inquiry Committee.

45. The present appeals are disposed of in the aforesaid terms,leavingthe parties to bear their own costs. All pending applications shallstand disposed of.

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Divya Pandey

Appeals disposed of.

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