IN RE: T.N. GODAVARMAN THIRUMULPAD versus UNION OF INDIA AND OTHERS on 26 April 2023

[2023] 6 S.C.R. 601

IN RE: T.N. GODAVARMAN THIRUMULPAD

v.

UNION OF INDIA AND OTHERS

(I.A. Nos. 131377, 147102, 195467, 195468, 205092 of 2022 & Ors)

In

(Writ Petition (Civil) No. 202 of 1995)

APRIL 26, 2023

[B. R. GAVAI, VIKRAM NATH AND SANJAY KAROL, JJ.]

Environment (Protection) Act, 1986 – Environment (Protection)Rules, 1986 – r. 5 – Eco-sensitive zone (ESZ) – Protection of forestland – Issuance of directions by this Court, by order dated03.06.2022 that each protected forests-national park or wildlifesanctuary, to have an ESZ of minimum one kilometre measured fromthe demarcated boundary of such protected forest, wherein theactivities proscribed and prescribed in the Guidelines of 9.2.2011shall be strictly adhered to; that with respect to the activities thatwere already being undertaken within the one kilometre or extendedbuffer zone-ESZ and which was not prohibited under the ESZGuidelines, such activities to continue with the permission of thePrincipal Chief Conservator of Forests of each State or UnionTerritory; and no new permanent structures permitted to come upwithin the ESZ – Modification/clarification of the directions sought–Held: Direction in paragraph 56.1 of the order dated 03.06.2022is modified and clarified – Area to be declared as ESZ cannot beuniform and will be Protected Area specific – In some cases, it maybe 10 kilometres on one side and 500 meters on the other side – Assuch, the direction which prescribes a uniform one kilometre ESZ tobe modified – Mining activities within an area of one kilometre ofthe boundary of the Protected Areas would be hazardous for thewildlife, such directions to be issued on Pan-India basis –Furthermore, the directions contained therein would not beapplicable to the ESZs in respect of which a draft and finalnotification has been issued by the MoEF & CC and in respect ofthe proposals which have been received – Also the directioncontained therein would not be applicable where the National Parksand Sanctuaries are located on inter-State borders and/or share

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Acommon boundaries – Directions contained in paragraph 56.5 aremodified and replaced that MoEF & CC and all State/Union Territoryto strictly follow the provisions in the Guidelines of 9.02.2011 andso also the provisions contained in the ESZs notifications; and thatwhile granting Environmental and Forest Clearances for projectactivities in ESZ and other areas outside the Protected Areas, theBUnion of India as well as various State/Union Territory Governmentsto strictly follow the provisions contained in the OM dated17.05.2022 issued by MoEF & CC – Environmental laws.

Disposing of the I.As, the Court

CHELD: 1.1 If the direction as issued by this Court inparagraph 56.5 of the order dated 3rd June 2022 is continued,then no permanent structure would be permitted to come up forwhatsoever purpose in the Eco-sensitive zones-ESZs. Hundredsof villages are situated within the ESZs in the country. If nopermanent construction is to be permitted for any purpose, aDvillager who is desirous to reconstruct his house would not bepermitted. Similarly, if there is an extension in their family andsome additional construction is required for accommodating theenlarged family, the same would also not be permitted. Similarly,if the Government decides to construct schools, dispensaries,Eanganwadis, village stores, water tanks and other basic structuresfor improvement of the life of the villagers, the same would alsonot be permitted. The effect of the order would be to prevent theState or the Central Government from constructing roads andprovide other facilities to the villagers. [Para 48][629-C-E]

F1.2 If the order dated 3rd June 2022 is not modified, itwould also be impossible for the Forest Departments to conducteco-development activities around National Parks andSanctuaries. The said activities are required with the dualobjectives of protection of wildlife and provision of benefits forthe local communities. MoEF & CC provides financial assistanceGto the States under the Centrally Sponsored Scheme-IntegratedDevelopment of Wildlife Habitats, which includes assistance foreco-development activities. These activities often involveconstruction of small structures which are permanent in naturein areas including ESZs. [Para 49][629-E-G]

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1.3 There are various regulated and permissible activities.There are also certain projects of national and strategicimportance such as construction of National Highways, Railways,Defence related infrastructure etc. The effect of the direction in56.5 of the order dated 3rd June 2022 is that all such activitieswould be permanently prohibited. In this respect, it is to be notedthat MoEF & CC has issued an Office Memorandum dated 17thMay 2022 which required that any activity listed in Schedule ofthe EIA Notification 2006, when conducted in a notified ESZs, orin the case of National Parks and Sanctuaries for which no ESZhas been finally notified, when conducted within 10 kilometres ofsuch National Park or Sanctuary, requires the consideration andrecommendation of the NBWL or its Standing Committee inaddition to the Environment Clearance under the Environment(Protection) Act, 1986. Additionally, activities which are regulatedas per the specific ESZ notification, require approval as per thatnotification. As such, there are inbuilt safeguards for preventingrampant construction and abuse of process which may bedetrimental to the development and maintenance of wildlifehabitats. If the direction as contained in paragraph 56.5 of theorder dated 3rd June 2022 that even for continuation of existingactivities, the permission of the PCCF of each State or UnionTerritory would be necessary, remains unmodified, taking intoconsideration that in each State or Union Territory there wouldbe hundreds of villages wherein millions of people would beresiding, the PCCF would be left with no other job except toconsider such applications for permission to continue suchactivities. Even a farmer desirous to continue farming activitieswould be required to seek such permission. Such a direction isimpossible to be implemented. [Para 50][630-B-G]

1.4 If such a direction is continued, rather than avoidingman-animal conflict, it would intensify the same. As observed inthe said guilelines, the requirement of declaring ESZs is not tohamper day to day activities of the citizens but is meant to protectthe precious forests/Protected Areas from any negative impact,and to refine the environment around the Protected Areas. [Para51][630-G-H]

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A1.5 The necessity to have ESZs is to provide a buffer zonearound the Protected Areas. The rights of the villagers residingin the Protected Areas are required to be settled in accordancewith the provisions contained in the Wild Life (Protection) Act,1972 and such villagers are rehabilitated outside the ProtectedAreas. However, no such settlement of rights is available to theBvillagers residing in the ESZs areas. As stated in the saidGuidelines, the purpose of declaring ESZs is not to hamper theday to day activities of the citizens. If the direction as issued iscontinued, it would certainly hamper the day to day activities ofthe citizens residing in ESZs. As such, the said direction needsCto be modified. [Para 52][631-A-C]

1.6 Insofar as direction in paragraph 56.1 of the order dated3 rd June 2022 is concerned, a perusal of various orders wouldreveal that this Court has not directed any minimum area fromthe demarcated boundary of such Protected Areas. The area toDbe declared as ESZ cannot be uniform and would be ProtectedArea specific. In some cases, it may be 10 kilometres on oneside and 500 meters on the other side. In certain cases, it maynot be possible to have a uniform minimum area by virtue of inter-state boundaries or a sea or a river beyond one side of theProtected Area. In any case, a detailed procedure is required toEbe followed as prescribed under Rule 5 of the 1986 Rules. Oncesuch a notification is issued after following the procedureprescribed under the Environment (Protection) Rules 1986, theESZs would have to be as per the said notification. [Para 55][631-D-F]F

1.7 As required under sub-rule (3) of Rule 5 of the 1986Rules, before any final notification is issued, a draft notification isrequired to be published in the Official Gazette and in such othermanner as the Central Government may deem necessary fromtime to time. Any person interested in filing any objection to suchGa draft notification is entitled to file objection within a period of60 days from the date of publication of the draft notification in theOfficial Gazette. The Central Government can be directed to givea wide publicity to the draft notification so that all personsinterested have knowledge about issuance of such draftnotification. [Para 56][631-G-H; 632-A]H

