Mary Elias v. Union of India & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 19[TH] DAY OF DECEMBER 2022/28TH AGRAHAYANA, 1944** **WP(C) NO. 37324 OF 2022** ## **PETITIONER:** **MARY ELIAS AGED 59 YEARS KAKKADAN HOUSE, PATTIMATTAM P.O, ERNAKULAM – 683582. BY ADV BINU PAUL** ## **RESPONDENTS:** - **1 THE MINISTRY OF ENVIRONMENT FOREST & CLIMATE CHANGE INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, NEW DELHI - 110 003, REPRESENTED BY ITS SECRETARY** - **2 STANDING COMMITTEE FOR NATIONAL BOARD FOR WILD LIFE MINISTRY OF ENVIRONMENT FOREST & CLIMATE CHANGE, INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, NEW DELHI - 110 003, REPRESENTED BY ITS MEMBER SECRETARY** - **3 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY SECRETARIAT, THIRUVANANTHAPURAM – 695001.** - **4 STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA), KERALA, 4TH FLOOR, KSRTC BUS TERMINAL COMPLEX, TRIVANDRUM - 695 001. REPRESENTED BY ITS MEMBER SECRETARY.** - **5 THE DIRECTOR OF MINING AND GEOLOGY GOVERNMENT OF KERALA, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM – 695001.** - **6 THE CHIEF WILD LIFE WARDEN, FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM – 695014.** WP(C) No.37324 of 2022 : 2 : **BY ADVS. SRI.M.P.SREEKRISHNAN, SC FOR R4 SRI.T.P.SAJAN SPL.GP(FOREST) SRI.S.MANU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.37324 of 2022 : 3 : ## **J U D G M E N T** ## _**Dated this the 19[th] day of December, 2022**_ The petitioner, who is engaged in quarrying and mining in Kottappady Village in Kothamangalam Taluk of Ernakulam District, has filed this writ petition seeking to quash the condition in addition to the General Conditions mentioned in Clause No.3 of Ext.P1. 2. The petitioner submitted application for grant of quarrying lease to the Director of Mining and Geology. The petitioner states that he was issued with Ext.P1 Environmental Clearance Certificate dated 30.06.2022 of the Director on condition that the petitioner shall obtain Wildlife Clearance Certificate from the National Wildlife Board. 3. The petitioner states that the petitioner's Quarry is situated 9 kilometers away from the Thattekkad Bird Sanctuary. Therefore, the proposed buffer Zone identified and demarcated will not take in the quarrying area of the petitioner. The petitioner pointed out that recently the Hon'ble WP(C) No.37324 of 2022 : 4 : Apex Court in _**T.N.Godavarman Thirumulpad v. Union of India** [2022 (3) KLT 739 (SC)]_ has held that the restriction applicable to ESZ is confined to the proposed area only. 4. In view of the judgment of the Apex Court, Ext.P1 Environmental Clearance of SIEAA also cannot stand the scrutiny of law in so far as it applies to the condition relating to the Clearance from SCNBWL. The 5[th] respondent is compellable to grant quarrying lease to the petitioner without insisting for SCNBWL Clearance, contends the petitioner. 5. The Special Government Pleader entered appearance and resisted the writ petition. The Special Government Pleader pointed out that it is mandatory to take prior clearance from SCNBWL for the developmental activities/ projects which fall within 10 Kilometres from the boundary of the National Parks and Sanctuaries, where the notification is only in the draft stage or no final notification is issued. Therefore, it cannot be said that the petitioner is eligible to get the Quarrying Lease. 6. The Special Government Pleader submitted that WP(C) No.37324 of 2022 : 5 : the direction of the Apex Court given in the judgment in _**T.N.Godavarman Thirumulpad**_ (supra) is that in the event of CEC, MOEF & CC, the Standing Committee of National Board of Wildlife or any other body of persons or individual having special interest in environmental issues considers it necessary for maintaining wider or larger ESZ in respect of National Parks or Wildlife Sanctuaries, such body or individual shall approach the CEC. In such situation, the CEC shall be at liberty to examine the need of a wider ESZ in respect of any National Parks or Wildlife Sanctuaries in consultation with all the Stakeholders including the State or Union Territory concerned, MOEF & CC as also the Standing Committee of National Board of Wildlife and then approach the Apex Court with its recommendations. The Special Government Pleader further submitted that the issue is pending before this Court and any order that may be passed in this writ petition will be subject to the decision of the Division Bench. 7. I have heard the learned counsel for the petitioner, the learned Special Government Pleader representing WP(C) No.37324 of 2022 : 6 : respondents 3, 5 and 6, the learned Standing Counsel for the 4[th] respondent and the learned DSGI for respondents 1 and 2. 8. Ext.P5 report dated 12.10.2021 showing the distance between the petitioner's proposed quarry and the Thattekkad Bird Sanctuary would show that the petitioner's quarry is 9 Kilometres away from the Thattekkad Bird Santuary. 9. Ext.P7 notification would indicate that the Buffer area in respect of Thattekkad Bird Sanctuary will be upto 1 Kilometre. The distance of the petitioner's quarry from Thattekkad Bird Sanctuary is stated to be 9 Kilometres. 10. The Hon'ble Apex Court in _**T.N.Godavarman Thirumulpad**_ (supra) gave the following directions: “44. We accordingly direct: (a) Each protected forest, that is national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9[th] February 2011 shall be strictly adhered to. For Jamua Ramgarh wildlife sanctuary, it shall be 500 metres so far as subsisting activities are concerned. (b) In the event, however, the ESZ is already prescribed as per law that goes beyond one kilometre buffer zone, the wider margin as ESZ shall WP(C) No.37324 of 2022 : 7 : prevail. If such wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular national park or wildlife sanctuary awaiting final decision in that regard, then till such final decision is taken, the ESZ covering the area beyond one kilometre as proposed shall be maintained. (c) The Principal Chief Conservator of Forests as also the Home Secretary of each State and Union Territory shall remain responsible for proper compliance of the said Guidelines as regards nature of use within the ESZ of all national parks and sanctuaries within a particular State or Union Territory. The Principal Chief Conservator of Forests for each State and Union Territory shall also arrange to make a list of subsisting structures and other relevant details within the respective ESZS forthwith and a report shall be furnished before this Court by the Principal Chief Conservator of Forests of each State and Union Territory within a period of three months. For this purpose, such authority shall be entitled to take assistance of any governmental agency for satellite imaging or photography using drones. (d) Mining within the national parks and wildlife sanctuaries shall not be permitted. (e) In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as the 9th February 2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a WP(C) No.37324 of 2022 : 8 : legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ. (f) The minimum width of the ESZ may be diluted in overwhelming public interest but for that purpose the State or Union Territory concerned shall approach the CEC and MoEF&CC and both these bodies shall give their respective opinions/recommendations before this Court. On that basis, this Court shall pass appropriate order. (g) In the event the CEC, MoEF&CC, the Standing Committee of National Board of Wildlife or any other body of persons or individual having special interest in environmental issues consider necessary for maintaining a wider or larger ESZ respect any national park or wildlife sanctuary, such body or individual shall approach the CEC. In such situation the CEC shall be at liberty examine the need of wider ESZ in respect of any national park wildlife sanctuary consultation with all the stakeholders including the State or Union Territory concerned, MoEF&CC as also the Standing Committee of National Board of Wildlife and then approach this Court with its recommendations. (h) In respect of sanctuaries or national parks for which the proposal of State or Union Territory has not been given, the 10 kilometres buffer zone as ESZ. as indicated the order passed by this Court on 4th December 2006 in the case Goa Foundation (supra) and also contained in the Guidelines of February 2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till final decision in that regard is arrived at (i) I.A. No. 1412 2005 and I.A.No.117831 of 2019 do not relate to the issues involved I.A. No.1000 2003. These applications may be placed before the appropriate Bench to be heard independently. (j) For the same reason, I.A. No.1992 of 2007 shall WP(C) No.37324 of 2022 : 9 : also be dealt with independently by the appropriate Bench and no order is being passed concerning this application this stage. (k) The application of the State Rajasthan registered as I.A. No.3880 of 2015 relates to clarification of an order passed in the case of Goa Foundation (W.P. (C) No.460 of 2004). Let this application be placed before the Bench taking up