1.8 After following the said procedure, the matter is placedbefore the Expert Committee consisting of 13 organizationshaving expertise in the relative field. As such, before an ESZarea is specified, various factors are taken into consideration.There are various factors which would determine the ESZs for aparticular Protected Area. The circumstances may differ from oneProtected Area to another Protected Area. As such, the directionwhich prescribes a uniform one kilometre ESZ requires to bemodified. [Para 57][632-B-C]

1.9 On the date of filing of the present application, finalnotifications have been issued in respect of 474 Protected Areaswhereas draft notifications have been issued in respect of 102Protected Areas. 73 proposals are pending. This Court hasalready found the said Guidelines to be reasonable and hasaccepted the same. The Court has also accepted the view of theStanding Committee of the NBWL that uniform guidelines maynot be possible in respect of each Sanctuary or National Park formaintaining ESZs. Though the Court has observed that aminimum width of one kilometre in ESZ ought to be maintained,in paragraph 56.6 of the order dated 3rd June 2022 itself, it hasobserved that minimum width of the ESZ may be diluted inoverwhelming public interest but for that purpose the State orUnion Territory concerned is required to approach CentralEmpowered Committee (CEC) and MoEF & CC. Both thesebodies shall give their respective recommendations before thisCourt and on that basis, the Court should pass appropriate order.[Para 58][632-C-F]

1.10 The ESZs are required to be notified after followingthe procedure as prescribed under the 1986 Rules and the saidGuidelines. Such notifications cannot be issued unless a closescrutiny at various levels including the scrutiny by ExpertCommittee consisting of experts from 13 organizations. As such,the direction as contained in paragraph 56.6 of the order dated3rd June 2022 also needs to be modified. [Para 59][632-G]

1.11 Insofar as the restriction on mining is concerned, ithas been the consistent view of this Court that the mining activities A

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Awithin an area of one kilometre of the boundary of the ProtectedAreas would be hazardous for the wildlife. Though in the case ofGoa Foundation’s case the said directions were issued in respectof State of Goa, such directions need to be issued on Pan-Indiabasis. [Para 60][632-H; 633-A]

B1.12 The direction in paragraph 56.1 of the order dated 3rdJune 2022 is modified and clarified that the directions containedtherein would not be applicable to the ESZs in respect of which adraft and final notification has been issued by the MoEF & CCand in respect of the proposals which have been received by theMinistry. However, the Central Government is directed that wideCpublicity should be given to the draft notification which is requiredto be published under the provisions of clause (a) of sub-rule (3)of Rule 5 of the 1986 Rules. The final notification to be publishedunder clause (d) of sub-rule (3) of Rule 5 of the 1986 Rules shallnot be given effect for a period of 30 days from the date of issuanceDthereof. It is further directed that any person who is aggrievedwith such a final notification would be entitled to approach thisCourt directly by filing an application in the instant proceedings.[Para 61-63][633-B-D]

1.13 It is clarified that the direction contained in paragraphE56.1 of the order dated 3rd June 2022 would not be applicablewhere the National Parks and Sanctuaries are located on inter-State borders and/or share common boundaries. The directioncontained in paragraph 56.4 of the order dated 3rd June 2022 ismodified and directed that mining within the National Park andWildlife Sanctuary and within an area of one kilometre from theFboundary of such National Park and Wildlife Sanctuary shall notbe permissible. [Para 64, 65][633-E-F]

1.14 The directions contained in paragraph 56.5 of the orderdated 3rd June 2022 is modified and replaced as under:

G(i) The MoEF & CC and all the State/Union TerritoryGovernments shall strictly follow the provisions in the saidGuidelines dated 9th February 2011 and so also the provisionscontained in the ESZs notifications pertaining to the respectiveProtected Areas with regard to prohibited activities, regulatedactivities and permissible activities;H

IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OFINDIA AND OTHERS

(ii) While granting Environmental and Forest Clearancesfor project activities in ESZ and other areas outside the ProtectedAreas, the Union of India as well as various State/Union TerritoryGovernments shall strictly follow the provisions contained in theOffice Memorandum dated 17th May 2022 issued by MoEF &CC. [Para 66][633-G-H; 634-A-B]

T.N. Godavarman Thirumulpad Vs U.O.I(2006) 5 SCC25;T.N. Godavarman Thirumulpad Vs U.O.I (2010) 13SCC 740;Goa Foundation v. U.O.I.(2011) 15 SCC791; Goa Foundation v. Union of India and Others(2014) 6 SCC 590 : [2014] 5 SCR 302 - referred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION : I.A. Nos.131377, 147102,195467, 195468, 205092 of 2022, I.A. Nos.162283 and 162284 of 2022In I.A. D. No.125746 of 2022

With

I.A. Nos.118604, 118606, 119400, 119401, 119404, 137132, 137138,137140 and 137143 of 2022, I.A. Nos.5764, 6804 And 10911 of 2023

In The Matter Of:

Writ Petition (Civil) No.202 Of 1995

(Under Article 32 of The Constitution of India)

A.D.N. Rao, Sr. Adv. (Amicus Curiae), K. Parameshwar, (AmicusCuriae) Ms. Arti Gupta, Ms. Kanti, Advs.

Ms. Aishwarya Bhati, A.S.G., Nikhil Goel, A.A.G., Jaideep Gupta,V. K. Shukla, K. Radhakrishnan, Sr. Advs., Gurmeet Singh Makker, Ms.Archana Pathak Dave, Ms. Suhashini Sen, S. S. Rebello, Shyam Gopal,Raghav Sharma, Sughosh Subramanyam, Dr. Arun Kumar Yadav, Ms.Sabina Shahid, Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, Rajeev A

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AKumar Dubey, Kamlendra Mishra, Dr. Joseph Aristotle S., ShobhitDwivedi, V.K. Biju, Ms. Ria Sachthey, Chetanya Singh, Dr. RanjeetBharti, M.K.S. Menon, Ms. Usha Nandini V., Biju P. Raman, RaviLamod, Arun Kumar Jaiswal, Wills Mathew, V. N. Raghupathy,Manendra Pal Gupta, Adithya Roy, Deepak Prakash, Raneev Dahiya,Pawan Kr. Dabas, Nachiketa Vaijpayee, Ms. Divyangna Malik, Ms.BVishnu Priya, Shyam Nair, Vardaan Kapoor, Ms. Disha Gupta, GautamS. Bhardwaj, Ms. Manvi Bhandari, Ashwin Kumar D.S., Ms. SurbhiMehta, Advs. for the Petitioner.

K.M. Nataraj, Balbir Singh, A.S.Gs., Dr. Manish Singhvi, Sr. Adv.,M. C. Dhingra, Gaurav Dhingra, Vikrant Yadav, Ms. Vijay Lakshmi,CNeeraj Shekhar, Dr. Sumit Kumar, Keshav Baheti, Ms. Asha GopalanNair, E. M. S. Anam, B V Deepak, Vikas Kumar Singh, Vikram Singh,Ms. Rajshree Singh, Dr. Sham Chand, T. N. Singh, Somesh ChandraJha, Sunil Kumar Sharma, Shreekant Neelappa Terdal, Mrinal ElkarMazumdar, Mukesh Kr. Verma, Neeraj Kr. Sharma, Ms. Indira Bhakar,DMs. Priyanka Sharma, Harender Singh, Ambuj Saraswat, P. S. Sudheer,Sunny Choudhary, Abhimanyu Singh, Ms. Manicka Priya, Mrs. KirtiRenu Mishra, Dr. Monika Gusain, Goverdhan Bhardwaj, P. K. Manohar,Ms. Deepanwita Priyanka, Ms. Archana Pathak Dave, Shailesh Madiyal,Vaibhav Sabharwal, Akshay Kumar, Naveen Kumar, James P. Thomas,Mrs. Niranjana Singh, Dhaval Mehrotra, B. K. Pal, Ms. Shalini Kaul,ESarvam Ritam Khare, Gaurav Agrawal, Shubhranshu Padhi, AravindhS., Ms. Uma Bhuvaneshwari. C, Abbas. B, M/s. D.S.K. Legal, Mrs.Pragya Baghel, Mrinal Gopal Elker, Arpit Parkash, Ms. ShubhangiAgarwal, Milind Kumar, Gopal Balwant Sathe, Ms. Suhasini Sen, NamanTandon, Piyush Beriwal, Samarvir Singh, Navanjay Mahapatra, AmrishFKumar, T.S. Sabarish, Kaushik Choudhury, Sandeep Kumar Jha, Ms.Anzu. K. Varkey, Abhishek Atrey, Dr. Abhishek Atrey, Ms. AmbikaAtrey, Ms. Vidyottma Jha, Akash Giri, M. R. Shamshad, Ajay Marwah,Naveen Kumar, Guntur Pramod Kumar, Ms. Mayuri Raghuvanshi, M/s.Cyril Amarchand Mangaldas, Abhinav Mukerji, Akshay C. Shrivastava,Mrs. Bihu Sharma, Ms. Pratishtha Vij, Ms. Ruchira Goel, Ms. SurbhiGMehta, Ms. Adarsh Nain, Anando Mukherjee, Siddhartha Jha, A. Karthik,Ms. Seita Vaidyalingam, M/s. Venkat Palwai Law Associates, VinodSharma, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Nishanth Patil, ChiragM. Shroff, Nishit Agrawal, Siddharth Dharmadhikari, Aaditya A. Pande,Bharat Bagla, Sourav Singh, Advs. for the Respondents.H

IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OFINDIA AND OTHERS

The Judgment of the Court was delivered by

B. R. GAVAI, J.

I.A. NO. 131377 OF 2022:

1. The present I.A. is filed by the Union of India praying formodification/clarification of the order passed by this Court dated 3[rd] June2022[1] in I.A. No. 1000 of 2003 in WP(C) No. 202 of 1995.

2. The applicant specifically seeks modification of the directionscontained in paragraphs 56.1 and 56.5 of the order dated 3[rd] June 2022(supra). The said paragraphs are reproduced hereinbelow:

“56.1. Each protected forest, that is, national park or wildlifesanctuary must have an ESZ of minimum one kilometre measuredfrom the demarcated boundary of such protected forest in whichthe activities proscribed and prescribed in the Guidelines of 9-2-2011 shall be strictly adhered to. For Jamua Ramgarh WildlifeSanctuary, it shall be 500 m so far as subsisting activities areconcerned.

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56.5. In the event any activity is already being undertaken withinthe one kilometre or extended buffer zone (ESZ), as the casemay be, of any wildlife sanctuary or national park which does notcome within the ambit of prohibited activities as per the 9-2-2011Guidelines, such activities may continue with permission of thePrincipal Chief Conservator of Forests of each State or UnionTerritory and the person responsible for such activities in such asituation shall obtain necessary permission within a period of sixmonths. Such permission shall be given once the Principal ChiefConservator of Forests is satisfied that the activities concerneddo not come within the prohibited list and were continuing prior topassing of this order in a legitimate manner. No new permanentstructure shall be permitted to come up for whatsoever purposewithin the ESZ.”

3. The clarification/modification of paragraph 56.1 of the orderdated 3[rd] June 2022 (supra) is sought to the extent that the Eco-SensitiveZones (for short, “ESZs”) which have already been notified (final anddraft) by the Ministry of Environment Forests and Climate Change (for 1 (2022) 10 SCC 544

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Ashort, “MoEF & CC”) or the proposals for which have been received inthe Ministry be exempted from the directions therein. The applicant alsosought modification to the extent that paragraph 56.1 of the order dated3[rd] June 2022 (supra) may not be made applicable where National Parksand Wildlife Sanctuaries are located along inter-State boundaries and/orcommon boundaries. Modification/clarification of the directions inBparagraph 56.5 of the order dated 3[rd] June 2022 (supra) in its entirety isadditionally sought.

4. We have heard Ms. Aishwarya Bhati, learned AdditionalSolicitor General (for short, “ASG”) appearing on behalf of the applicant,Shri K. Parameshwar, learned amicus curiae as well as Senior CounselCappearing on behalf of various State Governments.

5. It is submitted that the Government of India has already issuedGuidelines on 9[th] February 2011 (hereinafter referred to as the “saidGuidelines”) for declaration of ESZs around National Parks and WildlifeSanctuaries. The said Guidelines were framed after consulting theDNational Board for Wildlife (hereinafter referred to as “NBWL”), andall the State and Union Territory Governments. The said Guidelines providea detailed procedure for submitting a proposal for declaration of theareas around National Parks and Wildlife Sanctuaries as ESZs. It isfurther submitted that the said Guidelines itself contain various activitiesEwhich have been categorized as prohibited, regulated and permitted.

6. It is further submitted that the direction as contained in paragraph56.5 of the order dated 3[rd] June 2022 (supra) is likely to cause greathardship to the citizens residing in the ESZs. It is further submitted thatthe said directions provide that if any activity is already being undertakenFwithin one kilometre or extended buffer zone (ESZ), and which does notcome within the ambit of prohibited activities as per the said Guidelines,such activities may continue with the permission of the Principal ChiefConservator of Forests (for short, “PCCF”) of each State or UnionTerritory and the person responsible for such activities in such a situationshall obtain necessary permission within a period of six months.The saidGGuidelines further provide that such permission shall be given once thePCCF is satisfied that the activities concerned do not come within theprohibited list and were continuing prior to passing of this Court’s orderdated 3[rd] June 2022 (supra) in a legitimate manner. It is further submittedthat the direction that no new permanent structure shall be permitted to H

come up for whatsoever purpose within the ESZs would also causegreat hardship.

7. It is further submitted that insofar as the direction in paragraph56.1 of the order dated 3[rd] June 2022 (supra) is concerned, it mandatesthat each protected forest, that is, National Park or Wildlife Sanctuary,must have an ESZ of minimum one kilometre measured from thedemarcated boundary of such protected forest in which the activitiesproscribed and prescribed in the said Guidelines shall be strictly adheredto. Insofar as Jamua Ramgarh Wildlife Sanctuary is concerned, it isdirected that the ESZ shall be 500 meters so far as subsisting activitiesare concerned.

8. The learned ASG, amicus curiae and Senior Counsel appearingon behalf of various States submitted that in respect of various NationalParks and Wildlife Sanctuaries, already final notifications had been issued,prescribing the boundaries for the ESZs. In some cases, the draftnotifications are pending and in some other cases, the proposals forissuance of draft and final notifications are pending with the Governmentof India.

9. It is submitted that there cannot be a uniform boundary for allthe National Parks and Wildlife Sanctuaries. It is further submitted thatthere cannot also be a uniform boundary for a particular National Parkor Wildlife Sanctuary. At times, it may be longer on one side and shorteron the other side depending on various circumstances.

10. It is submitted that the rights of the citizens who are residingin the Protected Areas are settled under the provisions of Sections 18 to25A of the Wild Life (Protection) Act, 1972 (hereinafter referred to as“1972 Act”) whereas there is no settlement of rights of citizens residingin ESZs. The citizens therein continue to reside and are also continuingwith their daily avocation like farming etc. It is submitted that variousdevelopmental activities like construction of schools, dispensaries,anganwadis, public health centres etc. are required to be undertaken insuch areas. Not only that, but if the direction not to make any constructionis continued, the persons residing therein would not be in a position toconstruct or reconstruct houses on their own land. It is submitted thatthe procedure prescribed for obtaining the permission of the PCCF isvery tedious. If such a direction is issued, the PCCF would be left withno other work but to consider the applications for continuation of suchactivities.

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A11. It is further submitted that though this Court has observed inparagraph 54 of the order dated 3[rd] June 2022 (supra) that the saidGuidelines are reasonable, it has nevertheless issued directions whichare in conflict with the said Guidelines.