the case Goa Foundation. (l) I.A.No.96949 of 2019 and I.A.No.65571 of 2021 are disposed of with directions that the MoEF&CC as also CEC shall proceed to take decision regard to draft proposal for ESZ made by the State of Maharashtra to the extent 03.89 kilometres and the MoEF&CC shall take final decision on that basis within period three months, said decision has not already been taken. (m) Prayers for impleadment of the applicants I.A. Nos. 984 of 2003, 1026 of 2004, 1123 2004, 1197 2004 and 1251 of 2004 are allowed. Necessary amendments may carried out these regards. (n) For the reasons already given, however, prayers of the applicants I.A. Nos.982 of 2003, 1027 2004, 1124 2004, 1198 of 2004, 1210 of 2004, 1250 2004 and 1512 2006 are rejected. (o) The CEC shall quantify compensation to recovered from each of any statutory provision order Court. Specific recommendations for compensatory afforestation, reclamation, clearing overburden dumping as also compensation monetary units for degradation forest resources shall made. further recommendations concerning confiscation of earth moving equipments and other machineries lying within or periphery of the said sanctuary shall made CEC. Recommendations shall made period of four before this Court in the form an application. This Court shall consider passing appropriate going through such application. The exercise concerning such reparation, including quantifying compensation WP(C) No.37324 of 2022 : 10 : shall be undertaken giving the mining operator, State and MoEF&CC opportunity hearing. (p) In the event there is any subsisting order of High Court any Court subordinate such High covering any the issues Court this order, this order shall prevail over any such order which may be contrary these directions. (q) We have already observed there are certain overlapping issues involved in Writ Petition the of 2004) and Petition (C) No.435 2012). request the Hon'ble the Chief Justice India to consider having present Writ Petition i.e. Re: T.N. Godavarman Thirumulpad Union India & Ors., W.P.(C) No.460 of 2004 (Goa Foundation Union India) as also W.P. No.435 of 2012 (Goa Foundation Union India & Ors.) be heard together before the same Bench. The registry may place this order before the Hon'ble the Chief Justice of India.” 12. The directions given by the Hon'ble Apex Court would show that if wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular National Park or Wildlife Sanctuary awaiting final decision in that regard, then till such final decision is taken, the ESZ covering the area beyond one kilometre as proposed shall be maintained. 13. The directions at paragraph 44(h) would show that in respect of Sanctuaries or National Parks for which the proposal of a State or Union Territory has not been given, the WP(C) No.37324 of 2022 : 11 : 10 Kilometres buffer zone as ESZ, as indicated in the order passed by the Apex Court on 4[th] December, 2006 in the case of _**Goa Foundation v. Union of India** [(2006 (4) KLT Online 1110 (SC)]_ and also contained in the Guidelines of 9th February, 2011 shall be implemented. 14. The directions of the Apex Court contained in paragraph 44(p) would show that in the event there is any subsisting order of any High Court or any Court Subordinate to such High Court covering any of the issues dealt with by the Apex Court in the order, then the order of the Apex court shall prevail over any such order which are contrary to the directions. In view of the judgment of the Hon'ble Apex Court in _**T.N.Godavarman Thirumulpad**_ (supra), the writ petition is disposed of quashing Clause No.3 of Ext.P1 Environmental Clearance. **Sd/-** **N. NAGARESH** **JUDGE** sss WP(C) No.37324 of 2022 : 12 : ## **APPENDIX OF WP(C) 37324/2022** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE NO. SIA/KL/MIN/45413/2019 DATED 30.6.2022 (MINUTES OF 115TH MEETING) EXHIBIT P2 A TRUE COPY OF THE LICENSE FOR POSSESSION OF EXPLOSIVES DATED 08.06.2012 -NO.E/SC/KL/22/1438 (E68026) ISSUED BY THE CONTROLLER OF EXPLOSIVES, SOUTH CIRCLE, CHENNAI EXHIBIT P3 A TRUE COPY OF THE 'INTEGRATED CONSENT VARIATION ORDER DATED 24.09.2022 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD EXHIBIT P4 A TRUE COPY OF THE D&O LICENSE DATED 18.10.2022 ISSUED BY THE SECRETARY; KOTTAPPADY GRAMA PANCHAYATH EXHIBIT P5 TRUE COPY OF THE REPORT OF THE ASSISTANT WILD LIFE WARDEN, THATTEKKAD BIRD SANCTUARY DATED 12.10.2021 EXHIBIT P6 THE TRUE COPY OF THE JUDGEMENT IN WP(C) NO. 25750 OF 2021 EXHIBIT P7 THE TRUE COPY OF THE DRAFT NOTIFICATION OF THE ESZ OF THE THATTEKKAD BIRD SANCTUARY DATED 29.09.2020**