12. It is further contended that the issue in I.A. No. 1000 of 2003Bwas restricted to prohibition of mining activities in and around JamuaRamgarh Wildlife Sanctuary and prescribing ESZs for the said WildlifeSanctuary only. As such, various State Governments did not have anopportunity to address this Court.

13. Having considered the rival submissions, we find it appropriateto refer to various orders passed by this Court on the issue of ESZs/CBuffer Zones.

14. The first of such orders was passed by this Court on 16[th]September 2005[2]. It will be relevant to refer to paragraph 13 of the saidorder, which reads thus:

“13. We have perused the affidavit dated 14-9-2005 filed by MrDAnurag Bajpai on behalf of MoEF and the statement showing thegrant of temporary working permit in the last two years i.e. from1-1-2003 to 31-12-2004 in the national parks, sanctuaries and forestarea. This is despite the order passed by this Court restraining themining activities in these areas. Learned amicus curiae submitsEthat the inspection of the government record shows a dismalpicture and he would shortly file an application for takingappropriate action against the persons concerned. Pending filingof the said application and further orders, we again reiterate thatwithout compliance with the environmental laws, in particular thepermission under the Forest (Conservation) Act, 1980, noFtemporary working permission or temporary permit or any otherpermission by whatever name called shall be granted for miningactivities in the aforesaid areas. We further direct that no miningactivity would continue under any temporary working permitor permission which may have been granted. It appears fromGthe chart filed with the affidavit of Mr Anurag Bajpai that notemporary working permission is in operation as of today. Ifit is otherwise, an affidavit to that effect shall be filed withintwo weeks giving the particulars of such permission.”

[emphasis supplied]

15. It can thus clearly be seen that this Court directed that nomining activity would be permitted to continue under any temporaryworking permit or permission which may have been granted.

16. It will further be relevant to refer paragraph 15 of the saidorder, which reads thus:

“15. MoEF is directed to place on record within three weeks itsviewpoint on the question of area of buffer zone and other relatedmatters such as should it be universal or place specific. This shouldbe done after also obtaining the viewpoint of the National Boardof Wildlife.”

17. It can thus be seen from the said paragraph that this Courtdirected MoEF to place on record within three weeks its viewpoint onthe question of area of buffer zone and other related matters such asshould it be universal or place specific. The Court further directed thatthis should be done after obtaining the viewpoint of the NBWL.

18. The second of such orders is passed on 4[th] August 2006[3]. Thesaid order basically pertains to banning the mining activities in the NationalParks, 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 2006[4]. In the saidorder, the Court expressed its anguish towards the various StateGovernments for not responding to the letter issued by MoEF dated 27[th]May 2005 requiring them to initiate measures for identification of suitableareas and submit detailed proposals at the earliest. It will be relevant torefer to paragraphs 3 and 4 of the said order, which read thus:

“3. The order earlier passed on 30-1-2006 [GoaFoundation v. Union of India, (2011) 15 SCC 793] refers to thedecision which was taken on 21-1-2002 to notify the areas within10 km of the boundaries of national parks and sanctuaries as eco-sensitive areas. The Letter dated 27-5-2005 is a departure fromthe decision of 21-1-2002. For the present, in this case, we arenot considering the correctness of this departure. That is beingexamined in another case separately. Be that as it may, it is evidentthat the States/Union Territories have not given the importance 3 (2010) 13 SCC 740

4 (2011) 15 SCC 791

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that is required to be given to most of the laws to protectenvironment 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. TheState of Goa also is permitted to give appropriate proposal inBaddition to what is said to have already been sent to the CentralGovernment. The communication sent to the States/UnionTerritories shall make it clear that if the proposals are not senteven now within a period of four weeks of receipt of thecommunication from the Ministry, this Court may have to considerpassing orders for implementation of the decision that was takenCon 21-1-2002, namely, notification of the areas within 10 km ofthe boundaries of the sanctuaries and national parks as eco-sensitive areas with a view to conserve the forest, wildlife andenvironment, and having regard to the precautionary principles. Ifthe States/Union Territories now fail to respond, they would do soDat their own risk and peril.”

20. It can be seen that this Court refers to its earlier order dated30[th] January 2006 wherein a reference is made to the decision dated21[st] January 2002 to notify the areas within 10 kilometres of the boundariesof National Parks and Sanctuaries as ESZs. Though the order recordsEthat the letter dated 27[th] May 2005 is a departure from the decisiontaken on 21[st] January 2002, the Court observes that, in the said case, theCourt was not considering the correctness of the said departure. TheCourt therefore directed the Ministry to give a final opportunity to allStates/Union Territories to respond to its Letter dated 27[th] May 2005.The said order states that the communication should mention that if theFproposals were not sent within a period of four weeks from the receiptof the communication from the Ministry, this Court may have to considerpassing orders for implementation of the decision that was taken on 21[st]January 2002, i.e., notification of the areas within 10 kilometres of theboundaries of the sanctuaries and National Parks as ESZs.

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21. The next order of this Court is dated 21[st] April 2014 in thecase of Goa Foundation v. Union of India and Others[5]. It will berelevant to refer to the following observations of this Court in the saidorder:

5 (2014) 6 SCC 590H

“49. ……The result is that the order passed by this Court sayingthat there will be no mining activity within one kilometre safetyzone around national park or wildlife sanctuary has to be enforcedand there can be no mining activities within this area of onekilometre from the boundaries of national parks and wildlifesanctuaries in the State of Goa.”

22. The Court has clarified that there shall be no mining activitywithin one kilometre of the safety zone around National Park or WildlifeSanctuary and that this has to be enforced. It is also reiterated that therecan be no mining activities within this area of one kilometre from theboundaries of National Parks and Wildlife Sanctuaries in the State ofGoa.

23. The Court thereafter refers to the earlier order 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 [GoaFoundation v. Union of India, (2011) 15 SCC 791] of this Courtthat this Court has not passed any orders for implementation ofthe decision taken on 21-1-2002 to notify areas within 10 km ofthe boundaries of national parks or wildlife sanctuaries as eco-sensitive areas with a view to conserve the forest, wildlife andenvironment. By the order dated 4-12-2006 [GoaFoundation v. Union of India, (2011) 15 SCC 791] of this Court,however, the Ministry of Environment and Forests, Governmentof India, was directed to give a final opportunity to all States/Union Territories to respond to the proposal and also to refer tothe Standing Committee of the National Board for Wildlife thecases in which environment clearance has already been grantedin respect of activities within the 10 km zone from the boundariesof the wildlife sanctuaries and national parks. There is, therefore,no direction, interim or final, of this Court prohibiting miningactivities within 10 km of the boundaries of national parks or wildlifesanctuaries.”

24. It could thus be seen that the Court has specifically observedthat this Court had not passed any orders for implementation of thedecision taken on 21[st] January 2002 to notify areas within 10 kilometresof the boundaries of National Parks or Wildlife Sanctuaries as ESZswith a view to conserve the forest, wildlife and environment. The Courttherefore clarified that there is no direction, interim or final, prohibiting A

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Amining activities within 10 kilometres of the boundaries of National Parksor Wildlife Sanctuaries.

25. It will be relevant to refer to paragraphs 87.3 and 88.1 of thesaid order, which read thus:

“87.3. Until the order dated 4-8-2006 [T.N. GodavarmanBThirumulpad v. Union of India, (2010) 13 SCC 740] of this Courtis modified by this Court in IA No. 1000 in T.N. GodavarmanThirumulpad v. Union of India, there can be no mining activitieswithin one kilometre from the boundaries of national parks andsanctuaries in Goa.

88.1. MoEF will issue the notification of eco-sensitive zones aroundCthe national park and wildlife sanctuaries of Goa after followingthe procedure discussed in this judgment within a period of sixmonths from today.”

26. It can thus be seen that this Court has held that until the orderdated 4[th] August 2006 (supra) is modified by this Court in IA No. 1000Dof 2003 in the case of T.N. Godavarman Thirumulpad v. Union ofIndia, there can be no mining activities within one kilometre from theboundaries of National Parks and Sanctuaries in Goa. The Court furtherdirected MoEF to issue the notification of ESZs around the NationalPark and Wildlife Sanctuaries of Goa after following the procedureEdiscussed in the said judgment. The same was directed to be done withina period of six months from the date of the said order.

27. The next relevant order would be dated 11[th] 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 104FNational Parks and 558 Wildlife Sanctuaries making a total of 662National Parks and Wildlife Sanctuaries in the country.

The proposals for declaring areas around these NationalParks and Wildlife Sanctuaries as Eco Sensitive Zone have beenreceived from State Governments / UT Administrations for 641National Parks and Wildlife Sanctuaries. No proposals have beenGreceived in respect of 21 National Parks and Wildlife Sanctuaries.

The proposals have been accepted and Notification has beenissued in respect of 289 National Parks and Wildlife Sanctuariesas on 26.11.2018 and draft Notification has been prepared inrespect of 206 National Parks and Wildlife Sanctuaries.

H

The declaration with regard to Eco Sensitive Zone is underprocess with the Ministry of Environment, Forests and ClimateChange (MoEF) as well as with the State Governments in respectof 4 146 National Parks and Wildlife Sanctuaries.

We expect the Ministry of Environment, Forests and ClimateChange to actively pursue the preparation of the draft Notificationand to issue a final Notification at the earliest.

The proposals for 21 National Parks and Wildlife Sanctuariesin respect of which proposals have not yet been received by theMOEF are as follows:-

……..

It is submitted by the learned Amicus that this issue hasbeen pending since sometime in December, 2006. 12 years havegone-by but no effective steps have been taken by the StateGovernments in respect of the National Parks and WildlifeSanctuaries mentioned above.

Under the circumstances, we direct that an area of 10 Kmsaround these 21 National Parks and Wildlife Sanctuaries bedeclared as Eco Sensitive Zone by the MoEF. The declaration bemade by the MoEF at the earliest.

Liberty is granted to the State Governments to move anapplication for modification of this order along with proposal onlytwo weeks after submission of the proposals to the MoEF.”

28. It can be seen that this Court has recorded the submissions ofthe learned ASG that there were 104 National Parks and 558 WildlifeSanctuaries making a total of 662 National Parks and Wildlife Sanctuariesin the country. It was further recorded that the proposals for declaringareas around these National Parks and Wildlife Sanctuaries as ESZshad been received from the State Governments/Union Territories. Itcan further be seen that no proposals have been received in respect of21 National Parks and Wildlife Sanctuaries. It further recorded that theproposals had been accepted and notification had been issued in respectof 289 National Parks and Wildlife Sanctuaries as on 26[th] November2018 and draft notification had been prepared in respect of 206 NationalParks and Wildlife Sanctuaries. The Court therefore expected the MoEF& CC to actively pursue the preparation of the draft Notification and to A

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Aissue a final Notification at the earliest. The Court then recorded 21National Parks and Wildlife Sanctuaries in respect of which proposalshave not yet been received by the MoEF & CC alongside its anguishthat though 12 years had been passed, no effective steps have beentaken by the State Governments in respect of the National Parks andWildlife Sanctuaries named in the said order. Therefore, the Court directedBthat an area of 10 kilometres around these 21 National Parks and WildlifeSanctuaries be declared as ESZs by the MoEF & CC. Liberty wasgranted to the State Governments to move an application for modificationof the said order. However, it further directed that the application should

be along with the proposal for declaration of ESZs.C29. It is to be noted that the learned Judges of this Court, in thecase of Goa Foundation[6], had directed that the MoEF & CC shallfollow the procedure and issue notification of ESZs under Rule 5 of theEnvironment (Protection) Rules, 1986 (hereinafter referred to as “1986Rules”). The relevant provisions of the 1986 Rules are reproducedhereinbelow:D“5. Prohibition and restriction on the location of industriesand the carrying on of processes and operations in differentareas.—(1) The Central Government may take into considerationthe following factors while prohibiting or restricting the locationof industries and carrying on of processes and operations inEdifferent areas:

(i) Standards for quality of environment in its various aspectslaid down for an area.

(ii) The maximum allowable limits of concentration of variousenvironmental pollutants (including noise) for an area.F(iii) The likely emission or discharge of environmental pollutantsfrom an industry, process or operation proposed to be prohibitedor restricted.

(iv) The topographic and climatic features of an area.

(v) The biological diversity of the area which, in the opinion ofGthe Central Government needs to be preserved.

(vi) Environmentally compatible land use.

(vii) Net adverse environmental impact likely to be caused byan industry, process or operation proposed to be prohibited orrestricted.

H6 (2014) 6 SCC 590

(viii) Proximity to a protected area under the AncientMonuments and Archaeological Sites and Remains Act, 1958or a sanctuary, National Park, game reserve or closed areanotified as such under the Wild Life (Protection) Act, 1972 orplaces protected under any treaty, agreement or conventionwith any other country or countries or in pursuance of anydecision made in any international conference, association orother body.

(ix) Proximity to human settlements.

(x) Any other factor as may be considered by the CentralGovernment to be relevant to the protection of the environmentin an area.

(2) While prohibiting or restricting the location of industries andcarrying on of processes and operations in an area, the CentralGovernment shall follow the procedure hereinafter laid down.

(3) (a) Whenever it appears to the Central Government that it isexpedient to impose prohibition or restrictions on the location ofan industry or the carrying on of processes and operations in anarea, it may, by notification in the Official Gazette and in suchother manner as the Central Government may deem necessaryfrom time to time, give notice of its intention to do so.

(b) Every notification under clause (a) shall give a briefdescription of the area, the industries, operations, processes inthat area about which such notification pertains and also specifythe reasons for the imposition of prohibition or restrictions onthe location of the industries and carrying on of processes oroperations in that area.

(c) Any person interested in filing an objection against theimposition of prohibition or restrictions on carrying on ofprocesses or operations as notified under clause (a) may do soin writing to the Central Government within sixty days fromthe date of publication in the notification in the Official Gazette.

(d) The Central Government shall within a period of onehundred and twenty days from the date of publication of thenotification in the Official Gazette consider all the objectionsreceived against such notification and may [within [seven A

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hundred and twenty-five days [, and in respect of the States ofAssam, Meghalaya, Arunachal Pradesh, Mizoram, Manipur,Nagaland, Tripura, Sikkim and Jammu and Kashmir inexceptional circumstance and for sufficient reasons within afurther period of one hundred and eighty days,]] from suchdate of publication] impose prohibition or restrictions on locationof such industries and the carrying on of any process oroperation in an area:

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[Provided that on account of COVID-19 pandemic, for the purposeof this clause, the period of validity of the notification expiring inthe financial year 2020-2021 and 2021-2022 shall be extended upto [30th June, 2022] or six months from the end of the monthwhen the relevant notification would have expired without anyextension, whichever is later.]

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[(4) Notwithstanding anything contained in sub-rule (3), wheneverit appears to the Central Government that it is in public interest toDdo 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 adetailed procedure for issuing notification prohibiting or restricting variousactivities in the specified areas. The said power flows from SectionsE3(v) of the Environment (Protection) Act, 1986 (hereinafter referred toas “1986 Act”).

31. A perusal of clause (viii) of sub-rule (1) of Rule 5 of the 1986Rules would reveal that one of the factors that has to be taken intoconsideration for declaring ESZ is the proximity to a sanctuary, NationalFPark, 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 itappears to the Central Government that it is expedient to imposeprohibition or restrictions, it is required to give notice of its intention to doso by notification in the Official Gazette and in such other manner as theGCentral Government may deem necessary from time to time. As persub-rule 3(b) of Rule 5, every such notification is required to give a briefdescription of the area, the industries, operations processes in that areaabout which such notification pertains and also specify the reasons forthe imposition of prohibition or restrictions on the location of the industriesoncarrying out of the processes or operations in that area. Accordingly,Has per sub-rule 3(c) of Rule 5, any person interested in filing an objection is entitled to file an objection to the Central Government within sixtydays from the date of publication in the notification in the Official Gazette.The Central Government thereafter within the prescribed period providedunder clause (d) of sub-rule (3) of Rule 5 of the 1986 Rules is requiredto issue a notification in the Official Gazette imposing such prohibition orrestrictions in an area. This is required to be done only after consideringall the objections received under clause (c) of sub-rule (3) of Rule 5 ofthe 1986 Rules. It can thus be seen that a detailed procedure is prescribedunder the 1986 Rules for notifying ESZs.

32. It is to be noted that MoEF & CC has issued the said Guidelinesfor declaration of ESZs around the National Parks and WildlifeSanctuaries.

33. The said Guidelines refer to a meeting of the Indian Board forWildlife held on 21[st] January 2002, in which “Wildlife ConservationStrategy-2002” was adopted. Point No. 9 of the said Strategy envisagedthat lands falling within 10 kilometres of the boundaries of National Parksand Sanctuaries should be notified as eco-fragile zones under Section3(v) of the 1972 Act and clause (viii) of sub-rule (1) of Rule 5 of the1986 Rules. It further states that when the views were obtained from allthe State Governments, some of the State Governments had raisedconcern over applicability of 10 kilometres range from the ProtectedArea boundary and informed that most of the human habitation andother areas including important cities in these States would come underthe purview of ESZs and will adversely affect the development. Thesaid Guidelines also refer to the National Wildlife Action Plan (2002-2016). The NBWL, in its meeting held on 17[th] March 2005, decided thatthe delineation of ESZs would have to be site specific and relate toregulation rather than prohibition of specific activities. The said decisionwas communicated to all the State Governments for compliance videletter dated 27[th] May 2005.

34. The said Guidelines thereafter refer to the directions of thisCourt dated 4[th] December 2006. It also refers to the statutory provisionsas contained in Section 5C (1) of the 1972 Act, Section 3 of the 1986 Actand Rule 5 of the 1986 Rules. The said Guidelines state that the purposeof declaring ESZs around National Parks and Sanctuaries is to createsome kind of Shock Absorber for the Protected Areas. They would alsoact as a transition zone from areas of high protection to areas involvinglesser protection. It also reiterates the decision of the NBWL that the A

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Aactivities in the ESZs would be of a regulatory nature rather thanprohibitive nature unless and otherwise so required. Paragraph 4 of thesaid Guidelines notes that many of the existing Protected Areas havealready undergone tremendous development in close vicinity to theirboundaries. It refers to the Guindy National Park, Tamil Nadu, SanjayGandhi National Park, Maharashtra, etc. and notes that the ProtectedBAreas are lying in the urban set up. It therefore observes that definingthe extent of ESZs around Protected Areas will have to be kept flexibleand Protected Area specific. It notes that the width of ESZs and type ofregulations will differ from one Protected Area to another Protected Area. It however notes that, as a general principle, the width of theCESZs could go up to 10 kilometres around a Protected Area as providedin the Wildlife Conservation Strategy-2002. It further notes that in casewhere sensitive corridors, connectivity and ecologically important patches,crucial for landscape linkage, are even beyond 10 kilometres width, theseshould be included in the ESZs. It further notes that even in context of aparticular Protected Area, the distribution of an area of the ESZ and theDextent of regulation may not be uniform all around and it could be ofvariable width and extent. The said Guidelines notes that though thedirections were issued by this Court to all the States/Union Territories,except a few States, several other States/Union Territories have notcome forward with the proposals for declaration of ESZs. It wasEobserved 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 nearOkhla Bird Sanctuary, observed that the ESZs around the ProtectedAreas had not been notified as the Government of India had not issuedany guidelines in this regard.F

35. It thereafter refers to the Committee under the Chairmanshipof Shri Pronab Sen for identifying parameters for designating EcologicallySensitive Areas in India.

36. The said Guidelines thereafter state in paragraph 6 that theGbasic aim of notifying ESZs is to regulate certain activities around NationalPark and Wildlife Sanctuary so as to minimize the negative impact ofsuch activities on the fragile ecosystem encompassing the ProtectedArea. It states that the first step towards it is to prepare an inventory ofthe different land use patterns and the different types of activities, typesand number of industries operating around each of the Protected AreaH

as well as important Corridors. It states that the inventory could be doneby the concerned Range Officers, who can take a stock of activitieswithin 10 kilometres of the range. It further notes that a Committeecomprising of the concerned Wildlife Warden, an Ecologist, an officialfrom the Local Self Government and an official of the RevenueDepartment of the concerned area, could be formed to suggest thefollowing:

(i) Extent of eco-sensitive zones for the Protected Area beingconsidered.

(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 inthe Master Plan for the region.

37. It further notes that based on the above, the Chief WildlifeWarden 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 forESZs has been finalized, the same should be forwarded to the MoEF &CC for further processing and notification. An indicative list of detailsthat need to be submitted along with the proposals is also appended tothe said Guidelines.

39. The said Guidelines further note that where the boundary of aProtected Area abuts the boundary of another State/Union Territorywhere it does not form part of any Protected Area, it should be theendeavour of both the State/Union Territory Governments to have amutual consultation and decide upon the width of the ESZs around theProtected Area in question. The said Guidelines emphasize that the StateGovernment should endeavour to convey a very strong message to thepublic that ESZs are not meant to hamper their day to day activities, butinstead, are meant to protect the precious forests/Protected Areas intheir locality from any negative impact, and also to refine the environmentaround the Protected Areas. It further notes that these guidelines are A

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Aindicative in nature and the State/Union Territory Governments may usethese as basic framework to develop specific guidelines applicable inthe context of their National Parks, Wildlife Sanctuaries, importantcorridors etc. with a view to minimizing and preferably eliminating anynegative impact on Protected Areas.

B40. A list of the activities which are prohibited, regulated andpermitted is contained in Annexure-I of the said Guidelines, which reads thus:

IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF625INDIA AND OTHERS [B. R. GAVAI, J.]12. Rain Water Y Should be actively Aharvestingpromoted13. Fencing of Y premises of hotels and lodges 14. Organic farming Y Should be actively promoted 15. Use of polythene Y Bbags by shopkeepers16. Use of renewable Y Should be actively energy sources promoted 17. Widening of roads Y This should be done with proper EIA and mitigation measures18. Movement of Y For commercial Cvehicular traffic at purpose night19. Introduction of Y exotic species 20. Use of production Y of any hazardous substancesD21. Undertaking activities related to tourism like over-flying the National Park are by any aircraft, hot-air balloons22. Protection of hill Y As per the master plan Eslopes and river banks 23. Discharge of Y effluents and solid waste in natural water bodies or terrestrial are 24. Air and vehicular Y Fpollution25. Sign board & Y As per the master plan hoardings26. Adoption of green Y Should be actively technology for all promoted. activitiesG

41. It is to be noted that this Court in paragraph 54 of the orderdated 3[rd] June 2022 (supra) has, in fact, held the said Guidelines to bereasonable and also accepted the view of the Standing Committee ofthe NBWL that uniform guidelines may not be possible in respect ofeach sanctuary or National Park for maintaining the ESZs. It is alsoobserved that the sanctuaries like Sanjay Gandhi National Park and AGuindy National Park in Mumbai shall form special cases. The saidparagraph 54 is reproduced hereinunder:

“54. In our opinion, the Guidelines framed on 9-2-2011 appear tobe reasonable and we accept the view of the Standing Committeethat uniform guidelines may not be possible in respect of eachBsanctuary or national park for maintaining ESZ. We are of theopinion, however, that a minimum width of 1 km ESZ ought to bemaintained in respect of the protected forests, which forms partof the recommendations of CEC in relation to Category Bprotected forests. This would be the standard formula, subject tochanges in special circumstances. We have considered CEC’sCrecommendation that the ESZ should be relatable to the areacovered by a protected forest but the Standing Committee’s viewthat the area of a protected forest may not always be a reasonablecriteria also merits consideration. It was argued before us thatthe 1 km wide “no-development-zone” may not be feasible in allDcases and specific instances were given for Sanjay Gandhi NationalPark and Guindy National Park in Mumbai and Chennai metropolisrespectively 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 beenEprepared by MoEF & CC of the activities which shall be prohibited, theactivities which shall be regulated and the activities which shall bepermitted.

43. In the application, it is stated that after the proposals arereceived from the State Governments/Union Territory Administrations,Fthey are scrutinized in consultation with the Wildlife Institute of India,Dehradun, and in case of tiger reserves, with the National TigerConservation Authority. They are thereafter published in the OfficialGazette of the Central Government in both Hindi and English. They arealso placed in the public domain for 60 days for seeking comments ofconcerned stakeholders. The comments so received are compiled andGscrutinized and observation of the concerned State Government/UnionTerritory Administration is sought on the same. The aforesaidrequirements are in tune with the provisions of Rule 5 of 1986 Rules.

44. The application further states that the proposal is thereafterplaced before an Expert Committee constituted for ESZ within the MoEFH& CC. The said Committee comprises of the following:

IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OFINDIA AND OTHERS [B. R. GAVAI, J.]

(i) Indian Institute of Remote Sensing/Indian Space ResearchAOrganization,

(ii) Ministry of Jal Shakti,

(iii) Ministry of Rural Development,

(iv) Forest Survey of India,

B

(v) Town & Country Planning Organization, Government ofIndia,

(vi) National Tiger Conservation Authority,

(vii) Wildlife Institute of India,

C

(viii) GB Pant Institute of Himalayan Environment &Development,

(ix) Indian Council of Forestry Research and Education,

(x) World Wildlife Fund,

D

(xi) Zoological Survey of India,

(xii) Botanical Survey of India,

(xiii) Salim Ali Centre for Ornithology and Natural History(SACON).

E

45. It is further stated in the application that based on therecommendation of the Expert Committee (ESZ), the Ministry finalizesthe notification of ESZs and after due legal vetting by the Ministry ofLaw & Justice, final notifications specifying the ESZs around theProtected Areas are notified. It could thus be seen that an elaborateprocedure including consideration by a Committee of Experts comingfrom 13 organizations having expertise in wildlife ecology, forest etc. isfollowed before a final notification prescribing ESZs is notified.

F

46. In the application filed by the Union of India, various illustrationshave been given to point out as to how if the directions issued in paragraph56.5 of the order dated 3[rd] June 2022 (supra) are not modified, a severehardship would be caused to the millions of people. We refer to thesame hereunder:

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(i) “The ESZ around Nagarjunasagar Srisailam Tiger Reservein Andhra Pradesh extends from 0 to 26 kilometres and100 villages are situated within it (Zero extent of ESZ is H

628SUPREME COURT REPORTS

Adue to Krishna River and interstate boundary withTelangana);

(ii) The ESZ around Valmiki Wildlife Sanctuary, ValmikiNational Park and Valmiki Tiger Reserve in Bihar extendsfrom 0 to 9 kilometres and 323 villages are situated within itB(zero extent of ESZ is towards Western side sharinginter-state boundaries with Uttar Pradesh and towardsNorthern side sharing international boundary withNepal);

(iii) The ESZ around Betla National Park, Palamau WildlifeCSanctuary, and Mahuadanr Wolf Sanctuary in Jharkhandextends from 0 to 9 kilometres and 382 villages are situatedwithin it (Zero extent of ESZ is due to Inter-Stateboundary);

(iv) The ESZ around Cauvery Wildlife Sanctuary in KarnatakaDextends from 1 to 14.5 kilometres and 107 villages aresituated within it;

(v) The ESZ around Kanha National Park and Phen WildlifeSanctuary in Madhya Pradesh extends from 0 to 30kilometres and 168 villages are situated within it (Zero extentEof Eco-sensitive Zone is towards the eastern side havinginterstate boundary with Chhattisgarh);

(vi) The ESZ around Tadoba-Andhari Tiger Reserve inMaharashtra extends from 3 to 6 kilometres and 150 villagesare situated within it;

F(vii)The ESZ around Jaisamand Wildlife Sanctuary in Rajasthanextends from 1.6 to 8.9 kilometres and 83 villages aresituated in it;

(viii) Even a small ESZ such as the one around Keoladeo NationalPark in Rajasthan which extends from 0.5 to 1.5 kilometresGhas 22 villages situated in it.”

47. It would thus reveal that in the ESZ around NagarjunasagarSrisailam Tiger Reserve in Andhra Pradesh, 100 villages are situatedwithin it. In the ESZ around Valmiki Wildlife Sanctuary, Valmiki NationalPark and Valmiki Tiger Reserve in Bihar, 323 villages are situated withinHit. In the ESZ around Betla National Park, Palamau Wildlife Sanctuary, and Mahuadanr Wolf Sanctuary in Jharkhand, 382 villages are situatedwithin it. In the ESZ around Cauvery Wildlife Sanctuary in Karnataka,107 villages are situated within it. In the ESZ around Kanha NationalPark and Phen Wildlife Sanctuary in Madhya Pradesh, 168 villages aresituated within it. In the ESZ around Tadoba-Andhari Tiger Reserve inMaharashtra, 150 villages are situated within it. In the ESZ aroundJaisamand Wildlife Sanctuary in Rajasthan, 83 villages are situated in it.Even in a small ESZ around Keoladeo National Park in Rajasthan, 22villages situated in it.

48. If the direction as issued by this Court in paragraph 56.5 ofthe order dated 3[rd] June 2022 (supra) is continued, then no permanentstructure would be permitted to come up for whatsoever purpose in theaforesaid ESZs. As already pointed out from the aforesaid examples,hundreds of villages are situated within the ESZs in the country. If nopermanent construction is to be permitted for any purpose, a villagerwho is desirous to reconstruct his house would not be permitted.Similarly,if there is an extension in their family and some additional construction isrequired for accommodating the enlarged family, the same would alsonot be permitted. Similarly, if the Government decides to construct schools,dispensaries, anganwadis, village stores, water tanks and other basicstructures for improvement of the life of the villagers, the same wouldalso not be permitted. The effect of the order will be to prevent the Stateor the Central Government from constructing roads and provide otherfacilities to the villagers.

49. If the order dated 3[rd] June 2022 (supra) is not modified, it willalso be impossible for the Forest Departments to conduct eco-development activities around National Parks and Sanctuaries. The saidactivities are required with the dual objectives of protection of wildlifeand provision of benefits for the local communities. MoEF & CC providesfinancial assistance to the States under the Centrally Sponsored Scheme-Integrated Development of Wildlife Habitats, which includes assistancefor eco-development activities. These activities often involve constructionof small structures which are permanent in nature in areas includingESZs. For example, the said activities which are likely to be prohibitedare thus:

(i) The construction of community halls, bridges, threshingfloors, fish-drying platforms, drinking water storage, etc.,for the benefit of local communities/villages; A

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A(ii)The construction of forest chowkies, watch towers, andother structures for protection of wildlife and forests;

(iii) The construction of interpretation centres, toilets and otherbasic structures for the environmental education of visitorsto National Parks and sanctuaries.

B

50. It is further to be noted that there are various regulated andpermissible activities. There are also certain projects of national andstrategic importance such as construction of National Highways, Railways,Defence related infrastructure etc. The effect of the direction in 56.5 ofthe order dated 3[rd] June 2022 (supra) is that all such activities will beCpermanently prohibited. In this respect, it is to be noted that MoEF &CC has issued an Office Memorandum dated 17[th] May 2022 whichrequired that any activity listed in Schedule of the EIA Notification 2006,when conducted in a notified ESZs, or in the case of National Parks andSanctuaries for which no ESZ has been finally notified, when conductedwithin 10 kilometres of such National Park or Sanctuary, requires theDconsideration and recommendation of the NBWL or its StandingCommittee in addition to the Environment Clearance under the 1986Act. Additionally, activities which are regulated as per the specific ESZnotification, require approval as per that notification. As such, we findthat there are inbuilt safeguards for preventing rampant constructionEand abuse of process which may be detrimental to the development andmaintenance of wildlife habitats. It is further to be noted that if thedirection as contained in paragraph 56.5 of the order dated 3[rd] June 2022(supra) that even for continuation of existing activities, the permission ofthe PCCF of each State or Union Territory would be necessary, remainsunmodified, taking into consideration that in each State or Union TerritoryFthere will be hundreds of villages wherein millions of people would beresiding, the PCCF would be left with no other job except to considersuch applications for permission to continue such activities. Even a farmerdesirous to continue farming activities would be required to seek suchpermission. We find that such a direction is impossible to be implemented.G

51. We are of the view that if such a direction is continued, ratherthan avoiding man-animal conflict, it will intensify the same. As observedin the said Guidelines, the requirement of declaring ESZs is not to hamperday to day activities of the citizens but is meant to protect the preciousforests/Protected Areas from any negative impact, and to refine theenvironment around the Protected Areas.H

52. As already discussed hereinabove, the necessity to have ESZsis to provide a buffer zone around the Protected Areas. The rights of thevillagers residing in the Protected Areas are required to be settled inaccordance with the provisions contained in the 1972 Act and suchvillagers are rehabilitated outside the Protected Areas. However, no suchsettlement 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 tohamper the day to day activities of the citizens. If the direction as issuedis continued, it would certainly hamper the day to day activities of thecitizens residing in ESZs. As such, we find that the said direction needsto be modified.

53. It is further to be noted that the NBWL, in its meeting dated17[th] March 2005, has also recommended that the delineation of ESZsshould project as regulation rather than prohibition of activities.

54. As was pointed out by the counsel for one of the States, theentire municipal area of the Sulthan Bathery Block Panchayat is situatedwithin 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 revealthat this Court has not directed any minimum area from the demarcatedboundary of such Protected Areas. The area to be declared as ESZcannot be uniform and will be Protected Area specific. In some cases, itmay be 10 kilometres on one side and 500 meters on the other side. Incertain cases, it may not be possible to have a uniform minimum area byvirtue of inter-state boundaries or a sea or a river beyond one side of theProtected Area. In any case, a detailed procedure is required to befollowed as prescribed under Rule 5 of the 1986 Rules which we havealready referred hereinabove. We find that once such a notification isissued 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) ofRule 5 of the 1986 Rules, before any final notification is issued, a draftnotification is required to be published in the Official Gazette and in suchother manner as the Central Government may deem necessary fromtime to time. Any person interested in filing any objection to such a draftnotification is entitled to file objection within a period of 60 days from thedate of publication of the draft notification in the Official Gazette. We A

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Afind that the Central Government can be directed to give a wide publicityto the draft notification so that all persons interested have knowledgeabout issuance of such draft notification.

57. It is pertinent to note that after following the aforesaidprocedure, the matter is placed before the Expert Committee consistingBof 13 organizations having expertise in the relative field. As such, beforean ESZ area is specified, various factors are taken into consideration.There are various factors which will determine the ESZs for a particularProtected Area. The circumstances may differ from one Protected Areato another Protected Area. As such, we find that the direction whichprescribes a uniform one kilometre ESZ requires to be modified.C

58. It is further to be noted that on the date of filing of the presentapplication, final notifications have been issued in respect of 474Protected Areas whereas draft notifications have been issued in respectof 102 Protected Areas. 73 proposals are pending. As already discussedhereinabove, this Court has already found the said Guidelines to beDreasonable and has accepted the same. The Court has also acceptedthe view of the Standing Committee of the NBWL that uniform guidelinesmay not be possible in respect of each Sanctuary or National Park formaintaining ESZs. Though the Court has observed that a minimum widthof one kilometre in ESZ ought to be maintained, in paragraph 56.6 of theEorder dated 3[rd] June 2022 (supra) itself, it has observed that minimumwidth of the ESZ may be diluted in overwhelming public interest but forthat purpose the State or Union Territory concerned is required toapproach Central Empowered Committee (CEC) and MoEF & CC. Ithas further observed that both these bodies shall give their respectiverecommendations before this Court and on that basis, the Court shouldFpass appropriate order.

59. As already discussed hereinabove, the ESZs are required tobe notified after following the procedure as prescribed under the 1986Rules and the said Guidelines. Such notifications cannot be issued unlessa close scrutiny at various levels including the scrutiny by ExpertGCommittee consisting of experts from 13 organizations. As such, wefind that the direction as contained in paragraph 56.6 of the order dated3[rd] June 2022 (supra) also needs to be modified.

60. Insofar as the restriction on mining is concerned, we are ofthe considered view that it has been the consistent view of this CourtHthat the mining activities within an area of one kilometre of the boundary of the Protected Areas will be hazardous for the wildlife. Though in thecase of Goa Foundation (supra), the said directions were issued inrespect of State of Goa, we find that such directions need to be issuedon Pan-India basis.

61. We are therefore inclined to allow the present I.A. The directionin paragraph 56.1 of the order dated 3[rd] June 2022 (supra) is modifiedand clarified that the directions contained therein would not be applicableto the ESZs in respect of which a draft and final notification has beenissued by the MoEF & CC and in respect of the proposals which havebeen received by the Ministry.

62. We, however, direct the Central Government that wide publicityshould be given to the draft notification which is required to be publishedunder the provisions of clause (a) of sub-rule (3) of Rule 5 of the 1986Rules. We further direct that the final notification to be published underclause (d) of sub-rule (3) of Rule 5 of the 1986 Rules shall not be giveneffect for a period of 30 days from the date of issuance thereof.

63. It is further directed that any person who is aggrieved withsuch a final notification would be entitled to approach this Court directlyby filing an application in the present proceedings.

64. We further clarify that the direction contained in paragraph56.1 of the order dated 3[rd] June 2022 (supra) would not be applicablewhere the National Parks and Sanctuaries are located on inter-Stateborders and/or share common boundaries.

65. We also modify the direction contained in paragraph 56.4 ofthe order dated 3[rd] June 2022 (supra) and direct that mining within theNational Park and Wildlife Sanctuary and within an area of one kilometrefrom the boundary of such National Park and Wildlife Sanctuary shallnot be permissible.

66. We also modify the directions contained in paragraph 56.5 ofthe order dated 3[rd] June 2022 (supra) and replace the same as under:

(i) The MoEF & CC and all the State/Union TerritoryGovernments shall strictly follow the provisions in the saidGuidelines dated 9[th] February 2011 and so also the provisionscontained in the ESZs notifications pertaining to therespective Protected Areas with regard to prohibitedactivities, regulated activities and permissible activities; A

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634SUPREME COURT REPORTS

A(ii)We further direct that while granting Environmental andForest Clearances for project activities in ESZ and otherareas outside the Protected Areas, the Union of India aswell as various State/Union Territory Governments shallstrictly follow the provisions contained in the OfficeMemorandum dated 17[th] May 2022 issued by MoEF & CC.B67. All the other present I.As shall stand disposed of in terms ofthe above. No costs.

C

Nidhi Jain

(Assisted by : Tamana, LCRA)

I.As disposed of.

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